The Daily Ardmoreite. [volume] (Ardmore, Okla.) 1893-current, 1911-02-17
JUDGE RUSSELL
AFF|RMS CO. COURT
HANDS DOWN OPINION IN DIS
TRICT COURT RELATIVE TIC
COMMON LAW MARRIAGES.

That a casual agreement U5tween
Choctaw Indian man ana woman
to live together rs man and wife,
both being under age, until they
could become of 1ge ard have a
ceremony performed by license and
according to the avs of the state
which agreement was followed by
a cohabitation for a shor. period OF
time and holding ot themselves
out in one or two Instances as man
and wife, does not constitute com
mon.law marriage under the laws in
force in territorial days, was decid-
ed by Judge Stillwell II. Russell
in an opinion handed down by him
in the district court today.
The suit originated in the county
court The plaintiff, a Choctaw girl
named Frances Ned, brought the
suit against Tom Jackson to estac-
lish her right to homestead, al
leging that she was the common law
wife Of Jackson. From her own tes-
timony it was shown that Jackson
had met her on the street in Ard
more, some time in 1905, and that
he proposed an agreement of mar
riage, saying that he was not Gf
age, but that when he did reach
his majority that he would marry
her by license, or, in the plaintiffs S
language, Tom Jackson, he say
he going to get married, but not of
age-not enough age" This consti-
tuted the agreement between them.
Subsequently, after living together
first in one house and then anoth-
er for period ranging, according
to the testimony, from a period Of
three or four months to a year and
a half, they separated. After the
separation Frances Ned gave birth
to a boy baby, which one of the
witnesses testified was short and
had round face" in those respects
at least resembling the supposed faith
er, Tom Jackson.
The court in passing upon the
case said:
"a common law marriage, like
any other marriage, must be a status
arising from contract between a
man and woman who thereby rec
iprocaily engage 10 live with each
other during their joint lives and
to discharge towards each other the
duties imposed by law on the rela-
tion of husband and wife.
The books make two divisions Or
branches, so to speak, of the COM
mon law marriage contract, one, the
marriage pro verba de present., and
the other pro verba de future cum
copula-or, translated into plain
English, one case where the mar.
riage is entered into by words Of
contract spoken in each others pres,
ence, thereby making a meeting of
the minds. and the other, a mar
riage evidenced by words looking
to a future time of consummation
but made as of the present time by
continued cohabitation, which show
that the future proposition has been
abandoned by the parties and a
present agreement entered into.
But, in any case, the minds of
the parties must meet and the en-
easement to marry must be made
If in the future, there is not a
present marriage, but an agreement
to marry, and the mere act of CO.
habitation does not change the
agreement"
Judge Russell held that the agree,
ment made between Frances Ned
and Tom Jackson was, in effect,
an agreement to marry at some
time in the future and did not con.
stitute a present marriage-that il
was nothing more than a marriage
in expectancy"
Good faith, integrity of purpose
and honesty and fidelity of inten
ion,' said the court, "are the touch.
stones to be applied in interpreting
the agreement. The testimony in this
case all tends strongly to prove
that the relation between the par.
ties was meretorious one in its
inception rather than an agreement
or contract OF marriage clothed
with that good faith which public
policy and the solemnity of civil
society demands and that it was
such a relation as both parties felt