By the Court,
Sanders, J.:This is an action for divorce on the ground of adultery, brought by Phoebe Boswell Clark against Allen L. Clark in the district court of Washoe County, commenced on the 26th day of December, 1917, and ending in a decree in her favor on the 30th day of September, 1919. The cause was tried before the court without a jury. The defendant appeals to this court from an order denying his motion for a new trial and from the judgment.
The facts are stated in the pleadings. The complainant alleges that plaintiff and defendant intermarried on or about the 6th day of August, 1892, at Winnemucca, Nevada, and that said marriage has never been annulled and the bonds of matrimony existing between plaintiff and defendant have never been dissolved, and that they are husband and wife. She alleges that since said marriage on or about February 16, 1910, defendant entered into a contract of marriage and had a marriage ceremony performed between himself and one Emily James, and ever since has lived openly with said Emily James as his wife, and during all of said time held her out to be his wife and lived openly and notoriously in adultery with her and been guilty of a continual and systematic course *49of adultery with said Emily James, all of which remains uncondoned and unforgiven.
The defendant by his answer denies that plaintiff and defendant on or about the 6th day of August, 1892, at said place, or at any other time or place, dr at all, intermarried, and he denies that plaintiff and defendant then, or at any other time, became and now are husband and wife, but, on the contrary, on the 6th .day of August, 1892, and for a long time prior and subsequent thereto, he had a wife living, to wit, Mary E. Clark. He admits that he intermarried with said Emily James on the 16th day of February, 1910, admits that he openly lived with her as his wife, and alleges that said Emily James is his lawful wife.
For reply to the bar pleaded in defense of her action plaintiff alleges that on the 10th day of April, 1893, the defendant was divorced from said Mary E. Clark by the superior court of Sacramento County, Calif., and that the impediment to the marriage of the plaintiff and defendant was at that time removed, and there has been no impediment to their marriage since said date. She further alleges that, at the time of the intermarriage between plaintiff and the defendant, plaintiff had no knowledge of Mary E. Clark, and no knowledge that defendant had been, or claimed to have been, married before his marriage with plaintiff, and plaintiff never did have knowledge -of such fact until a time subsequent to the filing of the complaint in the present action. She further alleges that from the time of her intermarriage with the defendant, and also from and after the 10th day of April, 1893, until a period subsequent to February 16, 1910, plaintiff and defendant lived and cohabited together as husband and wife, and defendant never during all of said time informed plaintiff that she was not his lawful wife and that he had a former wife, and she alleges that by reason of the cohabitation between plaintiff and defendant subsequent to said decree of divorce between defendant and said Mary E. Clark, as aforesaid, *50the plaintiff became, and ever since has been, and now is the common-law wife of said defendant, and as such entitled to all the privileges and benefits of matrimony, and in truth and in fact the wife, and the only wife, of said defendant, and that plaintiff and defendant are husband and wife.
The trial court upon the conclusion of the case took ample time to consider its decision, and wrote a lengthy opinion reviewing the testimony and filed special findings of facts. One of those findings, and the one which is the foundation of plaintiff’s right to a-divorce, is in substance as follows:
That the parties intermarried at Winnemucca, Nevada, on the 6th day of August, 1892; that at the time of the marriage the defendant had a wife living in the State of California, who had commenced in that state a proceeding against the defendant on the 20th day of July, 1892, and on the 10th day of April, 1893, a minute order was entered in that proceeding granting to the defendant’s then wife, Mary E. Clark, a divorce, and on March 6, 1906, a decree of divorce absolute was signed and entered; that at the time of the marriage between plaintiff and defendant the plaintiff had no knowledge of any other woman claiming to be the wife of defendant; that said marriage was entered into in good faith, and that during all the times from said date of marriage and up to and about the year 1910 the plaintiff and defendant lived and cohabited as husband and wife and held themselves out to the world as such husband and wife during all of said times; that during said period of time a child was born to the marriage, which died; that the parties lived together as husband and wife and held themselves out to the world as such in the States of California and Nevada after the marriage of Mary E. Clark and defendant had been annulled; that a marriage contract was entered into between the plaintiff and the defendant after the impediment to the defendant’s marriage was removed by the divorce which *51was granted to defendant’s former wife in California, and that said parties continúed to live together as husband and wife pursuant to said agreement until the year 1910, when defendant left the plaintiff in the State of California, came to Reno, Nevada, and there on the 16th day of February, 1910, entered into a supposed marriage contract with and was wrongfully and unlawfully married to one Emily James; that plaintiff and defendant ever since said marriage have been, and now are, husband and wife.
