Keen v. Keen

• Decision Date: 23 November 1904
• Citation: 83 S.W. 526,184 Mo. 358
• Parties: KEEN v. KEEN.
• Court: Missouri Supreme Court

83 S.W. 526

184 Mo. 358

KEEN v. KEEN.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

MARRIAGE — COMMON LAW — EVIDENCE OF EXISTENCE — LEGITIMACY OF CHILDREN.

1. It having always been unlawful in Missouri for white persons and negroes to intermarry (Rev. St. 1845, c. 115, § 3; Rev. St. 1855, c. 108, § 3; Gen. St. 1865, c. 113, § 2; Rev. St. 1879, c. 50, § 3265; Rev. St. 1899, § 4312), a common-law marriage did not exist between a white man and a negro woman who cohabited together without any marriage ceremony from 1851 to 1883, and had children born to them.

2. The fact that a negro woman continued living with a white man without any marriage ceremony after her emancipation, in 1865, as she had done before, does not raise a presumption of a common-law marriage, in view of the fact that the parties separated in 1883, and that a marriage between such persons would be criminal. Rev. St. 1879, c. 24, § 1540; Rev. St. 1889, c. 47, art. 8, § 3797; Rev. St. 1879, c. 15, art. 8, § 2174.

3. Rev. St. 1899, § 2918, providing that "the issue of all marriages, declared null in law, or dissolved by divorce shall be legitimate," does not apply to children of a white person and a negro who lived together without any marriage, either ceremonial, statutory, or common-law.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action in ejectment by Sophronia K. Keen against Ellis Keen. From a judgment for plaintiff, defendant appeals. Affirmed.

D. P. Dyer and T. F. McDearmon, for appellant. Jno. F. McGinnis and C. W. Wilson, for respondent.

MARSHALL, J.

This is an action in ejectment to recover an undivided one-half of 71 67/100 acres of land, being a part of United States survey No. 1,765, in St. Charles County, Mo. The petition is in the usual form, and the ouster is laid as of March 2, 1901. The answer is a general denial. Eli Keen is the common source of title. The plaintiff claims one-half of the land, subject to the payment of debts, under section 2939, Rev. St. 1899, on the ground that she is the widow of Eli Keen, and that he died without any child or other descendants in being, capable of inheriting. The defendant claims to be the legitimate child of an alleged common-law marriage between Eli Keen, a white man, and Phœbe, a negro woman. There was a judgment below for the plaintiff, and the defendant appealed.

At the request of the parties the circuit court made a special finding of facts, together with conclusions of law, separately stated, which it is agreed is a fair statement of the facts, except that the defendant says that while the court found that Eli Keen and Phœbe lived together and cohabited without the sanction of marriage, and that the reputation was that they had never been married, it should have said they were never married "by ceremony"; but, as hereafter shown, the finding of the court covers both a ceremonial and a common-law marriage, and the addition of the words "by ceremony" would materially narrow the finding of the court, and would beg the very question involved in this case. For there is no pretense that there was any ceremonial marriage, and the only question is, was there a common-law marriage? The addition of the words "by ceremony" would therefore leave the question of common-law marriage an undecided question in the case, and it is plain that such a marriage was intended to be decided by the court, as well as a ceremonial marriage. This is an action at law, and by consent was tried by the court without the aid of a jury. There is abundant testimony to support the finding of facts by the court, and therefore that finding of fact is conclusive upon the parties in this court. No instructions were asked or given, and the only question here, therefore, is, did the facts found warrant the conclusions of law reached by the trial court?

The findings of fact are as follows:

