sides, mostly by ex parte affidavits, and which shows the· following facts: Some time about the year 1857 or 1858, decedent resided in the town of Houston, in this state, and was engaged asa broker or money lender. At the same time a young woman by the name of Jane Hoskins was engaged in teaching music in a female academy in the same town. The former was from the state of New York, and the latter from the state of Vermont. Both occnpiedrespectable positions in society, and, as was natural, the parties became intimate as friends, if not as lovers. Some time after their acquaintance commenced, it was public talk that their intimacykad become unlawful, which resulted in her dismissal from ·her position as music teacher; and she thereupon left the town of Ho.uston,and never afterwards returned tothat place. The next information ·shown by the proof of.her whereabouts was that, some time before the year1861,.,-the precise time does not appearfrom the proof,-said A. H.Taylor.and Jane, formerly Hoskins, ware boarding together in the city of Yazoo, in this state, representing themselves as husband and and wife,. and having a daughter, whom they called Lonnie, then some two years old, and whom they represented as their child. .Decedent spentn portion of his time with his reputed wife and child, and a portion of his time attending to his business at that place. but saying nothing there about his connection with Jane, formerly Jane Hoskins. The proof shows him to have been very reticent in relation to his family and business relations. The proof further shows that when in Yazoo. City the parties passed as husband and wife, without any suspicion that they were otherwise, and that they were. so received and considered by the most respectable portion of that community; that some time during the year 1861, decedent, with his reputed wife and child. went to ville, in the state of Alabama, where they represented themselves as huSband and wife, and their child Lonnie as their child, and where they were so re.ceived and treated by the respectable portion of the nity, with no suspicions to the contrary; that during their stay in Jacksonville the defendant, John W. Taylor, was born, and was recognized by; them as their child; that during this time the little girl Lonnie died. Decedent during all this time spent part of. his time with his reputed wife and children, and part of his time in Houston, looking after his business at that place. The proof further shows, that some time during .the year 1865, decedent went with his wife and defendant, then a 'small child, to the state of New York, and procured a residence for the time on Bond street, in the city of New York, where they resided a portion of the time, visiting and remaining for some time in the town of Carmel', his former home, and the home of his family, at that time occupied by his sister; that he represented Jane as his wife, and the defendant as his son, and that they were considered as such by his 'family and that, in the fall of 1866, decedent sent Jane to Europe, to complete her musical education, and especially to train her voice,-her natural talent for vocal music being unusual, and highly appreciated by the decedent; that this was carrying out a purpose which hahad expressed sometime before,tbatjthat defendant was left with the sisters of A. H. Taylor, who
beipg,p.wido'W without children, and the other a maiden 4t.dYm-weJ1e very much devoted, to him, and that they reared him, and ,attended .to his education, until he was placed by his father in Carmel UJ;l.iveJ1Sity, where he remained, until he graduated; A. H. Taylor furl:!is said reputed.wife'withaH the lunds she needed until her retufnthEdast of 1871..A.H; Taylor,.' after 1866, returned to this state, Imdlooked after his interestlll Houston and the surrounding country, JIll!king;bishead 7 quarters in ;S:ouston,:untilJ869, when he removed to city of Corinth, where: he ,established,tbe Tishomingo Savings Institu:tic>n, of which he was the principlli stockholder, president,and principlUDlAnp.ger. He was at,the same time the owner of numerous tracts of .land .in .different· counties in this state. About the, last of the year 1871,Mrs. Taylor, as she returned to the United States, and came,to the city ofCorinth, whereA.H. Taylorthen resided. Hestated to a i lady .,friend who had known him in Houston that his wife would soon xeturn. When she ()$l,me,she brought with her a ;boy whom she (laUed .her son, then some four or five years of age. She was received byA. H, .Taylor, and treated as though she were' his wife, until some in the latter part of 1872, when an illicit intercourse was entered into betweenJ$8.idJaneand one R. T. Dunn,which being rnadeknown to A. H.; Tttylor, he repudiated her; and from that time forwa-rd the relationship wbiohhad before,that time existedoetween them ceased, and was ne,verafterwatds, renewed. In fact, feelings of hostility between them continued;, and there is testimony showing that each stated that they were not man and wife, and bad not heen married. But'Jane claimed that decedent was l1.nder obligations to pay her money, or to support her; that a settlement andoompromise was made between them, by which decedent gav.e her his obligation to pay her $250 quarterly during her life-time. Afterwards, decedent declined to continue this payment, and suit was brought in ,the circuit court of Alcorn county against him on his w.ritten obligation. ThiEl was in: the name of Jane Hoskins, alias Jane Tay1011. ,A. H.Taylor pleaded that it was procured from him undera that hewould be prosecuted for living with her in open and notorious Jewdness, and a suit for damages for breach of marriage contract. Taylor also plelLdedpayment, to which no replication was filed; but replica.tion was filed to the first plea, denying the statements made in the plea, The trllinscript furnished is very imperfect, but from it it appears that the suit was brought 30th May, 1874. The obligation was dated 4th April, 1873. The cause was continued until the January term, .1876, and again to ,the February term, 1876. There appears in the a contract pf p.greement,signed in the name of Jane Hosthe written contract upon which was brought Stanley, and William F,Doud,to secure a fee to her ()f81,OQOto Curlee &Staflley, and 81,000 to said Dond. The transcript, continuance :by'consent, and then a verdict for without dates, the, defendant by a jUl'y"and judgmeutagainst plaintiff and her security for,the costs. , This verdict and judgment does not state when rendered,
toot grea.Mnteres1i in.him,ahd,attenqed to a.llhis wants; Wat these sis-
ROBIKSON V. TAYLOR.