The objections interposed to this finding furnish the grounds for'this appeal. While numerous errors have been assigned, they have been condensed and are discussed under three leading propositions: First, that the pleadings do not state a cause of action against the defendant; second, there is a material variance between the pleadings and proof (and the decision of the court) that entitled defendant to require plaintiff to amend her pleadings; third, there is no evidence whatever of any contract of marriage between plaintiff and defendant.
For convenience we will consider the assignments in their order.
1. First, the pleadings do not state a cause of action. If we clearly interpret the somewhat- involved argument, it is the contention of the learned counsel for appellant that the pleadings do not state a cause of action, in that the marriage relation is not alleged or shown to exist. From this premise it is argued that, since the plaintiff alleges in her pleading that at the time of her marriage to the defendant she had no knowledge of Mary E. Clark, the defendant’s former wife, and no knowledge that the defendant had or claimed to have had a former wife living until after she had commenced her action, it would be folly to assume that after the impediment to their marriage had been removed the parties consented or mutually agreed to take each other as husband and wife, and that in the absence of such averment the complaint is defective. The main question, therefore, to be *52determined is whether the marriage of the parties, although illegal at the time of its solemnization by reason of a legal impediment, such as the existing prior marriage of the defendant, became legal by virtue of the removal of the impediment, whether known or unknown. Counsel contend that the inference of marriage as alleged in the complaint is rebutted, because the parties had commenced to live together in pursuance of an invalid marriage, and that the consent deducible from continued cohabitation after the impediment was removed must be referred to the invalid ceremony. We are not in accord with this doctrine. It must be conceded that the marriage, although invalid, was undoubtedly a consent by the parties to live together as husband and wife; and their subsequent continued cohabitation as man and wife for a period of approximately eighteen years is proof of continued consent. Eaton v. Eaton, 66 Neb. 676, 92 N. W. 995, 60 L. R. A. 605, 1 Ann. Cas. 199. The question of consent to marry is sufficiently covered by the case of Parker v. De Bernardi, 40 Nev. 361, 164 Pac. 645.
We accept and reaffirm the general rule that, if parties desire marriage and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant and continued after the disability is removed will, in law, make them husband and wife from the moment that such disability no longer exists, although there are no special circumstances to indicate that the parties expressly renewed their consent or changed their mode of living after the removal of the impediment; and, even though the removal is unknown, continued cohabitation thereafter evidences consent to live in wedlock. 18 R. C. L. 436, where the . cases in support of the doctrine are collated in the notes.
2. Taking the facts as stated in the complaint, and applying the law to them, we are of the opinion that, assuming the ignorance of the plaintiff of the invalidity *53of her marriage with the defendant during the whole period of their cohabitation, yet after the removal of the impediment to their marriage they became married persons, and the complaint shows, as in other cases, a valid marriage. Eaton v. Eaton, supra; Chamberlain v. Chamberlain, 68 N. J. Eq. 736, 62 Atl. 680, 3 L. R. A. (N.S.) 224, 111 Am. St. Rep. 658, 6 Ann. Cas. 483.
3. It is further insisted that the proof relied upon to show the adultery of the defendant would convict the defendant of the crime of bigamy, and the stronger presumption of the defendant’s innocence of crime overcomes the presumption of the marriage of the parties from cohabitation and repute alone. We fail to appreciate the argument that the marriage of the parties is based upon habit and repute alone. The plaintiff declares on an actual marriage, illegal at the time of its solemnization, it is true, but became legal by virtue of the removal of the impediment and continued matrimonial cohabitation. If plaintiff’s marriage to defendant be thus established, and the defendant entered into a subsequent marriage with Emily James and cohabited with her as man and wife, he is certainly guilty of adultery. The rule of presumption of the defendant’s innocence in such case is not inflexible or to be applied baldly to every conceivable state of facts. The presumption at most is rebuttable, and its proper application depends upon the attending facts and circumstances of the particular case. Whether the presumption is one of law or fact it is not necessary to decide, because, as stated, in either case it is rebuttal. We conclude that the force of the presumption of the defendant’s innocence in cohabiting with Emily James under a subsequent and an actual marriage is not so strong as to be or become a fixed rule of law that may be taken advantage of by demurrer to a complaint which alleges the defendant’s subsequent marriage to Emily James to be an adulterous act.
