Livingston v. Williams

• Decision Date: 24 January 1890
• Citation: 13 S.W. 173
• Parties: LIVINGSTON <I>v.</I> WILLIAMS <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 173

LIVINGSTON

v. WILLIAMS et al.

Supreme Court of Texas.

January 24, 1890.

Appeal from district court, Washington county.

Eddino & Ewing, for appellant. Bassett, Muse & Muse, for appellees.

STAYTON, C. J.

This action was brought by appellant to recover land which belonged to Moses Livingston, who died before it was brought. The court below found that "Moses Livingston was a slave, and owned by one Philip G. Smith, for a long time prior to and up to his emancipation, June 19, 1865. After the manner of slaves, and with the consent of his master, he married one Fannie, also a slave belonging to said Smith, and they lived together as husband and wife, after the manner of slaves, upon the plantation of said Smith, continuously from about 1850 until they were emancipated, and thereafter, until the latter part of 1865, late in the fall." Appellees are the children of Moses and Fannie, born before emancipation. "For a long time prior to his emancipation, but beginning some time subsequent to his marriage with Fannie, Moses began to cohabit also with one Malinda, also a slave belonging to said Smith, and she bore him several children, the youngest of whom, George Livingston, the plaintiff, is the only one now living; * * * but this cohabitation was disapproved of by the master, and was clandestine. The relation, however, of husband and wife continued to exist between Moses and Fannie, and they occupied the same house, and lived together as man and wife, until late in the fall of 1865." The court further found that after the time last named Moses and Malinda cohabited as husband and wife until her death, which occurred in 1876, but that during that period he also cohabited with Fannie at intervals, until her death, which occurred in 1872. On this state of facts the court below found that the relation of husband and wife did not exist between Moses and Malinda, and that appellant did not inherit from Moses.

In this ruling there was no error. Section 27, art. 12, of constitution of 1869, legitimated the children of slaves who prior to emancipation lived together as husband and wife, and continued so to do until the death of one of them. That section of the constitution also validated the marriages of such persons as were living together as husband and wife at the time of its adoption, and legitimated the children of such persons, whether born before or after that time. The purpose of this provision evidently was to give effect to the moral obligation arising from the consent and act of those who while slaves entered into the only marital relation possible...