Opinion
(June Term, 1845.)
1. The record sent up to this Court should not state the points of law arising on the trial which were decided by the judge below against the party in whose favor is given the final judgment, from which the other party appeals.
2. Where a marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is a want of age or understanding, or a prior marriage still subsisting, the marriage is void absolutely and from the beginning, and, as between the parties themselves and those claiming under them, no rights whatever are acquired by such marriage.
3. And whether a marriage was void or not may be inquired into by any court in which rights are asserted under it, although the parties to the marriage be dead.
4. In the trial of an action for a slave, a party was permitted to prove by parol the contents of a bill of sale under which he had claimed and held possession of the slave for more than thirty years, the bill of sale having been destroyed by the burning of the register's office.
5. The uninterrupted possession of a slave for a long time, even before the act of 1820, Rev. Stat., ch. 65, sec. 18, affords a strong presumption of a good title in the possessor, unless reasonably rebutted by a fiduciary relation, an acknowledged bailment, disability of the one alleged to be the real owner, or the like.
(488)
APPEAL from MONTGOMERY, Spring Term, 1845; Pearson J.
Strange, with whom was Winston, for plaintiff.
Detinue for a slave, Dick, the issue of a female slave named Olive; and the plaintiff claimed him under a sale by one Henry Williams, and the defendant claimed as the administrator of Joseph Herring and as the administrator of Nancy Williams. Upon the trial the case appear-to be this: Joseph Herring owned the negro Olive (the mother of the slave in controversy), and in 1796 made a deed of gift of her to his daughter, Nancy Herring, but reserving therein the use of the negro to himself for life; and in that year Joseph Herring died, and Henry Williams and Nancy Herring intermarried. After the death of the said Joseph, his widow and children divided his property among them, and Williams and his wife took possession of Olive as her property, and from that time (the latter part of the year 1796), up to October, 1836, Henry Williams was in possession of the said Olive and her issue, claiming and treating them as his own. It, however, appeared that in 1789 Henry Williams intermarried with Sarah Parker, who shortly afterwards eloped and never lived with him again, but she lived up to 1825. From the intermarriage of said Williams and Nancy Herring they were reputed and lived together as man and wife, and had a large family of children, among whom was the present defendant. She died in 1818, intestate, and during her life never set up any title in herself to the negroes, nor claimed the possession, but acquiesced in the exclusive possession held by Williams and the title claimed by him. In 1836 the defendant obtained administration of the estate of his mother, and claimed the negroes and got them out of the possession of Henry Williams, and while they were so out of his possession Henry Williams made a contract of sale of the slave Dick to the plaintiff and executed a bill of sale, and in a few days afterwards the said Henry regained possession of Dick and delivered him to the plaintiff and received the purchase money, $600. The defendant again got Dick into his possession and, after a demand and refusal, the plaintiff brought this action in February, 1837. The defendant subsequently took out administration also on the estate of Joseph Herring. For the purpose of showing the conveyance from Herring to his daughter the plaintiff (489) produced a copy of the deed, which purported to be made by said Herring to his daughter and to be attested by two witnesses, and he showed that Henry Williams had been in possession of the original from 1796 until after this suit was brought, and claimed the said negroes under it, and that it had been subsequently burnt in the court house, and that the subscribing witness had been long dead. The defendant objected to the reading of the said copy, without proof of the execution of the original, but the court admitted it.
Counsel for the plaintiff moved the court to instruct the jury that upon the evidence they might presume a valid conveyance from Joseph Herring or his administrator to Henry Williams or to Nancy Williams, alias Herring; and the court gave the instruction that such conveyance to the said Nancy might be presumed.
Counsel for the plaintiff also moved the court to instruct the jury that, after the death of the said Nancy, the validity of the marriage, which was in fact celebrated between her and Henry Williams, could not be questioned by the defendant, but as her administrator he was concluded thereby; and, further, that the jury might presume upon the evidence, if necessary to the plaintiff's title, a conveyance from the said Nancy to the said Henry. And the court gave the instruction as prayed for in respect to the presumption of a conveyance; but, as that rendered the other part of the instruction unnecessary the court declined giving the same, though his Honor deemed it correct in point of law.
