Brown v. Cheatham

• Citation: 17 S.W. 1033,91 Tenn. 97
• Parties: Brown v. Cheatham et al.
• Decision Date: 09 January 1892
• Court: Tennessee Supreme Court

17 S.W. 1033

91 Tenn. 97

Brown v. Cheatham et al.

Supreme Court of Tennessee.

January 9, 1892

Appeal from chancery court, Maury county; A. J. Abernathy Chancellor.

Bill of ejectment by Willie Brown, (colored,) by his next friend against A. Cheatham (colored) et al. Plaintiff had judgment and defendants appeal. Reversed.

Lurton J.

This is a bill of ejectment. Complainant claims as heir at law of Addison Denton, colored. Defendants claim that Addison died without heirs at law, and that, under section 3272, Mill. & V. Code, the property descended to his widow, Sylvester Denton, from whom they purchased and under whom they claim. The title depends upon the validity of the marriage of Rachel, the mother of complainant, to the intestate, Addison. Under the statute a jury was called, and issues of face submitted for their determination. The jury found that the marriage of Rachel to Denton was valid, and that complainant was the sole heir at law of said Denton, and a decree for the recovery of the property was pronounced. Rachel is shown to have been a slave, and to have so continued until her emancipation in 1865 by the amendments to the constitution of this state adopted in that year. It does not appear whether Addison was free or slave. There was evidence tending to show the celebration of a marriage ceremony, by a colored preacher, in 1864, between Rachel and Addison. This was followed by cohabitation, which continued for about a year, when Addison abandoned her, and in April, 1866, contracted another marriage, under license, with a woman known as Sylvester. Addison and Sylvester lived together as husband and wife until the death of the former in 1878. Defendants claim under conveyance from this woman, Sylvester. Either just before or just after the desertion of Rachel by Addison, complainant was born. There is evidence tending to show that Addison recognized him as his son. Prior to this short-lived connection with Addison, Rachel is shown to have contracted three other slave marriages. The validity of her marriage to Denton depended chiefly upon the sufficiency of the evidence tending to show the dissolution of these antecedent contracts. The court, after telling the jury that our statutes on the subject of marriages and divorces did not relate to or affect the slave population of the state instructed them as to the dissolution of marriages between slaves as follows: "But, as no law was in existence, either before or during the war, to require slaves to obtain licenses prior to marriage, or authorizing the issuance of such licenses, so there was no law authorizing a divorce of husband and wife who were slaves; and a permanent separation of the parties by a sale of the husband or wife by the master, or by any other act of the parties, either with or without the consent of the master, would amount to divorce as between such slaves. And any other marriage after such permanent separation, entered into by either husband or wife, would be a valid marriage as between the slaves, or under section 3304 of the Code." This presents the question as to whether a separation by a married slave couple without consent of the owner would be such a dissolution of a marriage as would make such separated parties competent to contract a subsequent marriage. It is true that our statutory marriage and divorce law has never been regarded as applying to the slaves held in this state. Yet it by no means followed that slaves could not enter into de facto marriages, to which many of the consequences of a statutory marriage attached. This subject was fully and ably considered by this court in the great case of Andrews v. Page, when the opinion was delivered by Judge Nelson. After reviewing the history of slavery in this state, and the status of the slave as a person in the light of the decisions of the courts of this state, he summed up the ante bellum law upon the subject of slave marriages in these words: "We hold that a marriage between slaves, with the assent of their owners, whether contracted in common-law form or celebrated under the statute, always was a valid marriage in this state, and that the issue of such marriages were not illegitimates." 3 Heisk. 668. It is true that this holding was not in accord with the views entertained by the courts of several of the southern states. In many of them it had been held that slave marriages were null and void. The ground upon which these cases stood was: (1) That a slave had no such freedom of will as would enable him to consent to a marriage; (2) that the duties of husband and wife were incompatible with the duties which the slave owed to his master. 1 Bish....