Burns v. Stevens , 236 Mich. 443 ( 1926 )

Plaintiff complains that the defendant has represented to his employer and to societies of which he is a member and to others that she is his common-law wife, and that she has assumed his name as such. He alleges that such representation on her part is false; that his reputation is liable to be impaired thereby, and that by reason thereof he is liable to lose his position and to be refused recognition as a single man. He prays that defendant be enjoined from further repetition of such representations and from using his name as his wife, and that he "be decreed to be free from any matrimonial alliance or espousal with the said defendant." In her answer defendant avers that she and the plaintiff entered into a common-law marriage in the month of January, 1919, and that they lived together as man and wife until on or about May 6, 1922, during which time she was supported by him and introduced by him to others as his wife. After a consideration of the proofs offered, the trial court concluded that no marriage relation ever existed between the parties, and entered a decree as prayed for by plaintiff. Defendant appeals.

While plaintiff admits that he many times proposed marriage to defendant, he testified that she at all times refused to marry him. He admits that he lived at her home from January, 1919, until May, 1922, but testified that he paid for his room while there. What are known as common-law marriages are recognized as valid in this State.People v. Pizzura, 211 Mich. 71 (10 A.L.R. 405), and cases cited. In Judson v. Judson, 147 Mich. 518, it was said:

"The test is this: Did they presently agree to take each other for husband and wife, and live together in that relation?"

It is not sufficient that they agree to live together as husband and wife with the intention to marry at some future time. Griffin v. Griffin, 225 Mich. 253.

A careful reading of the record satisfies us that no such marriage was ever entered into between these parties. On June 6, 1921, they entered into a land contract to purchase a cottage at Ox Bow lake in Oakland county, in which their names Edward Burns and Clara Stevens appear as vendees, and defendant testified that she insisted on having it so. Each of them contributed a part of the down payment. An acquaintance, Mrs. Matilda Geiger, testified that in March, 1922, she heard plaintiff ask defendant "for an answer to his proposal of marriage," and that defendant said, "I would never marry you, I have no intention of marrying you," that defendant told her they "never had anything to do with one another, that was what is claimed then as a common-law wife," and that she then said to defendant, "Clara Stevens, I shall never call you Mrs. Burns again. Never, if that is the case." Several other witnesses testified to statements of similar import made by her.

Defendant as a witness testified that their married relation began in 1919 and continued until their separation in 1922. She fails to state any particular occasion when an agreement to live together as husband and wife was entered into. She admits that she signed her name "Clara Stevens" to several receipts given by her in 1922, that this name at all times appeared in the telephone book, and states that they were delaying the ceremony of marriage until they had the cottage paid for. There is proof that plaintiff introduced defendant as his wife, and, while he denies it and she also denied it to Mrs. Geiger, the record is quite convincing that they occupied the same bed and cohabited together for several years. But the testimony does not establish a common-law marriage. It lacks the element of a present agreement to take each other for husband and wife.

The decree is affirmed, with costs to appellee.

BIRD, C.J., and STEERE, CLARK, and McDONALD, JJ., concurred with SHARPE, J.