Oil Producing Co. v. State Bd. of Equalization

QUIET TITLE — MARRIAGE — COMMON LAW MARRIAGE — EVIDENCE OF MARRIAGE — APPEAL AND ERROR. 1. Marriage — "Marriage per verba de praesenti". To constitute a "marriage per verba de praesenti", the parties must agree to become husband and wife presently, and the consent which is the essence of such marriage contract must be mutual and given at the same time, and it must contemplate a present assumption of marriage status. 2. Marriage — Marriage does not result from cohabitation alone. A lawful marriage must have been entered into by the parties at some particular time and such marriage does not result from mere cohabitation alone. 3. Marriage — When date of marriage is established. The date of a marriage, established by conduct, cohabitation and repute, is the date of the commencement of such conduct and repute and not afterwards. 4. Marriage — One claiming marriage has burden of proof. In action to quiet title to realty as against woman claiming to be the common law wife of plaintiff, she had the burden of proving by a preponderance of the evidence that conduct, cohabitation and repute, relied on to establish such marriage, commenced at the time such marriage allegedly took place and that by her conduct she had given her consent. 5. Marriage — Evidence failed to show reputation of marriage. Evidence failed to show any repute in the community or neighborhood that plaintiff and defendant were married. 6. Marriage — Elements of "common law" marriage. Mutual consent of parties able to consent and competent to enter into a ceremonial marriage and assumption of marital relationship by consent and agreement as of a time certain, followed by cohabitation and repute, are necessary to effect a "common law marriage". 7. Marriage — Course of conduct necessary. To effect a common law marriage, the parties must enter upon a course of conduct to establish their repute as man and wife, and such course of conduct must be complete and sincere and not partial. 8. Marriage — Reputation of marriage is necessary. By "repute" essential to effect a common law marriage is meant reputation or the character and status commonly ascribed to ones actions by the public. Page 176