Woodard v. Blue

• Decision Date: 22 April 1889
• Citation: 9 S.E. 492,103 N.C. 109
• Parties: WOODARD et al. v. BLUE et al.
• Court: North Carolina Supreme Court

9 S.E. 492

103 N.C. 109

WOODARD et al. v. BLUE et al.

Supreme Court of North Carolina

April 22, 1889

Appeal from superior court, Burke county; ARMFIELD, Judge.

Action by Durant Woodard and Emily, his wife, and Mourning Criss against David Blue and others. Defendants appeal.

On an issue whether plaintiff was a daughter of a deceased slave evidence of declarations of the mother, that decedent was not the father of the child, should be admitted at least to impeach the credit of the mother; she having been previously questioned in relation to such declarations.

S. J Ervin and I. T. Avery, for appellees.

J. T Perkins, for appellants.

SMITH C.J.

The plaintiff Emily, wife of the plaintiff Durant Woodard, claiming to be the daughter and sole heir at law of Underzine Pelot, and the other plaintiff, Mourning Criss, claiming to be his surviving widow, sue the defendants, who are in possession of the several tracts of land mentioned and described in the complaint, to establish their title to and to recover the same, with damages for the withholding. The defendants admit that the intestate owned said lands at the time of his death, and their holding under Tom Walton and certain others named, to whom, as his rightful heirs, the same descended,--of all the said tracts except that described as No. 2, as to which certain equities are set up in behalf of said Tom Walton, growing out of his furnishing a part of the purchase money therefor, and the intestate's agreement, as alleged, to have the title conveyed to them jointly. Thereupon issues were made up and submitted to the jury, which, with their respective responses, are as follows: "(1) Is the plaintiff Mourning Criss the widow of Underzine Pelot, and entitled to dower in the lands in controversy? Answer. No. (2) Is the plaintiff Emily Woodard, wife of Durant Woodard, the only heir at law of the said Underzine Pelot? A. Yes. (3) Is the said Mourning Criss, as widow of Underzine Pelot, and Emily Woodard, as his only heir at law, entitled to the possession of the lands described in the complaint? A. Not Mourning Criss, but Emily Woodard, is."

The said Mourning Criss, examined at the trial on behalf of the plaintiffs, testified to her marriage with the deceased before a justice of the peace about 10 years before the war, he then being a slave, and herself the offspring of a white mother; their cohabitation as such for a period during which three children were born, of whom one was the plaintiff Emily; and its discontinuance since the termination of the war, though the said Underzine lived until a year or two before the institution of the present suit, when he died. During the cross-examination the de fendants put this question to the witness: "Have you not repeatedly told Tom Walton, a slave brother of Underzine, and belonging with him to the same owner, and living in the same family at the time when Emily was born, that Emily was not Underzine's child?" On objection of plaintiffs, the inquiry was disallowed, except to impeach the witness, and defendants excepted.

The defendants insisted that the marriage being between a white woman and a slave was void in law, and such intermarriage between a free person of color and a slave is expressly forbidden by statute, (Rev. St. c. 111, § 77;) nor is it protected by the amendatory act of January 9, 1845, (Acts 1844-45, c. 85,) which allows such intermarriage, when entered into with the owner's consent, previous to the passage of the act. The court expressing an opinion that the act of 1879 covered the present case, and has the effect of rendering all children born in slavery, where the parties were living as man and wife, capable of inheriting, but reserving a decision upon the point, the defendants proceeded to call their witnesses and develop their testimony. Tom Walton, being sworn, testified as follows: "Underzine and Mourning were regarded as man and wife when they went to Tennessee to the farm whereon witness worked with them, and where they remained four or five years, during which time Emily was born. Mourning stayed sometimes at the house where Underzine stayed, and sometimes at the 'big house;' he being a field-hand, and she a house-servant. They did not live as man and wife while there," Defendants offered to prove a general reputation in the family that the feme plaintiff was not Underzine's child, but that another person was her father. The evidence was held to be incompetent, if the parties were then cohabiting, and to this ruling the defendants excepted. Defendants then proposed to show that both Underzine and Mourning each had repeatedly declared that the former was not the father of said Emily, and that, though living in the same family, there had been no actual sexual connection of which she could be the fruit, and her actual father was the man with whom they lived, and who had been the owner of Underzine while a slave; that the parties left Tennessee after the close of the war, and settled in Burke county, living about 8 miles apart, where they remained until his death, --he meanwhile having no connection whatever with Mourning and her daughter, and, from his emancipation, at all times, repudiating and disowning any relation to either. The court, ruling the offered evidence irrelevant and incompetent, stated that the jury would be directed to find upon the issues in response to the first, "No;" to the second, "Yes;" to the third, "No, as to Mourning;" "Yes, as to Emily and Durant, if the parties were married, and were living together and cohabiting as man and wife when the plaintiff Emily was begotten and born." In deference to this intimation defendant's counsel said they could not resist a verdict, and it was rendered accordingly, and from the judgment they appealed.

At the time when the alleged marriage was contracted, Underzine was a negro slave, and Mourning the daughter of a white woman and, if not herself white, necessarily of mixed blood, and, whether one or the other, equally disabled by positive law to enter into a contract of marriage with a slave. By an act passed in 1741, it is declared that if any white man or woman, being free, shall intermarry with an Indian, negro, mustee, or mulatto man or woman, or any person of mixed blood to the third generation, bond or free, such person shall forfeit and pay to the use of the county $100, and a penalty is imposed upon any minister or justice of the peace who knowingly shall presume to marry such. Rev. St. c. 71, §§ 5, 6. The act of 1838 declares all marriages entered into since January 8, 1839, or thereafter...