Bettis v. Avery
| Decision Date | 05 December 1905 |
| Citation | 52 S.E. 584,140 N.C. 184 |
| Parties | BETTIS v. AVERY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; W. R. Allen, Judge.
Action by Clara Bettis against Wash Avery and others. From a judgment for plaintiff, defendants appeal. Reversed.
The plaintiff brought this action to recover the tract of land containing 21 1/2 acres described in the pleadings, and it was heard upon the following case agreed: (1) Matilda Greenlee, who died before 1861, was the mother of Adam Bettis and Clarissa Greenlee. (2) Clarissa Greenlee was the mother of Austin Greenlee. (3) Adam Bettis was the father of the plaintiff, Clara Bettis. (4) Matilda Greenlee, Adam Bettis Clarissa Greenlee, and Austin Greenlee were slaves. (5) Clarissa Greenlee died about 20 years ago, Austin died afterwards, about 17 years ago, and Adam Bettis died a year or two before Austin. (6) Adam Bettis and his wife were married during slavery and lived together as man and wife before emancipation and afterwards, until the date of the death of one of them, which was some time after the year 1866; their child (the plaintiff, Clara) having been born prior to the 1st day of January, 1868. (7) Austin Greenlee was the owner of the land in dispute, having acquired title by deed dated March 25, 1878. He died seised and possessed of the land in fee simple. (8) Austin Greenlee married Laura Greenlee, who died after the death of her husband, leaving a daughter by another marriage, named Malinda, who married Wash Avery. They are the defendants in this case. (9) Austin Greenlee died intestate in Burke county, without ever having had any chidren. (10) Laura, the widow of Austin Greenlee lived on the land in dispute after the death of the said Austin and until within a year prior to the beginning of this action, which was commenced July 31, 1903. The court was of opinion that upon the said facts the plaintiff is the owner of the land, and rendered judgment in her favor, from which the defendant appealed.
S. J Ervin, for appellants.
F. H Busbee & Son, for appellee.
WALKER J. (after stating the case).
The plaintiff's right to recover in this action depends upon the true meaning of our statute of descents in regard to former slaves and illegitimates, and their rights of property and inheritance growing out of their peculiar status. It seems to us that by a reasonable construction of our statute, whether it is based upon the letter or the evident intention of the Legislature, the plaintiff's claim to the land in dispute must fail. She would not have the shadow of a title if the case were decided according to the principles of the common law. But our statute has superseded those principles, and her right, if any she has, must rest solely on some provision of the statute. The Legislature took early action after the war to fix the marital relations of former slaves who were living together as man and wife by passing Acts 1866, p. 100, c. 40, § 5, and providing that those who thus cohabited at the date of the ratification of the act should be deemed to have been lawfully married as man and wife, with the provision for acknowledgment before the clerk or a justice of the peace and for making a record of the fact. This act was construed and held to be valid in Long v. Barnes, 87 N.C. 329, State v. Adams, 65 N.C. 537, and State v. Whitford, 86 N.C. 636. The act was upheld as constitutional, the necessary consent thereto being supplied by continuing cohabitation, and the provision as to acknowledgment was considered to be directory, so that a failure to comply with it, though a misdemeanor, did not affect the validity of the marriage. This statute is not material in this case, except in so far as it establishes the legitimacy of the plaintiff. There are no facts stated which would cause it to change the status of Adam Bettis and Clarissa Greenlee as illegitimates, for their mother, Matilda Greenlee, died in 1861 a slave, nor are there any to show the legitimacy of Austin Greenlee, who was born in slavery of a slave mother, Clarissa Greenlee. The act of 1866 (Code,§ 1842) was followed by Acts 1879, p. 136, c. 73 (Code, § 1281, rule 13), which provided that "the children of colored parents born at any time before the first day of January, 1868, of persons living together as man and wife are hereby declared legitimate children of such parents or either one of them, with all the rights of heirs at law and next of kin, with respect to the estate or estates of any such parents, or either one of them." This act merely legitimates the plaintiff as the child of Adam Bettis and his slave wife, which perhaps was already done by the act of 1866; but it cannot be held to transmit any title to the land in dispute from Austin Greenlee to her, as it refers exclusively to the descent to such a child of the "estate or estates of its parents, or either one of them," and merely extended the child's right of inheritance to the estate of the father, which before that was restricted to the estate of the mother. In this case the plaintiff is not claiming the land as the heir of her father or of her mother, but as heir of an illegitimate first cousin. That provision of the law therefore does not apply. Tucker v. Bellamy, 98 N.C. 31, 4 S.E. 34; Jones v. Hoggard, 108 N.C. 178, 12 S.E. 906, 907. These two special statutes may, therefore, be laid out of the case, and the plaintiff, having no right at common law, is driven to claim under the statute of descents, applicable to illegitimates generally. It is true that she is a legitimate, but she is claiming collaterally from an illegitimate who is not her brother; they being the children, respectively, of an illegitimate brother and an illegitimate sister. Her case must then be brought within the provisions of either rule 9 or rule 10 of chapter 28 of the Code. The first of those rules is as follows: "When there shall be no legitimate issue, every illegitimate child of the mother and the descendant of any such child deceased, shall be considered an heir, and as such shall inherit her estate; but such child or descendant shall not be allowed to claim, as representing such mother, any part of the estate of her kindred, either lineal or collateral."
It is apparent that the rule just quoted refers only to a lineal descent from a mother to her illegitimate child and its descendants, and not to any collateral descent from her kindred to the child as her representative. These are the very words of the act, and the language is too clear and unmistakable for any reasonable doubt as to what is meant. Again, we say, bringing our case to the test of this rule the plaintiff is not claiming as the illegitimate child of her mother, because, first, she is a legitimate, and, second, she is claiming under a collateral kinsman of her mother. So that, in every possible view, she is excluded from any benefit under that rule. Flintham v. Holder, 16 N.C. 345; McBryde v. Patterson, 78 N.C. 415; Sawyer v. Sawyer, 28 N.C. 407. If the plaintiff traces her right to inherit from Austin Greenlee back through her illegitimate father (Adam Bettis) to her grandmother (Matilda Greenlee), and then down from her through her illegitimate daughter (Clarissa Greenlee) to Austin Greenlee, the son of Clarissa, she is equally unfortunate, as such an inheritance is positively forbidden by the last clause of rule 9, which excludes the right to inherit, as the representative of an illegitimate mother, any part of the estate of the latter's kindred, either lineal or collateral; and the right cannot, therefore, be traced beyond the mother, nor through the latter's lineal or collateral kindred. The law breaks the connection at the mother...
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