Opinion of the Court-Coleman, C. J.

defendant on that point, and believed that of plaintiff, is evident. This it had a perfect right to do. Dixon v. Miller, 43 Nev. 280, 184 Pac. 926. We think the conduct of the defendant, the manner of living of the parties, as shown by the undisputed evidence, and all the circumstances, constitute corroborative evidence supporting the testimony of the plaintiff.

4. That such a marriage contract, followed by cohabitation as husband and wife, such as is shown by the record is sufficient to constitute a common-law marriage, and cannot be doubted. Parker v. De Bernardi, 40 Nev. 361, 164 Pac. 645.

But aside from the view we have expressed, we think the judgment should be affirmed upon another ground. The defendant admits a course of conduct, a manner of living with the plaintiff after the removal of the impediment, which shows clearly that he must have regarded himself as the husband of the plaintiff, to all intents and purposes. She had a perfect right to assume, as did his mother, that he was accepting her as his wife in truth and in fact. He admits that plaintiff was kind and good toward him. Even had he not entered into the second marriage contract with her, it was his evident intention, until he became enamored of Emily James Clark, that she should regard him as her husband.

5. In view of the fact that this is purely a contest between the parties, we are satisfied, from the facts, that the defendant should be held estopped to deny that he is the husband of the plaintiff. The instant case, so far as the defendant's conduct and situation is concerned, is similar to that of Mason v. Mason, 101 Ind. 25, where it is said:

"If the appellant intermarried with the appellee in ignorance of the inhibition resting upon her, he might, doubtless, within a reasonable time have procured an annulment of the marriage. But it is not averred that he was ignorant of this inhibition, and we must hence assume that he was not ignorant of it. The answer impliedly admitted that the appellant, for more than

VOL. 44-5

Sanders, J., concurring

two years after the decree against Butcher had become absolute, and with full knowledge of all the facts, had lived and cohabited with the appellee as her husband, and that the separation did not result from any supposed irregularity in their marital relations. The facts thus admitted amounted to an unconditional ratification of the marriage of the appellant with the appellee, and to a full recognition of its validity. The appellant was, consequently, estopped from setting up the unlawfulness of the marriage in the first instance, as a defense to the complaint against him for a divorce"-citing authorities.

For the reasons given, it is ordered that the judgment be affirmed.

DUCKER, J.: I concur.

SANDERS, J., concurring in the order:

Uninfluenced by any matter or thing contained in the opinion of the Chief Justice upon the rehearing of this cause, I reaffirm the decree of divorce, for the reasons stated in my former opinion.

I consented to a rehearing of the case because, upon most careful consideration of the petition therefor, I felt that there possibly was a reasonable probability that I had permitted myself to fall into error in my holding to the effect that parties who had entered into a formal marriage, which was invalid because the man had a wife living, continued cohabitation after the man's former wife secured a divorce, though no new marriage agreement or change in relations was shown, establishes a valid marriage.

Upon further consideration of this proposition, as qualified and limited by the particular facts upon which it is predicated in this case, I reach the conclusion that, if there is virtue in the doctrine established by commonlaw marriages, simple justice and sound morals impel me to adhere to the proposition upon this rehearing. I

Argument for Appellant

also reiterate what was strongly stated in my former opinion, that no court, nisi prius or appellate, is authorized to make a finding at variance with the pleadings and outside of the issue. Such finding and decision should be, and is, treated as a nullity.

I concur in the order.

[No. 2426]

PHOEBE BOSWELL CLARK, APPELLANT, v. ALLEN LABEN CLARK, RESPONDENT.

[189 Pac. 680]

1. DIVORCE-COURT MUST GIVE WIFE ONE-HALF OF PROPERTY OF HUSBAND DIVORCED FOR INFIDELITY.

Under Civil Practice Act, sec. 27 (Rev. Laws, 5843), as amended by Stats. 1915, c. 211, entitling the wife when divorce is granted for the husband's adultery to the same proportion of his property as if he were dead, the court, in granting a divorce to a wife on that ground, has no discretion to allot her monthly alimony, but must give her one-half of her husband's property.

