On the 23d day of February, 1928, the defendant, James Grimes, and Margaret L. Murray were duly married at Sioux City, Iowa. On the 31st day of March of the same year a petition was filed by Margaret Grimes against James Grimes asking an annulment of this marriage on the ground that James Grimes was not a single man at the time she married him. On April 6, 1928, a decree was entered annulling the marriage. Margaret then went to her former home in Massachusetts, and later, in July, 1931, she returned to Sioux City, bringing with her her son, and she and Grimes took an apartment consisting of three rooms, where they set up housekeeping on the representation of Grimes to her that the annulment of their marriage was not legal. They were occupying said apartment at the time charged in the indictment.
The basis of the charge of adultery in this indictment is founded on a claim that at and before the marriage with Margaret, and at the time alleged in the indictment, the defendant was the common-law husband of one Mae Govers, and had been such since 1924. The crucial question in the case is whether or not this common-law marriage existed at the time charged in the indictment.
Evidence on the part of the state tends to show that the relation between defendant and Mae Govers commenced in 1924, and the jury might find from the evidence that they lived together and cohabited until some time in February, 1928, when Mae Govers saw a notice of this marriage between the defendant and Margaret Murray in the newspaper. After the decree in the annulment case, Mae Govers says that Grimes moved back to her home and remained there with her until Margaret Murray returned from Massachusetts in July, 1931, when he again left and established a home with Margaret.
As a basis for the alleged common-law marriage, a written contract was introduced in evidence reading as follows: *Page 1289
"Sioux City, Iowa, "Thursday, April 17, 1924
"We the under Signed. James Grimes and Mae Govers do hear by agree to live as Husband and Wife untill such time that we are Lawfully married and I Mae Govers reserves the right to use the name of Mrs. James Grimes or Mae Govers as I Prefer. untill we are Lawfully Married.
"[Signed] James Grimes "Mae Govers."
There is a dispute in the testimony as to when this writing was signed by the defendant, but from all of the testimony it is quite apparent that it was not signed at the time it bore date. Mae Govers testified that it was drawn up by her in 1928, and dated back at the request of the defendant. The actual date of the signing is somewhat uncertain, but the jury were authorized to find that it was somewhere between the 3d and 7th of February of that year. She testified in relation to the same "their marriage was annulled I think on the 9th of April. That (the contract) was made out after the annulment." The question at this point is, Is this writing a sufficient foundation on which to base a common-law marriage?
In the case of Pegg v. Pegg, 138 Iowa 572, loc. cit. 575,115 N.W. 1027, 1028, this court said:
"It must be conceded that the voluntary signing of a written instrument of agreement to regard each other as husband and wife does not alone create the relation of marriage between a man and a woman. * * * We recognize so-called common-law marriages as valid; but for such a marriage to be valid there must be a present agreement to be husband and wife, followed by cohabitation as such. * * * That a mere written or oral agreement to be husband and wife, without present intention to assume that relation in fact, does not constitute a marriage between the parties, especially if the agreement is entered into for some other purpose, is well settled."
Contracts of this character may be per verba de praesenti; that is, where the parties take each other in the present tense, implying that the marital relation is constituted immediately, and contracts per verba futuro, which implies no more than the parties will marry each other at a later time. Contracts of the former sort, when duly acted upon, create a valid marriage; while words evidencing only *Page 1290 the intention to be married in futuro are ineffectual even where followed by cohabitation. This distinction is marked out in the Pegg case, supra, and seems to be quite the universal rule. See 38 C.J. 1319.
In the Pegg case, supra, the substance of the written agreement was that "each party this day takes the other party to be his spouse". That case was one in which the agreement was that on the signing of the writing, the marriage, — so far as the contract was concerned, — was at that instant consummated. In other words, it was not a contract to be married in the future; their intention being that they would then and there assume the marriage relation, and the marriage contract was completed. This line of authority is the basis of the following cases: Love v. Love, 185 Iowa 930, 171 N.W. 257; In re Estate of Wittick,164 Iowa 485, 145 N.W. 913; Blanchard v. Lambert, 43 Iowa 228, 22 Am.Rep. 245.
In re Estate of Medford, 197 Iowa 76, 196 N.W. 728, we held that mere proof of cohabitation is not a sufficient foundation for a holding that a common-law marriage existed.
In re Estate of Boyington, 157 Iowa 467, at page 476,137 N.W. 949, 952, we held:
"It is well settled that, where cohabitation is in its beginning illicit, affirmative proof of a subsequent present intention to change that relation into the legitimate relations of husband and wife is essential to establish a marriage."
These rules seem to be quite well-settled in this state. Turning now to the writing above set out, and analyzing the same, we find that the parties "do hereby agree to live as husband and wife". What does this mean?
In re Foley's Estate, 76 Colo. 286, 230 P. 618, loc. cit. 620, it is said:
"An agreement to live together as man and wife has been held not to be marriage. Letters v. Cady, 10 Cal. 533. It is open to the interpretation of an illicit relation resembling that of marriage."
This agreement does not carry on its face the required element of a present intention to assume the legal relation. The agreement further proceeds:
*Page 1291"Until such time that we are lawfully married."
This portion of the agreement, taken in connection with the other part, indicates that there was no intention at the time of the signing of the same to consider it a marriage because the last clause negatives the idea of a lawful marriage, or shows an intention that the relations they assumed were not those of a lawful marriage. In other words, the contract, taken as a whole, on its face shows that whatever the relations were that were entered into by these parties, based on this contract, were understood by both not to be a lawful marriage. It necessarily follows from this conclusion that, therefore, so far as this contract is concerned, the state has not established its claim that Mae Govers was the common-law wife of the defendant.
It is to be further said that the relation between Mae Govers and the defendant was commenced in 1924, and this alleged contract was not signed (if it were signed) by the defendant and Mae Govers until some time in 1928 or 1929. At the most it could only be evidence as admissions of the parties, and could not be a basis for claiming a common-law marriage as to matters which occurred prior to the time it was actually made.
It is suggested on the part of the state, however, that there are other and further facts introduced by the state, aside from this contract, which made a question for the jury on the whole record as to whether or not a common-law marriage existed. Without setting out the details of these matters, we have scanned the record with care and are unable to find sufficient facts of the existence of the relation of a common-law marriage to make a jury question. From a reading of the record in the case as it was tried in the lower court, we think this last contention was an afterthought. We think the court erred in sending this case to the jury. — Reversed.
KINDIG, C.J., and EVANS, STEVENS, MITCHELL, DONEGAN, and ANDERSON, JJ., concur.
UTTERBACK, J., dissents.