Smith, C-. J.,
delivered the opinion of the court.
This is a suit begun by the appellant, the husband,- for the purpose of having his marriage with the appellee declared void, or, if that cannot be done, for a divorce, [752]*752and the appeal is from an interlocutory decree awarding the appellee, the wife, alimony pendente lite.
The bill of complaint alleges that the marriage of the appellant to the appellee is void for the reason that at the' time it was solemnized the appellee had a living husband. The appellee’s motion for alimony pendente lite was heard by the court below on the testimony of herself alone in support thereof and on the testimony of the appellant alone in opposition thereto. From their testimony it appears that they agree upon the following facts: They were married at Orownpoint, Ind., in October, 189®, and that the appellee had been formerly married to one Perrin, who was then living; that in 1902 the appellee sued for and obtained a divorce from Perrin in the city of Chicago on the ground of desertion; that the appellant and the appellee lived together as, and were considered by themselves and the public to be, husband and wife for about twenty-five years, twelve of which, immediately preceding the year 1918', were spent by them in the state of Mississippi; that in October, 1918, this suit was begun by the appellant. It does not appear where the appellant and the appellee lived after their marriage at Crownpoint; Ind., until they came to 'Mississippi. The validity of the divorce granted the appellee in Chicago is not questioned by tbe appellant, but, on the contrary, he alleges it in his bill of complaint and filed a copy of it as an exhibit thereto.
The appellee testified that after Perrin deserted her Jae wrote to her, stating that he had obtained a divorce, and that she could marry again if she so desired; that she believed this to be true and informed the appellant prior to their marriage that she had been divorced from her former husband; that in 1902 Perrin came to see her and suggested that they obtain a divorce, the expense of which would be defrayed by him; that she informed the appellant thereof, and that he raised no [753]*753objection thereto, only inquiring who was going to pay the expense of the proceeding; that after the divorce was granted sire asked the appellant “if he' didn’t think that we had better remarry, but he said that everything would be O. K.”; that some time in 191,8 the appellant forced her to leave .him and then brought this suit.
The appellant testified that the appellee told him at the time of their marriage that her former husband was dead, but that some months thereafter, he having become suspicious of the truth of that statement, she told him that she had been divorced from Perrin; that he did not discover that this was not-true and that the appellee obtained a divorce from Perrin in 1902 until some time during the year 1918. On cross-examination he admitted that she might have told him in 1902 of her intention to obtain a divorce from Perrin; that he did not recall her having told him, but would not swear that she had not. In answer to the question, “You won’t say that you did not have that information?” he replied, “I might have; you understand one is information and one is knowledge.”
Marriage being the foundation of the husband’s obligation to support his wife (McFarland v. McFarland, 64 Miss. 449, 1 So. 508), the correctness vel non of the decree of the court below awarding the appellee alimony pendente lite depends upon whether or not it appears from the testimony, at least prima facie, that the appellee is the lawful wife of the appellant (Reed v. Reed, 85 Miss. 126, 37 So. 642).
The marriage of the appellee to the appellant in 1893 at Crownpoint, Ind., being void for the reason that she was then the wife of another, the question for decision is whether or not their relations after the appellee obtained the divorce from Perrin in 1903 has resulted in a common-law marriage. _
[754]*754Judges Stevens, Cook, and Smith are of the opinion that the decree of the court below should be affirmed, but Judges Ethridge, Sykes;, and Holden are of the opinion that it should be reversed. Consequently, because of the equal division of the Judges on the question of the correctness vel non of the decree of the court below and in obedience to the maxim. “Semper prcesumitur pro negante,” the decree of the court below must be affirmed.
Proceeding now to set forth the reasons for the opinion of Judges Stevens, Cook, and Smith, two questions arise. First, is a common-law marriage valid in Mississippi? and, second, does the evidence- disclose a common-law marriage between the parties hereto?
Prior to the Code of 1802 a common-law marriage was undoubtedly valid in this state, and such a marriage is expressly recognized by section 3249, Code of 1906 (section 2556, Hemingway’s Code). As this statute appears in the Code of 1892:, as section 2864 thereof* it is as follows:
“A marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall be essential to the validity of a marriage.”
But when brought forward in the Code of 1906 as section 32491 (Hemingway’s Code, section 2556), the following language was added thereto:
“But no irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law.”