APPEAL from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Action for divorce by Phoebe Boswell Clark against Allen L. Clark. From so much of the decree of divorce as allowed plaintiff monthly alimony instead of a share of defendant's property as claimed by her, plaintiff appeals. Reversed and remanded for new trial on the issue of the property rights.

Frame & Raffetto, for Appellant:

The court erred in refusing to award plaintiff onehalf of the separate property of the husband. The law on the subject is plain. "When a divorce shall be ordered for the cause of adultery committed by the husband, the wife shall be entitled to the same proportion of his lands and property as if he were dead." Rev. Laws, 5843.

Opinion of the Court-Sanders, J.

"It would hardly be claimed than when the marriage is dissolved by the husband being sentenced to imprisonment or for his adultery, the court could award the wife either more or less of his property than she would be entitled to receive if he were dead." Lake v. Bender, 18 Nev. 361. Upon the death of the husband, in the absence of living issue, the wife is entitled to one-half of his separate property. Stats. 1913, p. 56.

Hoyt, Norcross, Thatcher, Woodburn & Henley, and John D. Hoyt, for Respondent:

There is no proof in the case upon which a judgment for a specific portion of defendant's property as though he were dead could be based. There was no proof that defendant had any specific property whatsoever, nor respecting what disposition the law would have made of his property were he dead at the time of the trial. Neither was there any proof as to whom his heirs at law might be, or what portion of his property they would have taken. A judgment affecting property rights must be specific, and there must be specific property to decree.

By the Court, SANDERS, J.:

This appeal is taken by Phoebe Boswell Clark from a decree of divorce in her favor on the ground of adultery committed by her husband, Allen L. Clark. The appellant does not wish to have the decree of the court reversed so far as it dissolves the marriage contract between the parties, but asks this court to vacate that part of the decree of divorce that purports to award appellant $125 per month for her support until the further order of the court, and declares said allowance to be a lien upon the separate property and property rights of the defendant to secure its payment. In her notice of appeal appellant states that she appeals to this court only from that part of the judgment as relates to the property rights of the parties, and from that part of an order denying her motion for a new trial of the issues respecting the property rights alone of the

Opinion of the Court-Sanders, J.

parties. It appears that in her complaint for divorce she alleges in general terms that the community and separate property of the parties in the possession and under the control of defendant is of the value of $40,000 or $50,000, and exhibits with and makes a part of her complaint a paper designated an inventory, giving the description of the alleged property and purporting to show its value. She then demands judgment that the defendant be compelled to account to plaintiff for all the property, and upon said accounting that the court determine what portion of the property is community and what is separate, and that the property be divided in such manner as shall be just and equitable, and in accordance with law.

The court, in one of its findings of fact, states there is no community property of the parties, and finds that defendant is the equitable owner of 9,999 shares of the capital stock of the Allen L. Clark Company, a corporation holding real estate of the value of dollars,

and that a reasonable amount to be paid by defendant for the support of the plaintiff is the sum of $125 per month.

Counsel for appellant state in their brief that there is but one question involved on this appeal, and that is whether or not the court erred in refusing to award Phoebe Boswell Clark one-half of the separate property of the defendant; hence this opinion will be confined to the answer of the query: Did the court err in the particular specified?

It is the contention of counsel for appellant that, the court having granted to her an absolute divorce from defendant on the grounds of adultery alone, under and by virtue of section 27 of the Civil Practice Act (Rev. Laws, 5843, as amended by Stats. 1915, p. 324), plaintiff is entitled to the same proportion of the lands and property of defendant as if he were dead.

Section 27, as amended, in part reads as follows: "When the marriage shall be dissolved by the husband being sentenced to imprisonment, and when a divorce