There was a verdict for the plaintiff, and judgment being rendered accordingly, the defendant appealed.
If it were admitted that the instruction prayed (493) for as to an estoppel on the defendant to deny the marriage of his parents, was correct, and that it was erroneous to refuse it, the judgment rendered in favor of the person against whom the error operates could not be affected; for that would be no ground for reversing it, nor could it for that reason be affirmed if, for some other error against the appellant, it ought to be reversed. It is to be regretted, therefore, that such points should be stated in the record, as they almost necessarily draw the Court into discussions not material to the decision of the cause, in order to avoid an inference from our silence of an approbation of the position. Such is the case on this occasion, as counsel for the plaintiff has pressed this point in the argument here. We have therefore to say that we think that part of the instruction was properly refused, not because it was immaterial, but because it was entirely erroneous. The death of one of the parties to this marriage makes no difference as to the power of inquiring into its validity for any and all purposes. There is a distinction in the law between void and voidable marriages where, even, they were regularly solemnized. The latter, which are sometimes called marriages de facto, are such as are contracted between persons who have capacity to contract marriage, but are forbidden by law from contracting it with each other, as to which, therefore, there was a jurisdiction in the spiritual courts to declare the nullity of the marriage. But until the nullity was thus declared, as an existing marriage it was recognized as valid both in the canon and the common law; and, as there can be no proceeding in the ecclesiastical court against the parties after their death or that of one of them that event virtually makes the marriage good ab initio to all intents, and the wife and husband may have dower and curtesy and the issue will be legitimate. Co. Lit., 32, 33. But where the marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is want of age, or understanding, or a prior marriage still subsisting, the marriage is void absolutely and from the beginning, and may be inquired of in any court. For, although (494) in such case there may be a proceeding in the ecclesiastical court, it is not to dissolve the marriage, but merely, for the convenience of the parties, to find the fact and declare the marriage thereupon to have been void ab initio, and no civil rights can be acquired under such a marriage. It is said to be no marriage, but a profanation of marriage, and the factum is a nullity. Thus, "if a man seized of land take a wife, and, during the marriage he taketh another wife, and the husband die, leaving both wives, the latter shall not have dower, because the marriage between them is void., And if a woman take a husband, and, living the same husband, she marrieth another, who is seized of land, and the second husband dieth, she shall not have dower of his land: causa patet. Perk. 3, 304, 305." The same doctrine is laid down by Lord Holt in Hemming v. Price, 12 Mod., 432, and is found in Riddlesden v. Wogan, Cro. Eliz., 858, and in many other cases. Bigamy repels the right to administer on the estate of the husband or wife and to a distributive share, and to the acquisition by the husband of the personal property of the wife by the marriage. Upon these points there are numerous cases in the English books; and we have acted on the same principles in this State. Irby v. Wilson, 21 N.C. 508; Brinegar v. Chaffin, 14 N.C. 108. As to the manner of inquiring into matters of this sort, it cannot be doubted that it must be by the jury, as of any other question of fact or mixed question of fact and law. Owing to the peculiar division of jurisdiction between the ecclesiastical and common law courts in England it was held in early periods that no special matter avoiding a marriage, as bigamy for example, could be specially pleaded in a real action, but that the plea must be in the general form of ne unques accouple in loyal matrimonii, and that, upon issue joined thereon, a writ was sent to the bishop of the diocese within which the other party alleged the marriage to have been celebrated, and his certificate in return was conclusive both of the fact and legality of the marriage. Dyer, 368; Robins v. Crutchby, 2 Wils., 122. But that necessarily could only extend to marriages within England, for (495) the bishop had no better means of inquiring into the fact of marriage in another country than the civil judge, and had no more authority to pronounce on its legality. Hence it is clear law in England that as to foreign marriages the plea must conclude to the country and the trial be by the jury and not by certificate. Ilderton v. Ilderton, 2 H. Bl., 159. A fortiori it must be so here, as we have no bishops who have a legal ecclesiastical jurisdiction to determine on marriages and certify them. Of course this conclusion is a complete answer to the notion of an estoppel, for what the law pronounces void cannot estop. It may be true that, as respects third persons, people who hold themselves out to be man and wife may be responsible, as if they were what they profess to be, as a man may be liable for articles furnished to a woman he calls his wife and lives with. But it cannot affect the right of property as between themselves.
