Cave v. Cave
| Decision Date | 03 April 1915 |
| Docket Number | 9086. |
| Parties | CAVE ET AL. v. CAVE ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Barnwell County; W. B Gruber, Special Judge.
Action by Henrietta Cave and others against Evan Cave and others. Judgment for defendants, and plaintiffs appeal. New trial ordered.
Jas. E Davis and Thos. M. Boulware, both of Barnwell, for appellants.
J. O Patterson, Jr., and Bates & Simms, all of Barnwell, for respondents.
The action is for partition of 400 or 500 acres of land lying at and near Kline station, Barnwell county. One Evan Cave, a negro and once a slave, died in 1901, seised of the land. He had aforetime cohabited at different periods with two women; one Cassie before and after the war of the 60's; and one Eliza after that war and after the death of Cassie. Both were his wives; no issue is made about that. By Cassie Evan had five children and by Eliza he had six children.
In 1902 the children by the first marriage and the wife of the second marriage procured the land to be partitioned amongst themselves, one-third to Eliza the wife, and two-thirds to the children of Evan and Cassie. The partition was had by action in the circuit court, but the children of Evan and Eliza were not parties thereto, and are confessedly not concluded by that record. Those children brought this action in 1912 or 1913, and made parties the second wife and all the children by both marriages. The pivotal issue for trial was this: Were Evan and Eliza husband and wife before the birth of their children, or any of them, so that such children became heirs of Evan at his death, and entitled to inherit a part of his estate? It is not denied that Evan and Eliza lived and labored uninterruptedly together at one place, that is, they occupied the same house and tilled the soil from the early 70's until the death of Evan, in 1901, and that the plaintiffs are their children, and that some time in the middle 90's, after the birth of the plaintiffs, a colored preacher named Robinson performed for them a marriage ceremony; and it is claimed by the plaintiffs that Evan and Eliza were husband and wife long before that, and some time in the middle 70's, and before the plaintiffs were ever born. The issue has been twice tried by a jury. In October, 1913, the jury found for the plaintiffs, but the presiding judge set the verdict aside, the record does not disclose upon what ground. In 1914 the jury found for the defendants, and from judgment thereon appeal is had here by the plaintiffs.
There are a multitude of exceptions. They cover 10 1/2 printed pages; while the two arguments for the plaintiffs, very commendably, cover together only 8 printed pages.
The exceptions are altogether too voluminous. One of the appellant's counsel, with great good sense, has argued the first 18 exceptions together, and has made only pointed reference to the twentieth and twenty-first exceptions. The other of appellant's counsel has expressly argued only the twenty-sixth exception. This procedure greatly simplifies a consideration of the case, and is much to be commended.
Without multiplicity of words, counsel on both sides have laid bare the real issues between them, and have cited the record and the authorities to sustain their contentions. We shall not take up the exceptions as they are written; for counsel have not done that. We shall consider the real questions which the briefs have made.
The arguments of the appellants make eight questions:
(1) Was it competent to admit in testimony for the defendants the declarations of Evan and Eliza about the character of their association, and also testimony tending to show the general repute of that association? (First to eighteenth exceptions, both inclusive.)
(2) Was it in conformity to law for the court to charge the jury that, if it "believed from the evidence that Evan and Eliza began living together in a state of concubinage, or that the original compact between them was illicit, then the law presumes that it continued of that character until it is changed by the lawful understanding and consent of the parties into the relation of marriage"? (Twenty-sixth exception.)
(3) Was it right to charge the jury that the ordinary rule of law is that the plaintiff must prove his case by a preponderance of the testimony, without at the same time instructing the jury that the defendants had the burden put upon them to prove a defense by a preponderance of the testimony? (Nineteenth exception.)
(4) Was it right to charge the jury that an agreement to keep the fact of marriage a secret would not invalidate the marriage, but the fact of secrecy may be evidence against the fact of marriage? (Twenty-fourth exception.)
(5) Was it right to refuse to charge the jury that the defendants were bound to establish the fact of illegitimacy beyond a reasonable doubt?
(6) Was the record of the suit for partition had in 1902 between Eliza and the children by Cassie prima facie true against the plaintiffs, so that the plaintiffs had cast upon them in this action the burden to overcome that record? (Twentieth exception.)
(7) Was it right to refuse to charge the jury that, if the testimony on the issue of legitimacy shall be evenly balanced, the verdict should be in favor of legitimacy? (Twenty-second exception.)
(8) Was it right to charge the jury that the burden was on the plaintiffs to prove the fact of legitimacy? (Twenty-first exception.)
On some of these there was no serious contention, so we shall not much regard them. The brunt of the argument was directed to the first, second, third, sixth, and eighth issues.
We think the court was clearly right to hear testimony to prove the declaration of Evan and Eliza about the marriage, and to hear testimony about the repute of the marriage. Allen v. Hall, 2 Nott & McC. 114, 10 Am. Dec. 578. The issue of marriage is not coterminous with that of illegitimacy. A person may be the illegitimate child of one of two married people, or he may be the illegitimate child of two unmarried people. Had it been conceded in this cause that Evan and Eliza were married at the outstart, and thereafter bore children, then it may be that public policy would close the mouth of either to make a declaration against the legitimacy of their reputed child. The cases cited by appellant's counsel sustain that view; they do not hold that, where legitimacy is dependent upon a questioned marriage, the fact of marriage may not be proved or disproved by the declaration of the parties. And upon like principle the fact of marriage, even though legitimacy depends upon it, may be proved by common repute.
The court was right on the second issue.
A condition proven to exist is presumed as a fact to so continue until another condition is proven to exist. Greenleaf on Ev. § 41. So here, if the proof lead the jury to believe that Evan and Eliza at the outstart began to live in concubinage, then the presumption of fact is that they so continued until a different mode of life is...
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