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does not support. McKibbin v. McKibbin, 139 Cal. 448, 73 Pac. 143.

6. But it is in effect argued that this rule of practice should not be indulged here, because the trial judge based his decision upon the single finding that after the impediment was removed the parties agreed to take each other as man and wife. We are unable to agree with this view of the finding. What the individual opinion of the trial judge may have been as to the amount of evidence required to transform cohabitation, illegal in its origin, into actual matrimony, may be of some doubt, but from our examination of the entire evidence, read in connection with the court's decision, we are of the opinion that the unobjectionable findings are the ones which in the opinion of the trial judge control the judgment. We should hesitate to say that a court would be so indifferent to a fundamental rule of pleading as to arbitrarily attempt to grant relief on an entirely different state of facts and which involved different principles of law from those stated in the pleading.

It is further insisted that, the parties being domiciled in the State of California at the time of the alleged removal of the impediment to their marriage, under the laws of California (section 55, Civil Code, as amended by Stats. 1895) nothing short of an actual contract of marriage, as distinguished from the mere presumption which arises from cohabitation and repute following the removal of an impediment, would suffice to support this action. We are of the opinion that the evidence supports the finding that the parties lived and cohabited together as husband and wife in the State of Nevada prior and subsequent to the date of the removal of the impediment to their marriage, and the law of Nevada controls. Parker v. De Bernardi, supra.

7. The writer of this opinion is impressed that the plaintiff brought her suit not so much to obtain the personal benefits of a divorce but to receive its incidentsa division of the defendant's separate property, acquired

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by him several years after his separation from the plaintiff as heir and distributee of his deceased father's estate, alleged to be of the value of $40,000 or $50,000. The defendant, however, does not plead as a defense the insincerity of the plaintiff or her lack of good faith. Therefore the writer yields to the majority of the court, who take the view that the matter of the defendant's innocence in contracting the marriage with Emily James, the plaintiff's sincerity, and her laches all entered into the merits of the case and are presumed to have been weighed and considered by the trial court in arriving at its ultimate conclusion, and this court will not disturb the decree.

The marriage status of the parties having been established, and being of the opinion that the evidence is sufficient to justify the conclusion of the trial court, we affirm the decree of divorce, and leave that portion of the judgment that purports to award to the plaintiff permanent alimony of $125 per month to be considered on the plaintiff's appeal from that portion of the judgment.

ON REHEARING

By the Court, COLEMAN, C. J.:

While on the original hearing in this matter some question as to the pleadings was urged, it was not renewed in the petition for a rehearing, and we shall content ourselves on this point by saying that the pleadings on the part of the plaintiff in the case are far from models. However, as the case was tried on its merits, with the evident idea on the part of both parties that only one question was involved, viz, "Is the plaintiff the lawful wife of the defendant?" we feel that we should devote no consideration to the question of the pleadings, beyond stating generally that they are sufficient to support the judgment. It may be said that none of the attorneys now in the case were connected with it at the time the issues were being made up. We will state briefly the salient points in the case:

In the year, Allen L. Clark was married to Mary

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E. Clark. Thereafter, and on August 6, 1892, believing he had been divorced from Mary E. Clark, he entered into a ceremonial marriage with Phoebe Boswell Clark, the plaintiff in this action, and continued to live and cohabit with her as her husband, and to publicly acknowledge her to the world as his wife until February, 1910, when he left her. Though a suit for divorce had been instituted by Mary E. Clark prior to the ceremonial marriage to Phoebe Boswell Clark, through neglect or delay of some kind the decree of divorce was not entered until 1893, after the ceremonial marriage to Phoebe Boswell Clark. The plaintiff did not become aware of the prior marriage of the defendant until several years, when both she and defendant learned that the latter had been divorced from Mary E. Clark in 1893, which we think it safe to say was at least three or four years prior to the desertion of the plaintiff by the defendant in February, 1910. In February, 1910, the defendant entered into a ceremonial marriage with Emily L. Clark, who died without issue prior to the bringing of this action. The decree in the case found the facts to be substantially as above stated, and specifically found:

"That the said parties intermarried at Winnemucca, Nevada, on the 6th day of August, 1892; that at the time of the marriage the defendant had a wife living in the State of California, who had commenced in that state a proceeding against the defendant on the 20th day of July, 1892, and on the 10th day of April, 1893, a minute order was entered in that proceeding, granting to the defendant's then wife, Mary E. Clark, a divorce, and on March 6, 1906, a decree of divorce absolute was signed and entered; that at the time of the marriage between plaintiff and defendant the plaintiff had no knowledge of any other woman claiming to be the wife of defendant; that said marriage was entered into in good faith, and that during all the times from said date of marriage and up to about the year 1910 the plaintiff and defendant lived and cohabited as husband and wife, and held themselves out to the world as such

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husband and wife during all of said times; that during said period of time a child was born to the marriage, which died; that the parties lived together as husband and wife and held themselves out to the world as such in the States of California and Nevada after the marriage of Mary E. Clark and defendant had been annulled; that a marriage contract was entered into between the plaintiff and the defendant after the impediment to the defendant's marriage was removed by the divorce which was granted to defendant's former wife in California, and that said parties continued to live together as husband and wife pursuant to said agreement until the year 1910, when defendant left the plaintiff in the State of California, came to Reno, Nevada, and there on the 16th day of February, 1910, entered into a supposed marriage contract with and was wrongfully and unlawfully married to one Emily James; that plaintiff and defendant ever since said marriage have been, and now are, husband and wife.”

Counsel for appellant, in their original brief, as well as in their petition, and upon the oral argument, made a vigorous assault upon that portion of the findings wherein it is held that a marriage contract was entered into between the parties after the decree of divorce had been entered in the said suit of Mary E. Clark v. Allen L. Clark. Strenuous objection is taken by appellant to the statement of the law laid down in the former opinion in the following language:

"We accept and reaffirm the general rule that, if parties desire marriage and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant, and continued after the disability is removed, will, in law, make them husband and wife from the moment that such disability no longer exists, although there are no special circumstances to indicate that the parties expressly renewed their consent or changed their mode of living after the removal of the impediment."

The serious objection urged to this statement goes

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to the language that the conduct in question "makes them husband and wife." Counsel say:

"It is most earnestly contended that the text quoted and applied by this court does not correctly state even the 'general rule' of law; that the mere fact of cohabitation after the disability is removed does not 'make them husband and wife'; that such statement, as an unqualified abstract proposition of law, is not only not the general rule, but is contrary to the overwhelming, if not the unanimous, voice of authority; that the true rule would, in the excerpt quoted, substitute for the words 'make them man and wife' the words 'raise a presumption or inference that the parties agreed to be man and wife.'"

It is evident that the drafter of the former opinion, in using the words "make them husband and wife," was speaking relative to the particular case, rather than with the view of laying down an abstract rule of law. However, we may say that there are reputable authorities holding that, where parties in good faith enter into a ceremonial marriage and cohabit as man and wife for several years, and then learn that at the time of such ceremonial marriage the husband had a wife living, and that such former wife procured a divorce about a year after the second marriage, and after learning of the removal of such impediment the parties continue to cohabit as man and wife and hold themselves out to the world as such for a period of years, the court may presume from such conduct that a contract of marriage was entered into after the parties learned of the removal of the impediment. But in view of the facts in this case, and of the finding of the trial court, we do not deem it necessary to determine this point.

1,2. The trial court found that, after plaintiff and defendant had discovered that the plaintiff was married at the time of the contracting of the ceremonial marriage between them, they entered into a contract of marriage. Marriage is a civil contract, into which