Branch v. Walker

• Decision Date: 25 February 1889
• Citation: 102 N.C. 34,8 S.E. 896
• Parties: Branch et al, v. Walker et al.
• Court: North Carolina Supreme Court

8 S.E. 896

(102 N.C. 34)

Branch et al,

v.Walker et al.

Supreme Court of North Carolina

February 25, 1889

1. Slavery—Legalizing Former Cohabitation.

In an action involving the title to land between the issue of two different slave women, cohabiting with O., a colored man, during slavery, the evidence showed that before and at the time of plaintiff's birth the plaintiff's mother cohabited with O.; that her owner removed to another part of the state, carrying her with him, and that O. visited her twice a year, up to within a year of her death, in February, 1866. On the other hand, there was evidence that the defendant S. cohabited with O.; that six children were born before and during the war; that O. and S. lived together on his master's plantation, and that he called her wife, and she him husband; that he built a house on his own land in 1866; that, as required by act N. C. March 10, 1866, legalizing the unions between slaves, they went before the clerk of court, and acknowledged the fact of such cohabitation, and the time of its commencement. On O. 's death, in 1869, the defendants claimed possession of the premises as his widow and children, and S. sued for and had her dower assigned. The court instructed the jury to find for plaintiffs, if the cohabitation of their parents was maintained up to the death of the mother; or, on the other hand, for defendants, if the cohabitation of O. and S. was kept up and maintained until his death; but that such relations could not, at the same time, subsist between a man and two women. Held, not a case of conflict of evidence, and it was error to submit the case to the jury with the qualification of the impracticability of keeping up marital relations with both women, and thus compelling them to find in favor of one against the other.

2. Same.

The purpose and effect of the curative act are to legalize and give validity to a single relation formed and maintained among the slave population, possessing the features and conditions of marriage, and to render offspring legitimate, but no relief was intended for polygamous relations.

Appeal from superior court, Bertie county; Gudger, Judge.

Ejectment by Branch and others against Walker and others. Verdict and judgment for plaintiffs. Defendants appeal.

R. B. Peebles, for plaintiffs. John E. Moore, for defendants.

Smith, C. J. Soon after the late civil war, which conferred freedom upon the large class of our population who had been slaves, without capacity to enter into legal and valid marital relations, it became necessary to provide by legislation, retroactive as well as prospective, for the results of emancipation in regard to this relation, and give it the sanction of law. To this end was passed the act of March 10, 1866, (Acts 1866, c. 40,) the fifth section of which, so far as material to the present inquiry, is in these words: "In all cases where men and women, both or one of whom were lately slaves, and are now emancipated, now cohabit together in the relation of husband and wife, the parties shall be deemed to have been lawfully married, as man and wife, at the time of the commencement of such cohabitation, although they may not have been married in due form of law; and all persons, whose cohabitation is hereby ratified into a state of marriage, shall go before the clerk of the court of pleas and quarter sessions of the county in which they reside, at his office, or before some justice of the peace, and acknowledge the fact of such cohabitation, and the time of its commencement; and the clerk shall enter the same in a book kept for that purpose; and if the acknowledgment be made before a justice of the peace, such justice shall report the same in writing to the clerk of the court of pleas and quarter sessions, and the clerk shall enter the same as though the acknowledgment had been made before him, and such entry shall be deemed prima facie evidence of the allegations therein contained. " The next section makes it a misdemeanor for the persons coming within its, provisions, and whose continued and past cohabitation may thus secure the sanction of law, to disregard its requirement, and fail to go before the clerk or justice to have the entries made up to the 1st day of September of the same year.

In the present case the mother of the plaintiffs, who sue for the land in dispute, died in February, 1866, and herself and alleged husband did not "now" (to use the word in the statute to designate the time when it went into operation) "cohabit together in the relation of husband and wife. " The parents of the defendants, who with their mother are defending the action, did go before the clerk, and comply with these requirements, in order to legalize the marital relations subsisting between them.

Another statute, looking to the same end, was passed on February 27, 1879, and found in Code, § 1281, being the last of the rules of descent of real estate, and provides that the children of colored parents, born at any time before the 1st day of January, 1868, of persons living together as man and wife, are hereby declared legitimate children of such parents, or either of them, with allthe 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.

The construction and efficacy of the validating enactment of 1866 have been before this court several times, and both interpreted and upheld.

In State v. Harris, 63 N. C. 1, Reade, J., speaking for the court, declares" "that, by force of the original consent of the parties while they were slaves, renewed after they became free, and by the performance of what was required by the statute, they became, to all intents and...