does not show that any judge presided, or on what issue the finding was had. These are all the facts thatneed be stated on thequestionofthe marriage of A. H. Taylor and Jane Hoskins, and on the legitimacy of the defendant, John W. Taylor, and from which I am satisfied that there was a. rumor that there was an illicit intimacy between A. R. Tltylor and Jane Hoskins, on account of which Jane Hoskins left Houston, and never a.fterwards returned to those with whom she had once had a fine social standing. This was natural. There is no direct proof that such unlawful connection existed between them, but it may be inferred from the circumstances, and if it did exist the presumption is that it continued until the parties took upon themselves a: new relation; that is, the relation of.husband and wife. This could have been done by marriage in good faith, had according to the statutes of the state, 'or under the rules of the common law; that is, by agreeing with each other to be husband and wife, and live and cohabit together as such during their joint lives, this· agreement being entered into in good faith. Such an agreementwould have constituted a tTalid marriage, and especially so when followed by oohabitationas husband and wife; and relation might be inferred .from the long cohabitation, and continued declarations that they were husband and wife, if nothing else appeared in the evidence. Not that' the cohabitation creates the marriage,Qf itself, but it is evidence of the agreement between them that they did in good faith agree to become man and wife, and did evidence the agreement by the cohabitation as such. ,Taking it for grante<;l that the relation which. existed between these parties at Houston was an unlawful one, the question is, is there evidence that that relation was changed? Then, they did not represent themselves as husband and wife. Afterwards, they did so repreSent themselves, and were so considered and treated by those who knew them,snd by his family and kindred. And, if there were no, other evidence in' the CRse, I am of opinion that the common-law marriage between these parties might be presumed; the presum ption of law. being that when a man and woman live together as husband and wife, and declare themselves to be such, they are lawfully married, and their children born while so living are legitimate children. But for this' presumption, I could not establish the marriage of myself and wife, which took place nearly 57 years ago, as the record's of the marriage are less destroyed,and there is not a living soul who witnessed it; and the same may be said of thousands of others. If a common-law marriage between the parties did take place, then no declaration on their. part could annul. it. The next· question is, do the conduct and the declarations of the ties after Jane went to Europe rebut this presumptive evidence of'R. common-Jaw marriage between the parties? It is insisted by complain:" ants' counsel. that the absence from A. H. Taylor for so long a time, of itself, rebuts this presumption. But it is not denied that A. iB. Taylor fumishedthe money for her support during this time, and 'of this there is proof. If it is unusual for a husband spd ·wife to besep;-
arated so long, it cedainly would be Jbore unusual for a paramour to furnish the money to support his mistress for so long a separation. So that.this'Jactis not sufficient to rebutthe presumptiol1of marriage; and this is especially so since it appears that he received her, and treated her,. ias.' his wife upon her return.. But it is insisted that the son she brought .:with her was, an illegitimate.child, and that, if the parties were legitimately married, A. H. Taylor would not have received her, and represented her as his wife. But the age of the child when she returned, and the time oithe absence, do not show that A. H. Taylor was not his lather, ,There is more force in the, conduct and declaration of the parties afterthe illicit imtercourse commenced, and was known. between Jane, the,reputecl wife oithe decedent, and R. T. Dunn; , This illicit intercourseestL'anged the, parties towards each other. After this, decedent did not like to admitlthat she was his lawful wife, llnd did not desire to be responsible for' her ,debts, or anything else growing out of the marHe undoubtedly hated her, and desired to repudiate her, for· this want of fidelity towards him, the first which the proof shows. Dunn had, by his arts as a ,seducer, won her affections; and in proportion as he had enamored her" and drawn all her affection::: from A. H.Taylor, in this proportion she hated him, and did not like to admit that she had broken her marriage vow. I do not believe there was a statutory marriage between the pa.rties; and it is possible that they did not, when, this changed ,relation between them occurred, believe that anything;short of a,statuto:ryand formal marriage, solemnized bya.min" ister ora civil officer, was legal marriage, although a cOlumolhlaw marriagehadexisted them; and hence they made the declaration that they had not been married. insisted on the part of complainants that the. bringing of the Hut suit in the. name of Jane, Hoskins, and the pleadings, verdict, and judgment in the'circuit court of Alcorn. county, are conclusive that these parthe name of Jane ties weremever married. The bringing of the suit Hoskinswae the only way in which.it could have been brought, and especially$oiuhder the changed relations which the parties had assumed towards each other; and while it is a circumstance, to be considered, tendil1gto show that a 1l1lirriage had not taken place between the parties, the history;.ofthe lawsuit j as shown. by the transcript, verdict, and judgment, fallefar short of establishing that A. H. Tllylor and Jane Hoskins were never married.' Taking the whole proof together, if the case were on,fiDal hearing, on proof regularly taken, ,1 would hesitate long in pronouncing that the' proof as now presented,if regularly taken, establishes, or does not establish, a valid marriage between these .parties; and this doubt ismueb' greater when on ex parte affidavits mostly written by>the.; iparties or their. ,counsel without cross.examination. But, as can Huffer .no great harm by balding for the present that the a prima jacie right to the estate in litigaantl.8eamistake'ltgai116tthem might work an injury to,complil.inants, 1 ,forthEi'pu,rpose of the motion, hold that they have a prima facie righUothe.prdperbyin litigation., ,),