With respect to the opinions given against the defendant, which alone are properly before us, as the defendant is the appellant, we concur with his Honor. If the doctrine of admitting an ancient deed, that is, one more than thirty years old, without proof of execution, is to apply to any conveyance of a chattel, it ought to do so to this; as the possession of the property and the custody of the deed have been, during the whole time, in the same hands under a notorious claim of title, and it is actually proved that the witnesses have both been long dead. If then the original had been produced it would seem that, under the rule, it ought to have been read. If that be so, as its destruction while in the custody of the law has been clearly established, a copy is necessarily evidence, for the copy is sufficient to establish the contents of the original in such a case, and that is the whole purpose for which the original would be produced. But, without determining that point, we think it was evidence, and very strong evidence, in aid of the length of time and other circumstances, on which the jury might and ought to presume a conveyance from Joseph Herring, the original owner of the slave. Here a man has been in exclusive possession of a female (496) slave for forty years, taking her immediately upon the death of the former owner, and raising a number of children from her, and all the time claiming them under a deed from the former owner, which he had in his possession and showed, under which a life interest was reserved to the maker of the deed, and the absolute property given to a person under whom the possessor claimed. The unqualified possession for so great a period, by itself, affords a high presumption of a title; but when to it is added the fact that the possessor really had an instrument purporting to be a deed from the former owner, that never was impeached by any relative or representative of the former owner, it amounts to plenary evidence on which to found a presumption that there was a conveyance by this instrument, as a genuine one, or by some other.
In like manner, as between themselves, we think the actual possession of Henry Williams, which is stated in the case to have been exclusive and on a claim of right by him against every person — including, therefore, Nancy Herring — continued from 1796 to 1818 in the lifetime of Nancy Herring, without any claim of title by her, and with acquiescence in his claim of title and possession; and such possession of Williams continued farther to 1836, without any question of its rightfulness by any person claiming under her, does afford a very strong presumption in fact and law that in some manner he had acquired her title, whatever it was. It is true that those two persons lived together, and that, though not man and wife, they were reputed and acted as such; and, therefore, it might be a question in which of them the possession was, as prima facie it would be deemed to be with the title. But that point is not left to inference, as it is stated affirmatively that Henry Williams had the possession, and that it was claimed exclusively by him, and that in that claim the other party acquiesced without setting up any in herself. Under such circumstance the character of the possession is not dubious, but clearly in Henry Williams upon an assertion of right in himself adverse to all others. As Nancy Herring was then sui juris, she is affected by such possession, as any other person would be; and there can be no (497) doubt that her action for the slave would have been barred by the statute of limitations. So, too, the possession for the great length of time is ground for presuming a conveyance from her as from any other person. That we ought in this State to apply such a presumption to slaves in a peculiar manner is clearly to be deduced from the act of 1820, which makes a possession that would protect the possessor from the action of the owner under the statute of limitations, that is, three years adverse possession, the owner being under no disability, amount in itself to a title. That act does not reach the present case, because Nancy Herring died two years before it passed. But the policy which dictated it requires the court to adopt and apply the doctrine of the presumption of a conveyance to the case of slaves in a peculiar manner. So much of the substance of our citizens consists of slaves, and the right of property in them is so vigilantly guarded, and the inconveniences arising from divesting the possessors of female slaves after long possession and the charge of bringing up their families are so manifest, that the Legislature felt bound to make the short adverse possession of three years constitute a good title; and in like manner calls upon the courts and juries to presume a good title upon long possession, unless reasonably rebutted by a fiduciary relation or an acknowledged bailment, disability of the owner, or the like.
PER CURIAM. No error.
Cited: Williams v. Brawley, post, 536; Calloway v. Bryan, 51 N.C. 571; Koonce v. Wallace, 52 N.C. 197; Sims v. Sims, 121 N.C. 299.
(498)