Andrews v. Andrews

12 S.W. 1124, 75 Tex. 609, 1890 Tex. LEXIS 1534

• Court: Court of Appeals of Texas
• Decided: January 17, 1890
• Docket: No. 2739
• Status: Published

Opinion

GAINES, Associate Justice.

The appellant, as plaintiff in the court below, brought this suit against appellee for a divorce, and for a division of property alleged to have belonged to them in common. A general demurrer was sustained to the petition and the suit was dismissed. In this there was no error. The petition is insufficient even upon general demurer. The allegations in reference to the marriage of the parties are as follows: “That the plaintiff and defendant are negroes, are husband and wife, and lived together as husband and wife from the-day of August, 1867, until about the-- day of August, 1885, continuously, having been both precluded by the laws of bondage from the rights of matrimony, and having been living together in such relations August 15, 1870.”

If the petition had alleged that the parties were husband and wife at the time the defendant committed the acts which are complained of as grounds for a divorce, it would have been sufficient. But the allegations only show that they were husband and wife at the time the petition was filed, and fail to show at what time that relation was established.

We infer from the brief that it was the object of the allegations which have been quoted to aver that the parties mutually agreed presently to become husband and wife in 1867, without the rites of matrimony being solemnized by any one authorized by law to perform that ceremony, and that they had continued ever since to live together as husband and wife "until August, 1885. But the averment merely is that they have continuously lived together as husband and wife from 1867 to 1885. The fact that they had lived together as husband and wife would in some cases be evidence of the fact that that relation existed between them. But in pleading it can not be taken as the equivalent of an allegation of marriage. The pleading does not contain any statement that such cohabitation was in pursuance of any contract of marriage. They may have lived together as husband and wife without being married. The Act of August 15, 1870, in reference to persons who had been held in bondage, was intended to legalize the marriage between slaves when they had made a present contract of marriage and had continuously lived together as married persons in pursuance of such contract. Even if we should hold that the statute applied to marriages between freedmen and freedwomen contracted in 1867 (which we do not hold), the allegations, we think, would still be insufficient to show a marriage. If it had been averred, however, that the plaintiff and defendant mutually agreed presently to be husband and wife, we would have had the question whether such contract, even in the absence of any ceremony by a person authorized to solemnize the rites of matrimony, would not have been a valid marriage at common law. But the petition lacks such averment, and we need not consider that question.

The demurrer to the petition was properly sustained, and the judgis affirmed.

Affirmed.

Delivered January 17, 1890.