4. The second and third assignments of error are *54that the court, after trial had and its decision rendered, erred in not requiring plaintiff, upon motion of defendant, to amend her pleading and proof and the insufficiency of the evidence to support the finding that after the impediment to their marriage was removed the parties entered into a contract of marriage or presently agreed to take each other as man and wife and continued to live as man and wife pursuant to said agreement until the year 1910. There is no doubt that this particular part of the finding is in variance with the pleading, and may be said to be clearly outside the issue; but the fact that a finding has been made outside the issue does not warrant the granting of a new trial. Such an objection is available only on appeal from the judgment. Power v. Fairbanks, 146 Cal. 614, 80 Pac. 1075. We therefore shall consider these assignments upon the theory that the pleadings and the findings do not support the judgment. We are in entire accord with the statement made by counsel that there is no evidence whatever to support the finding that the parties after the removal of the impediment to their marriage contracted or presently agreed to take each other as man and wife and continued to live together as such pursuant to their agreement. This finding, as above stated, is in variance with the pleading and outside the issue. It is unwarranted and will be treated as a nullity. Deaner v. O’Hara, 36 Colo. 476, 85 Pac. 1123; Boothe v. Bank, 47 Or. 299, 83 Pac. 785; O’Brien v. Drinkenberg, 41 Mont. 538, 111 Pac. 137; Kimball v. Success Co., 38 Utah, 78, 110 Pac. 872.
5. But in view of the other findings, not disputed, we are of .the opinion that the unauthorized finding is not prejudicial. With it stricken out and disregarded, it is undoubtedly true that the remainder of the finding is clearly within the issue, and there is no lack of evidence to support it.
If there are findings to support the judgment, and these findings are supported by the evidence, it is immaterial that there are other findings which the evidence *55does not support. McKibbin v. McKibbin, 139 Cal. 448, 73 Pac. 143.
6. But it is in effect argued that this rule of practice should not be indulged here, because the trial judge based his decision upon the single finding that after the impediment was removed the parties agreed to take each other as man and wife. We are unable to agree with this view of the finding. What the individual opinion of the trial judge may have been as to the amount of evidence required to transform cohabitation, illegal in its origin, into actual matrimony, may be of some doubt, but from our examination of the entire evidence, read in connection with the court’s decision, we are of the opinion that the unobjectionable findings are the ones which in the opinion of the trial judge control the judgment. We should hesitate to say that a court would be so indifferent to a fundamental rule of pleading as to arbitrarily attempt to grant relief on an entirely different state of facts and which involved different principles of law from those stated in the pleading.
It is further insisted that, the parties being domiciled in the State of California at the time of the alleged removal of the impediment to their marriage, under the laws of California (section 55, Civil Code, as amended by Stats. 1895) nothing short of an actual contract of marriage, as distinguished from the mere presumption which arises from cohabitation and repute following the removal of an impediment, would suffice to support this action. We are of the opinion that the evidence supports the finding that the parties lived and cohabited together as husband and wife in the State of Nevada prior and subsequent to the date of the removal of the impediment to their marriage, and the law of Nevada controls. Parker v. De Bernardi, supra.
7. The writer of this opinion is impressed that the plaintiff brought her suit not so much to obtain the personal benefits of a divorce but to receive its incidents— a division of the defendant’s separate property, acquired *56by him several years after his separation from the plaintiff as heir and distributee of his deceased father’s estate, alleged to be of the value of $40,000 or $50,000. The defendant, however, does not plead as a defense the insincerity of the plaintiff or her lack of good faith. Therefore the writer yields to the majority of the court, who take the view that the matter of the defendant’s innocence in contracting the marriage with Emily James, the plaintiff’s sincerity, and her laches all entered into the merits of the case and are presumed to have been weighed and considered by the trial court in arriving at its ultimate conclusion, and this court will not disturb the decree.
The marriage status of the parties having been established, and being of the opinion that the evidence is sufficient to justify the conclusion of the trial court, we affirm the decree of divorce, and leave that portion of the judgment that purports to award to the plaintiff permanent alimony of $125 per month to be considered on the plaintiff’s appeal from that portion of the judgment.