"Eli Keen was a white man, and about 1847 or 1848, being then under 21 years of age, removed to St. Charles county, Mo., with his father, and settled in this country about that time. The woman Phœbe was a negro woman, and, with a child, Martha, was held and owned as a slave by the father of Eli Keen. On June 1, 1850 or 1851, at the administrator's sale of his father's personal estate and slaves, Eli Keen became the purchaser of the negro woman Phœbe and her child, Martha, and thereby became the owner of them, and held them as slaves. Some time after he became the owner of Phœbe, the negro woman, about 1850 or 1851, Eli Keen began cohabiting with her, and continued cohabiting with her down to about 1882 or 1883. As the fruits of their intercourse, eight children were born, who are now living; the defendant, Ellis Keen, being the first born, and now in the fifty-first year of his age. Of these children, six were born prior to the general emancipation of slaves in this state in 1865, and two were born after that date; the youngest being born January 2, 1868. Eli Keen owned his own farm and home place, in St. Charles county, Missouri; and from the time he began cohabiting with Phœbe, the negro woman, in 1850 or 1851, he lived in his own home, on his own farm, and Phœbe lived in the same house with him, and did the housekeeping. They occupied the same room and the same bed. They ate at the same table, and as the children were born they ate at the same table with Eli Keen and Phœbe; Eli Keen sitting at one end of the table, and Phœbe at the other. The children called Eli Keen `Pa,' and Phœbe `Ma,' and this was done in the presence of Eli Keen and Phœbe, without protest or objection from either of them. Eli Keen called the woman `Phœbe,' and she called him `Eli.' Eli Keen and Phœbe and the children born of their relations lived together as one family. They cared and provided for them (the children), and treated them like parents ordinarily treat their legitimate children. After the close of the War of Rebellion, a public district school for the education of negro children was organized under the laws of Missouri, and a public school building was erected for this purpose within a few hundred yards of Eli Keen's residence; the site for such building being given by Eli Keen on his home farm. Eli Keen and Phœbe sent their children to this school, and, for two terms after this school started, Eli Keen and other patrons at the expiration of the four-months term of the public school employed the teacher, and extended the term two months longer. Several of the older children — the defendant among them — were sent off to school in Iowa and Tennessee, Eli Keen paying all the expenses. Phœbe and the children were in the habit of dealing with the merchants in St. Charles, and bought goods, which were charged to Eli Keen, and Eli Keen paid the bills. A physician was called to visit the children when sick, which he charged to Eli Keen, and Eli Keen paid the bills. Eli Keen, at his own house, introduced Phœbe to several different persons as his wife. To several persons, after his marriage to the plaintiff, Sophronia K. Keen, Eli Keen spoke of Phœbe Keen as his wife. So far as the evidence showed, Eli Keen was never seen out with Phœbe, except when in his own house or yard. He was never seen off of the place with her. He was never known to visit friends with her. He was never known to introduce her to anybody as his wife outside of his own home, and he was never known to be with her and acknowledge her as his wife outside of his own house. While it was a known fact in the community in which they lived that Eli Keen and Phœbe were living together, and cohabiting and raising a family of children, as above detailed, it was the reputation in the community that they were so living together and cohabiting without the sanction of marriage. The reputation was that they had never been married. As the children grew up, the evidence shows that Eli Keen put the sons, Ellis, Reason, Matthew, and Mark, on tracts of land owned by him, and allowed them to occupy and use the same without charging them any rent; that he advised and consulted with them about the management of their affairs; that in his last will and testament, executed September 5, 1900, he devised his entire estate to these children born of the relations between him and Phœbe, except the provision therein made for his wife, Sophronia K. Keen, the plaintiff, and in his will he designates and mentions them as his `beloved children'; that in his will he devised the tract of land upon which the defendant now lives, and which is in controversy in this suit, to Ellis Keen, the defendant; that by his father's permission he had been living on this land since 1892, his father, Eli Keen, charging him no rent for the same; that the other sons, Reason, Matthew, and Mark, were, at and before Eli Keen's death, living on the farms that were respectively devised to them in the will, and they are still living on such farms. By deed dated November 22, 1883, and recorded December __, 1883, Eli Keen conveys his old home farm, in St. Charles county, Mo., the place where he and Phœbe lived for so many years, to Phœbe; he designating her as Phœbe Keen; she to have and to hold for and during her natural life; and providing therein that upon the death of Phœbe and of himself, Eli Keen, the title to said farm should vest in Lettie Ann Skinner, Phœbe Wise, Mary Phillips, and Alice Cora Brown, the daughters of said Phœbe Keen. In this deed Eli Keen expressly reserves to himself the use of one room in the house, which he designated in the deed as the room now occupied and used by him. In this deed Eli Keen does not describe or designate Phœbe as his wife, nor does he mention or designate these daughters of Phœbe as his children. About 1882 or 1883 — the exact date does not accurately appear from the testimony — the intercourse between Eli Keen and Phœbe Keen ceased. She remained in this home farm for several years, and then moved to St. Charles, Missouri, where she lived up to the date...