The two provisions of this statute seem to be in conflict, but, if the two methods therein dealt with by which the bonds of matrimony may be entered into are kept in mind the seeming conflict will disappear. The first of these methods is a ceremonial marriage solemnized pursuant to a license obtained therefor, which marriage will be valid and binding, although not followed by co[755]*755habitation. The second is that prescribed by the common law, which is an agreement between a man and woman to then and there become husband and wife followed by cohabitation. Taylor v. State, 52 Miss. 84; Floyd v. Denny Calvert, 53 Miss. 37; Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. 278, 28 L. Ed. 822; Herd v. Herd, 194 Ala. 613, 69 So. 885, L. R. A. 1916B, 1243; Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1 Ann. Cas. 1915C, 1011.
In most of the states where a common-law marriage is recognized such a marriage may be formed merely by the the use of words of present assent, per verba prcesenti, though not followed by cohabitation, but the common-law marriage referred to in the statute here in question must, of course, be held to be suich as this court had recognized prior to the statute’s enactment; in other words, the statute deals with the common law of the state of Mississippi.
This court has not heretofore expressly decided that' a common-law marriage is authorized by the statute hereinbefore set forth, but that such a marriage is so authorized seems to have been assumed in Thompson v. Clay, 120 Miss. 190, 82 So.
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Smith, C-. J.,
delivered the opinion of the court.
This is a suit begun by the appellant, the husband,- for the purpose of having his marriage with the appellee declared void, or, if that cannot be done, for a divorce, [752]*752and the appeal is from an interlocutory decree awarding the appellee, the wife, alimony pendente lite.
The bill of complaint alleges that the marriage of the appellant to the appellee is void for the reason that at the' time it was solemnized the appellee had a living husband. The appellee’s motion for alimony pendente lite was heard by the court below on the testimony of herself alone in support thereof and on the testimony of the appellant alone in opposition thereto. From their testimony it appears that they agree upon the following facts: They were married at Orownpoint, Ind., in October, 189®, and that the appellee had been formerly married to one Perrin, who was then living; that in 1902 the appellee sued for and obtained a divorce from Perrin in the city of Chicago on the ground of desertion; that the appellant and the appellee lived together as, and were considered by themselves and the public to be, husband and wife for about twenty-five years, twelve of which, immediately preceding the year 1918', were spent by them in the state of Mississippi; that in October, 1918, this suit was begun by the appellant. It does not appear where the appellant and the appellee lived after their marriage at Crownpoint; Ind., until they came to 'Mississippi. The validity of the divorce granted the appellee in Chicago is not questioned by tbe appellant, but, on the contrary, he alleges it in his bill of complaint and filed a copy of it as an exhibit thereto.
The appellee testified that after Perrin deserted her Jae wrote to her, stating that he had obtained a divorce, and that she could marry again if she so desired; that she believed this to be true and informed the appellant prior to their marriage that she had been divorced from her former husband; that in 1902 Perrin came to see her and suggested that they obtain a divorce, the expense of which would be defrayed by him; that she informed the appellant thereof, and that he raised no [753]*753objection thereto, only inquiring who was going to pay the expense of the proceeding; that after the divorce was granted sire asked the appellant “if he' didn’t think that we had better remarry, but he said that everything would be O. K.”; that some time in 191,8 the appellant forced her to leave .him and then brought this suit.
The appellant testified that the appellee told him at the time of their marriage that her former husband was dead, but that some months thereafter, he having become suspicious of the truth of that statement, she told him that she had been divorced from Perrin; that he did not discover that this was not-true and that the appellee obtained a divorce from Perrin in 1902 until some time during the year 1918. On cross-examination he admitted that she might have told him in 1902 of her intention to obtain a divorce from Perrin; that he did not recall her having told him, but would not swear that she had not. In answer to the question, “You won’t say that you did not have that information?” he replied, “I might have; you understand one is information and one is knowledge.”
Marriage being the foundation of the husband’s obligation to support his wife (McFarland v. McFarland, 64 Miss. 449, 1 So. 508), the correctness vel non of the decree of the court below awarding the appellee alimony pendente lite depends upon whether or not it appears from the testimony, at least prima facie, that the appellee is the lawful wife of the appellant (Reed v. Reed, 85 Miss. 126, 37 So. 642).
The marriage of the appellee to the appellant in 1893 at Crownpoint, Ind., being void for the reason that she was then the wife of another, the question for decision is whether or not their relations after the appellee obtained the divorce from Perrin in 1903 has resulted in a common-law marriage. _
[754]*754Judges Stevens, Cook, and Smith are of the opinion that the decree of the court below should be affirmed, but Judges Ethridge, Sykes;, and Holden are of the opinion that it should be reversed. Consequently, because of the equal division of the Judges on the question of the correctness vel non of the decree of the court below and in obedience to the maxim. “Semper prcesumitur pro negante,” the decree of the court below must be affirmed.
Proceeding now to set forth the reasons for the opinion of Judges Stevens, Cook, and Smith, two questions arise. First, is a common-law marriage valid in Mississippi? and, second, does the evidence- disclose a common-law marriage between the parties hereto?
