Boone v. Purnell

• Citation: 28 Md. 607
• Parties: WILLIAM BOONE and others' Lessee v. WILLIAM H. PURNELL.
• Decision Date: 08 May 1868
• Court: Maryland Court of Appeals

28 Md. 607

WILLIAM BOONE and others' Lessee v. WILLIAM H. PURNELL.

Court of Appeals of Maryland

May 8, 1868

APPEAL from the Circuit Court for Baltimore County.

This was an action of Ejectment, brought by the lessors of the plaintiff, (now appellants,) for five-sixths of one-third of a lot of ground in the village of Mount Washington, in Baltimore county. The appellants claim as descendants of John Cockey Burley Boone, who died in the year 1824, and who as they contend was twice married, and had by his first marriage (to Betsy Parlett,) two children, Stephen and Eleanor, of whom Eleanor died childless; and Stephen died leaving children and grand-children, who are the plaintiffs. The defendant claims that the said John Cockey Burley Boone was never married to Betsy Parlett, his children by her being illegitimate, and that he had but one legitimate child named Prudence, who left two children, John C. R. Chamberlaine and Elizabeth P. Chamberlaine, under whom, by divers mesne conveyances, the defendant derived his title. The legitimacy of said Stephen and Eleanor was the only question in the case. Six bills of exceptions were taken by the plaintiff below.

First Exception: The view taken of this exception by the Court, renders a statement of its nature unnecessary.

Second Exception: The defendant having read in evidence the deposition of Jemima Guineavan, the plaintiff objected to all that portion of said deposition as follows "She heard in the neighborhood that William Parlett whom she has seen, was a son of the mother of said Stephen and Eleanor, that it was the reputation of the neighborhood that the above J. R. C. B. Boone was the father of said Stephen and Eleanor Parlett;" and they further objected to the following portion of said deposition: "But it was also the belief and report of the neighborhood that said Boone, and the mother of said Stephen and Eleanor, whose name she has heard in the neighborhood was Betsy Parlett, were not married;" that it was not admissible evidence to go to the jury, which objection the Court (EMORY, J.) overruled and permitted the same to be read to the jury. To this ruling the plaintiff prayed leave to except.

Third Exception: The defendant having offered in evidence the deposition of Sarah Blufford, the plaintiff objected to the reading to the jury the following part of the deposition included in brackets: ["that said John C. R. Boone never was married until he married Betsy Hale," and also "Betsy Dew and John C. R. Boone never were married to her knowledge and belief; it was the general reputation of the neighborhood that they lived together illicitly,"] as incompetent evidence to go to the jury. This objection the Court overruled, and permitted the same to be read to the jury. To this ruling the plaintiff excepted.

Fourth Exception: The defendant having offered in evidence the deposition of Andrew Barrett, the plaintiff objected to all that portion of the deposition included in brackets, as follows: ["Cannot say whether or not Stephen's mother was dead, when he first heard the report above alluded to; deponent heard the report before her death that they were never married, always heard it was the report through the whole neighborhood where deponent lived, that they were never married,"] as not admissible evidence to go to the jury. This objection the Court overruled and permitted the said evidence to be read, leave being allowed the plaintiff to reserve an cxception thereto; after the testimony was closed on both sides, but before any prayers had been submitted, or the counsel of either party had gone before the jury, the counsel for the plaintiff presented a bill of exceptions embodying said exception; when the defendant's counsel immediately prayed the Court to exclude from the evidence before the jury the passage of said deposition so objected to, and not allow the jury to consider the same, and the Court thereupon permitted the defendant to withdraw the said testimony and gave the instruction to the jury that the same was not in evidence and should not be considered by them. To this allowance by the Court of the withdrawal of said testimony the plaintiff prayed leave to except.

Fifth Exception: Was abandoned.

Sixth Exception: The plaintiff offered the following prayers:

1. If the jury believe from the evidence that John C. R. B. Boone and the mother of Stephen P. Boone lived together and cohabited, and that said Stephen was an off-spring of such cohabitation, and that the said John C. R. B. Boone acknowledged said Stephen to be his son and called him by the family name of Boone, they must find that said Stephen was a legitimate son of said John C. R. B. Boone, unless they find satisfactory proof to the contrary.

