Wiley v. Harlow. sonally present at this marriage ceremony, and that it was performed by the preacher Enoch Jackson. Numerous witnesses testify that from and after Smith's marriage to Harriet, in 1853, these two continuously lived together as man and wife, according to the custom of slaves, until they were emancipated during the war, and that thereafter they continued to live together until Smith's death in 1904. From this relation between Smith and the woman Harriet, there were born nine children, two of whom died in infancy, and the others of whom, except two who died leaving heirs, and with whom we are not concerned here, were the mesne grantors of the defendant herein. Upon a trial of the case below, without a jury, the court found, as stated, that plaintiffs were each entitled to an undivided one-ninth of the land in dispute, and that defendant was entitled to an undivided seven-ninths thereof. Such further facts, as we may find it necessary to state, in order to make clear the view which we take of this case, will be found in our opinion. Law I. This is a law case tried by the court sitting as a jury, without any declarations of law asked, given, or refused, upon either side. In such case it is settled law that the judgment of the trial court must be upheld upon appeal, if there is any substantial evidence to support it. [In re Lankford Estate, 272 Mo. 1; Woods v. Johnson, 264 Mo. 1. c. 293; Hatton v. St. Louis, 264 Mo. 634.] The case is one which turns wholly upon the facts, for the law is settled by an express statute. This statute was passed in 1865, has been on the books ever since and reads as follows: "For the purposes of this article, the children of all parents who were slaves, and were living together in good faith as man and wife at the time of the birth of such children, shall be deemed and taken to be the legitimate children of such parents, and all the children of any one mother, who Marriages of Slaves. Wiley v. Harlow. was a slave at the time of their birth, shall be deemed lawful brothers and sisters, for the purposes of this article." [Sec. 344, R. S. 1909.] The learned trial court found that plaintiffs are the children of the former slave William Smith, who is the agreed common source of title to the land in dispute. Measured by the above rule of verity, attaching to the finding of the court nisi in a law case, there is ample evidence to support so much of his finding. The vexing question is, were plaintiffs born while William Smith and Adeline South were "living together in good faith as man and wife?" If they were so living together, the plaintiffs are legitimized by the statute quoted, and the judgment below is correct. For the statute, supra, seems to be fairly plain. It requires that the offspring of former slaves, born while their parents were held in slavery, must be born while the cohabitation as man and wife existed. It connotes either a ceremonial marriage, or a common-law marriage, or to be exact (since slaves were incapable of entering into a contract of marriage or of any sort) the similitude in form of one or the other. It must also be construed in such wise as to subserve its beneficent intention of remedying an unfortunate situation, so far as is consonant with good morals and dignity, and therefore so as to exclude the legitimation of offspring begotten by mere casual cohabitation. So construed, it will no more permit a slave to have two wives, or two husbands, at one and the same time, than it would allow such a privilege to the free man or woman. This view follows from the express statutory requirement that the cohabitation must be in "good faith." Since, however, the slave was incapable of making a contract (Lee v. Lee, 161 Mo. 52), no penalties were visited either upon the slave himself, or upon his offspring, if having gone through the form of either a ceremonial or a common-law marriage, and begotten and had born issue thereof, he should, during the life of the first quasi-spouse, abandon her and "marry" another woman. Wiley v. Harlow. Good Faith. If he lived at different times in good faith with each such spouse, and while so living children were born, such children would be legitimized by our statute. Upon these considerations how stands this case? There was evidence sufficient to put in force the rule stated that the slave William Smith went through a form of ceremonial marriage with Adeline South, the mother of these plaintiffs, about the year 1850. Thereafter the negro Smith lived with plaintiffs' mother till 1853, at which time the master of the woman removed with her, the plaintiff Eliza, and his other slaves, to a point in Lincoln County, some thirty miles away from the master's former home. While cohabiting in Pike County with the woman Adeline, following the ceremonial marriage, and before the woman was taken