Prior to the Code of 1802 a common-law marriage was undoubtedly valid in this state, and such a marriage is expressly recognized by section 3249, Code of 1906 (section 2556, Hemingway’s Code). As this statute appears in the Code of 1892:, as section 2864 thereof* it is as follows:
“A marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall be essential to the validity of a marriage.”
But when brought forward in the Code of 1906 as section 32491 (Hemingway’s Code, section 2556), the following language was added thereto:
“But no irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law.”
The two provisions of this statute seem to be in conflict, but, if the two methods therein dealt with by which the bonds of matrimony may be entered into are kept in mind the seeming conflict will disappear. The first of these methods is a ceremonial marriage solemnized pursuant to a license obtained therefor, which marriage will be valid and binding, although not followed by co[755]*755habitation. The second is that prescribed by the common law, which is an agreement between a man and woman to then and there become husband and wife followed by cohabitation. Taylor v. State, 52 Miss. 84; Floyd v. Denny Calvert, 53 Miss. 37; Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. 278, 28 L. Ed. 822; Herd v. Herd, 194 Ala. 613, 69 So. 885, L. R. A. 1916B, 1243; Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1 Ann. Cas. 1915C, 1011.
In most of the states where a common-law marriage is recognized such a marriage may be formed merely by the the use of words of present assent, per verba prcesenti, though not followed by cohabitation, but the common-law marriage referred to in the statute here in question must, of course, be held to be suich as this court had recognized prior to the statute’s enactment; in other words, the statute deals with the common law of the state of Mississippi.
This court has not heretofore expressly decided that' a common-law marriage is authorized by the statute hereinbefore set forth, but that such a marriage is so authorized seems to have been assumed in Thompson v. Clay, 120 Miss. 190, 82 So. 1, and to hold otherwise would be in effect to rewrite the statute under the guise of judicial construction and to eliminate therefrom the provision recognizing common-law marriages, which provision the legislature manifestly intended to be effective.
It is not clear, or at least we will assume that it is not, from the appellee’s testimony, that she and the appellant entered into a new marriage agreement after she obtained the divorce from Perrin, but no such new agreement was necessary, for the reason that her marriage with the appellant in Indiana was entered into by both of them, according to her testimony, which the court evidently accepted as true, in good faith, under the belief that her marriage with Perrin had been dissolved, and after its dissolution in 1902 they, the appellant and [756]*756tlie appellee, continued in good faith to live together as, and considered themselves to be, husband and wife.
“Their conduct towards each other in the eye of the public (after the removal of the impediment to their marriage taken in connection with their previous association, was equivalent! in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife.” Traverse v. Reinhardt, 205, U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865.
^There has been considerable discussion as to whether a new marriage agreement must be entered into upon the removal of an impediment to a valid marriage of persons cohabiting as husband and wife. The cases dealing therewith seem to be divided into three classes, as will appear from a collation thereof in note to Turner v. Williams, 3 A. R. C. 165, and 18 R. C. L. 436. The first class, which seems to be in the majority, holding that no such new agreement is necessary in any case; the second, that no such new agreement is necessary where the marriage void because of an impediment thereto was contracted in good faith; and the third, and this class seems to be in the minority, that such new agreement is necessary in all cases
The majority rule is thus aptly and concisely set forth in 1 Bishop on Marriage, Divorce, and Separation, 422:
“If the parties desire marriage, and do what they can to render their union matrimonial, yet one of them is under a disability, as where there is a ipxior marriage undissolved, their cohabitation, thus matrimonially meant, will in matter of law make them husband and wife from the moment when the disability is removed; and it is immaterial whether they knew of its existence, or its removal, or not.”
The principle underlying the decision of Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E, 1230, would seem to require this court to align itself with those courts deciding the first of these classes of cases,, but [757]*757the case of Thompson v. Clay, 120 Miss. 190, 82 So. 1, clearly belongs to the second of these classes; for, while it was therein held that such a new agreement was necessary, it was also specifically pointed ont that both of the parties to the void marriage knew of the impediment thereto, from which it necessarily follows that it was not entered into by them in good faith.
That it does not appear from the evidence where the parties hereto lived after the rendition of the decree divorcing the appellee from Perrin until they came to Mississippi, which seems to have been in the year 1906, is of no consequence, for the reason that, whether or not their relations resulted in a valid marriage in any state in which they may have lived after the rendition of the Perrin divorce decree and 'before they came to Mississippi their conduct towards each other here, “taken in connection with their previous association, was equivalent in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife.” Travers v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865.
Affirmed and remanded.