2. If the jury believe from the evidence that John C. R. B. Boone cohabited with the mother of Stephen P. Boone, and that said Stephen was an off-spring of such cohabitation, and that the said John C. R. B. Boone acknowledged said Stephen as his son, and always treated him as such, and that the said Stephen lived with said John C. R. B. Boone, and was brought up by him as if he were his legitimate son, and that the said John C. R. B. Boone in his last will and testament expressly named said Stephen as his son, and gave him the family name of Boone, and provided for him by bestowing upon him a large portion of his property, they must find that these acts of the said John C. R. B. Boone amounted to a daily assertion that the said Stephen was his legitimate son, and they must presume that he was such, unless they find stronger proof to the contrary.

3. If the jury believe from the evidence that John C. R. B. Boone and the mother of Stephen P. Boone lived together and cohabited, and that said Stephen was an off-spring of such cohabitation, and that the said John C. R. B. Boone acknowledged said Stephen as his son, and in his last will and testament gave him the family name of Boone, and provided for him as his son, and that the said mother died before said John C. R. B. Boone, and that after the death of said mother the said John C. R. B. Boone declared that his wife, the mother of said Stephen, was dead, and pointed out the spot in the family burial ground of the Boone family where she was buried, and expressed a wish to be buried by her side, and was buried by her side in conformity with his wish as aforesaid, and that the said Stephen was also there buried by the side of his said parents, and that a long period has elapsed since the death of the said Stephen and his said parents, they must find that the said Stephen was a legitimate son of the said John C. R. B. Boone, unless they find strong, distinct, satisfactory and conclusive evidence to establish the fact that the said John C. R. B. Boone never was married to the mother of the said Stephen.

4. Repeats the prayer immediately preceding to the word "unless," and then proceeds as follows: unless there is evidence to show that there is no reasonable possibility of a marriage ever having taken place between the said John C. R. B. Boone, and the said mother either publicly or privately at any place, either in the State of Maryland or beyond the limits of the State of Maryland, at any period before the death of the said mother.

5. If the jury believe from the evidence that John C. R. B. Boone and the mother of Stephen P. Boone lived together and cohabited, until said cohabitation was terminated by the death of said mother, and that Stephen P. Boone and Eleanor R. Boone were the off-spring of such cohabitation, and that he called them his son and daughter and gave them the family name of Boone, and brought them up as his children and provided for them as such, and that there was a reputation that he was married to said mother as well as a reputation that he was not so married, and that after the death of the said mother, he said that his wife, the mother of Stephen, was dead, and pointed out the spot in the burial ground of the Boone family where the said mother was buried, and spoke of her to the children of Stephen and Eleanor as their grandmother, and expressed a wish to be buried by her side, and was there buried, and that said Stephen was also there buried, and that many years have elapsed since the death of said Stephen and his said parents, they must find that the said John and said mother were married, in the absence of conclusive proof to the contrary; and the statement of a witness that the said mother cohabited with one Charles Parlett previously to her said cohabitation with said Boone, and any evidence that said Parlett was living at the time of the cohabitation of said mother with said Boone, and any reputation that said mother and said Boone were never married, does not appear such conclusive proof.

6. If the jury believe from the evidence that John C. R. B. Boone cohabited with the mother of Stephen P. Boone, and that there was a reputation that he was married to said mother, and if they believe from the evidence that said Stephen was an off-spring of such cohabitation, and that said John recognized said Stephen as his son, and in his last will and testament called him his son, and gave him the family name of Boone, such cohabitation, recognition and reputation offered legally sufficient proof that said John was married to said mother, and reputation that the said parents of said Stephen were not married, and evidence that said mother had cohabited with one Charles Parlett antecedently to her said cohabitation with said John, and evidence that said Charles Parlett was living during her said cohabitation with said John, can have no legal effect to disprove her said marriage with said John, proved as aforesaid.

7. If the jury believe from the evidence that John C. R. B. Boone cohabited with the...