
    William Gerhold, plaintiff in error, v. Josephine Wyss, defendant in error.
    Marriage: formal but void: cohabitation: support. A man formally married to a woman, who, because of her insanity, which he discovered very soon afterwards, was incapable of entering into the marriage contract, and continuing thereafter voluntarily to cohabit with her as his wife, is under a legal obligation to support her. And having furnished such support, he cannot, upon a decree of separation on the ground of the invalidity of the marriage, make the same a charge against her separate estate.
    Error to the district court for Platte county. Tried below before Post, J.
    
      John G. Higgins and Whitmoyer, Garrard & Post, for plaintiff in error.
    
      Byron Millatt, for defendant in error.
   Lake, Ch. J.

The question to be decided in this case is simply whether the plaintiff is entitled to compensation out of the defendant’s estate for his support of her while they cohabited as husband and wife.

Upon the issue as to cohabitation after the plaintiff had discovered that the defendant ivas insane, and therefore unable to enter into a marriage contract, the referee made no finding; therefore, that they did so cohabit will be presumed. The plaintiff learned of the defendant’s insanity within a very few days after they were formally married, which was “in September or October, 1867,” yet he voluntarily continued the cohabitation, for aught that appears, up to the very time of the decree of separation in September, 1881.

Under such circumstances the plaintiff surely stands in no more favorable • attitude than he would if he had lived with her ostensibly as his wife, without the performance of any marriage ceremony at all. And it seems to be an established rule that if a man live with a woman, holding her out as his wife, he renders himself liable for necessaries furnished her by others upon the strength of lier conjugal rights. 3 Waifs Actions and Defenses, 649, and cases there cited.

We are of opinion that upon the solemnization of the marriage between these parties in 1867, tlie relation of husband and wife prima facie was established and that, as to tlic plaintiff, so long as he voluntarily continued this relation, he thereby subjected himself to tlie attendant obligation of providing the defendant with a suitable support, and having furnished such support he cannot, upon a decree of separation, make the same a charge upon her separate estate. We find nothing in the record that calls for correction, and the judgment .must be affirmed.

Judgment affirmed.  