White

This is an action for a divorce a vinculo on the ground of adultery, brought by plaintiff, Jane White, against the defendant, Lorenzo E. White, Judg *429 rnent was recovered by plaintiff; defendant moved for a new trial. This motion was denied, and defendant brings this appeal from the judgment and order.

The defendant denied that he was ever married to the plaintiff. He claims that their relations during the whole period of the cohabitation were those of man and mistress. On this issue the court found against him.

The court found the following facts: The plaintiff, Jane White, arrived in this state in the month of May, 1850. She was then a young widow of twenty or twenty-one years of age, with an infant of tender age. In the month of July, 1850, the defendant at the city of San Francisco engaged the plaintiff to act as housekeeper for him on the rancho San Gerónimo, situate in the county of Marin, at a compensation of one hundred dollars per month. In pursuance of this engagement plaintiff w^ent to the place of defendant, the San Gerónimo ranch, to act as housekeeper, and did there act as housekeeper for defendant. Shortly after the arrival of plaintiff at the house of…

I concur in the judgment. I think that the first part of the second finding negatives every allegation of extreme cruelty made by the defendant, and that a separate finding upon that subject was unnecessary. The other errors of law, if they were errors, are of so insignificant a nature as that they could not possibly have changed the result.

It is true that consent lies at the foundation of every marriage, and without consent there can be no marriage. But as was said in Campbell v. Campbell, cited by Mr. Justice Thornton, there are cases in which a tacit consent will be inferred. Even under our code it will be presumed “that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.” (Code Civ. Proc., sec. 1963, subd. 30.) And after a quarter of a century of that kind of deportment toward each other and toward the world, the parties ought to be estopped to deny such presumption. Then the conclusive presumption arising under subdivision 3, section 1962, of the Code of Civil Procedure, ought to prevail: “Whenever a party has by his own .... act or declaration .... intentionally and deliberately led another to believe a particular thing…

I dissent. To my mind the evidence shows conclusively that these parties were never married. Cohabitation and repute may be suffi *454 cient to raise a presumption of marriage, and if undisputed authorize a judgment to that effect. But here the testimony of both of the parties shows beyond any question, not only that the intercourse of these parties was illicit in the beginning, but that it continued to be so up to the time of their separation. The positive and direct evidence of both of the parties is, that there never was any promise or agreement to marry or to live together as husband and wife. Therefore, the evidence of cohabitation and repute, which in this case is extremely weak and unsatisfactory, cannot and should not prevail. A mere presumption of a marriage arising from cohabitation cannot stand as against positive evidence to the contrary by both of the parties interested.

Rehearing denied.