away to Lincoln County, by her master, the plaintiff Eliza was born. In 1855, and two years at least (there is some considerable evidence that it was seven or eight years) after Adeline left Pike County, the plaintiff Albro was born. The evidence is conclusive that either in January or June, 1853, William Smith went through a form of ceremonial marriage with a slave woman by the name of Harriet Wheeler, who belonged to one Hedges, and who is sometimes called Harriet Hedges. Likewise it is proved conclusively that Smith lived with this woman Harriet in good faith as her husband continuously till his death in 1904, and that there were born of Smith's cohabitation with the woman Harriet nine children. There is some testimony to the effect that Smith continued for some years after 1853 to sustain toward the woman Adeline a casual illicit sexual relation, and there is evidence from which the court might well have found, as it is patent he did find, that the plaintiff Albro, ast well as the plaintiff Eliza, is the child of Smith. But we do not think there is any substantial proof that Smith, after 1853, ever lived in good faith as man and wife with the woman Adeline. Such a view is in diametri274 Sup.-12 Wiley v. Harlow. cal opposition to, and inconsistent with both the law and the facts, as the proof shows them and as the learned court nisi was compelled to find these facts, in order to render the judgment which he entered in this case. For plaintiffs sued for the whole fee upon the theory and allegation that they are the sole and only legal heirs of William Smith. The trial court held that they are entitled to but an undivided one-ninth interest in the land; evidently upon the theory that the whole of the living issue of both marriages are legitimized by our statute. This, in our opinion, cannot be true under the facts and the statute. Either Smith was, when plaintiff Albro was born, living in good faith as man and wife with the mother of Albro, or he was living in good faith with Harriet Wheeler, whom he had married two years before Albro's birth. A cloud of witnesses, both white and black, testify to the truth of the latter fact, and the family record shows it conclusively; nor is it in fact denied by any witness for the plaintiffs. There is, as stated, some evidence of subsequent sexual relations between Smith and the woman Adeline, but in some of the testimony as to these subsequent relations the sinister fact crops out that they were attended by circumstances evidencing their clandestine character. These relations in other words were not attended by the element of good faith which the curative statute quoted above makes a condition precedent to the legitimation of the offspring of ex-slaves. [Livingston v. Williams, 75 Tex. 653.] The facts of the prior ceremonial marriage between Smith and the woman Harriet, and of cohabitation between the latter quasi-spouses continuously till Smith's death, negative conclusively the existence of this necessary element of good faith in the relations of Smith and Adeline, after the 15th day of June, 1853. If before that date Smith had been living with the woman Adeline in good faith, the evidence shows that when her master took her to Lincoln County "he put her away," and married another woman. The first "marriage" was no bar to the second (Johnson Wiley v. Harlow. v. Johnson, 45 Mo. 595), and as hinted above, the fact that Adeline was alive when the second form of marriage took place, did not under our statute render the latter so far void as to make the offspring thereof illegitimate. If children born of the relations between Smith and Adeline subsequent to 1853, were legitimate, then the children born of the "marriage" with the woman Harriet are not legitimate. Choice must be made as between the two horns of the dilemma presented. So choosing, we do not think there was any substantial proof of cohabitation in good faith as man and wife between Smith and Adeline, after June 15, 1853. Inasmuch as plaintiff Albro was not born till 1855, the curative statute does not apply to him. There is substantial proof, however, that the plaintiff Eliza was born while Smith and the woman Adeline were living together in good faith as man and wife. While no one except the old negro Collins South testifies as to this, he is explicit. And while his story is in many respects incredible, its weight was for the trial court and not for us. The trial court found in favor of the legitimacy of plaintiff Eliza, and we have no power to disturb that finding, under the rule of verity which we have perforce attached to the finding of the trial court in a law case, when he sits as the trier of facts. It results that the case must be reversed and remanded for a new trial in such wise as is consistent Iwith what we have written herein. Let this be done. All concur. |