Noland, &c. v. Noland's adm'r, &c. CASE 47-PETITION EQUITY-DEC. 1. Noland, &c. v. Noland's adm'r, &c. APPEAL FROM CLARK CIRCUIT COURT. 1. LAND MUST BE IDENTIFIED IN THE JUDGMENT DIRECTING THE SALE. Because there was no sufficient description of the land in the judgment directing the sale, it is reversed, with directions to allow the parties to amend their pleadings, etc. 2. SALE MUST BE MADE BY THE COMMISSIONER who is directed to execute the judgment. Commissioner may employ an auctioneer to cry the sale, but the sale must be made under the immediate direction and superintendence of the commissioner. A sale made by an auctioneer nine miles from the court-house, the commissioner not being present, is set aside. JUDGE PRYOR DELIVERED THE OPINION OF THE COURT A judgment was rendered in the court below for a sale of the land of James Noland, deceased, for the payment of debts. The action was instituted by the administrator, the Noland, &c. v. Noland's adm'r, &c. land was sold, and Winn became the purchaser. The widow and children of the decedent, some of whom are infants, prosecute this appeal from the judgment of sale, from the order confirming the commissioner's report of sale, and from the judgment dismissing the petition in equity styled a petition for a new trial. The purchaser of the land is made an appellee. There is no sufficient description of the land, either in the petition or judgment directing the sale, and the purchaser, although satisfied with the purchase, is unable to know from the judgment whether he has purchased the land of the decedent or not. Nor was the land sold by the commissioner directed to execute the judgment. It is conceded, and also appears from the proof of the appellees heard upon the exceptions to the commissioner's report, that the sale was made on the premises, a distance of nine miles from the court-house, by an auctioneer, under an authority delegated to him by the commissioner. We know of no rule of law authorizing or permitting the discharge of such a duty by any other agent than the one appointed by the court. In this instance, as the land had to be first offered in separate parcels, and in so doing the rights of the widow and infants protected, it was important that the commissioner should have been present so as to direct the manner of sale, that it might prove advantageous to both debtor and creditor. That he gave instructions to that effect, is no discharge of the duty imposed upon him; and although the auctioneer may have obeyed his instructions to the letter, the presence of the commissioner was indispensable. This officer, when present, may obtain an auctioneer to cry the sale, but to vest such authority in an agent without his personal supervision is not such an execution of the judgment as the law requires, and the sale should be set aside. This fact, connected with a want of description of the land to be sold, leaves the purchaser without title, and accounts for the great inadequacy in the price. Brown, &c. v. McGee, &c. "It is a general principle applicable to all judicial sales that they are to be conducted, unless differently provided for by statute, by a person designated for that purpose in the license order or decree, or under his immediate direction and superintendence, but he may employ an auctioneer to cry the sale if it be done in his presence." (Rorer on Judicial Sales, page 44; Williamson v. Berry, 8 Howard, 495; Blossom v. Railroad Company, 3 Wallace, 196; Blakey v. Abert, 1 Dana, 185.) The judgment directing the sale is reversed, with directions to set aside the order confirming the commissioner's report of sale. The administrator should be allowed to amend his pleadings. The appeal from the judgment dismissing the petition in equity is dismissed, and the appellants will pay one fourth the costs in this court, the cases having been consolidated. The cause is remanded for further proceedings consistent with this opinion. 12bu428 108 418 CASE 48-PETITION EQUITY-DEC. 2. Brown, &c. v. McGee, &c. APPEAL FROM FAYETTE CIRCUIT COURT. 1. "THE ISSUE OF CUSTOMARY MARRIAGES OF NEGROES shall be held legitimate." The foregoing proviso of section 2 of "An act in relation to the marriage of negroes and mulattoes," approved February 14, 1866, is constitutional. Said act was intended to regulate and legalize the marriage relation that at that time existed between persons of the entire colored race within the state, and to make legitimate the offspring of customary marriages between such persons entered into prior to that time. 2. CUSTOMARY MARRIAGES AMONG NEGROES were such as originated from cohabitation and the recognition of each other as man and wife. Brown, &c. v. McGee, &c. 3. The issue of customary marriages between negroes shall be held legitimate, although the parents were not both living, or were not living together as man and wife at the time of the passage of the act of February 14, 1866; or, if then living together, although they failed to legalize their marriage in the mode prescribed in said act. 4. When one of the parties to such customary marriages died before the passage of the act of February 14, 1866, the issue of such marriage shall be held legitimate and the lawful heirs of the survivor. Jeff. McGee married Becky prior to 1833 in accordance with the custom among slaves. Becky died in 1838. Jeff. married a second wife and died intestate in 1872, leaving considerable estate, leaving one child the issue of the first, and six children the issue of the second marriage surviving him. The child of the first marriage is held to be legitimate and entitled to one seventh part of the estate of her father. JUDGE PRYOR DELIVERED THE OPINION OF THE COURT. Jeff. McGee, a free man of color, died in the city of Lexington in the year 1872, leaving surviving him his widow, Huldah, and six children, and also the appellant Mary Brown, who claims to be a child of Jeff. by his first wife. He died intestate and the owner of real estate valued at about $2,000. In January, 1873, Mary, who had intermarried with Brown, instituted the present action in the Fayette Circuit Court to recover an undivided interest of one seventh in her father's Brown, &c. v. McGee, &c. real estate, alleging a marriage between her mother and Jeff. in accordance with the custom among slaves at that date. Becky, the mother of Mary, was a slave at the time of her marriage, and owned by a man named Hall. The marriage took place prior to the year 1833, and Becky, the mother, died in the year 1838. After the death of her mother Jeff. purchased Mary for the sum of $400, always recognizing her as his child, and discharging the natural duty of a parent in providing her a comfortable home and looking to her welfare as long as he lived. The fact of the marriage between Jeff. and Becky is controverted by the second wife and her children, and an attempt made to show that Becky was only the woman or mistress of Jeff., and never regarded by him as his wife. There is some conflict in the proof on this point, but the decided weight of the testimony is to the effect that they were married by Dr. Cloud, a minister (white) of the Methodist Church, and when looking to the degree of affection exhibited by Jeff. toward Mary in the discharge of what he conceived to be the natural obligation resting upon him to maintain and care for her, there can be no doubt on this branch of the controversy. It is certain that the appellant was recognized, accepted, and raised by Jeff. McGee as his child, and that he and Becky lived together as man and wife. It is maintained by counsel for the appellees that the second section of the act of February 14, 1866, only applies to such negroes as were at the passage of that act living in the relation of quasi-marriage, and that the proviso legitimatizing certain children only applied to the children of those persons; that the mother of Mary having died long prior to the passage of the act of February, 1866, it has no application whatever to the rights of her offspring. The second section of the act reads: "All negroes and mulattoes who have heretofore lived and cohabited, and do now |