Davenport v. Caldwell
| Decision Date | 27 November 1878 |
| Parties | DAVENPORT v. CALDWELL. |
| Court | South Carolina Supreme Court |
Where two slaves, persons of color, went through the form of marriage, lived together as husband and wife for a number of years, and died leaving issue before the general emancipation took place: Held , That, under the statutes passed under and since the Constitution of 1868 was adopted, said persons were to be considered in law as husband and wife-their children legitimate, and capable of inheriting from each other under the Statute of Distributions.
Where an inferior Court is without jurisdiction its proceedings are null and void, and may be so treated whenever they come before another Court for consideration.
The Court of Probate has no jurisdiction in cases for the partition of real estate.
BEFORE NORTHROP, J., AT ABBEVILLE, SEPTEMBER TERM, 1877.
This was a petition by Elihu Davenport and Katie, his wife against Elizabeth Caldwell, for partition of real estate and account, originally brought in the Court of Probate for Abbeville County, and appealed to the Circuit Court of the same County.
The facts appear in the following statement prepared by counsel:
Many years ago a colored man named Joe, a slave of John Caldwell of Newberry County, and a colored woman named Nancy, a slave of Edward Pitts, of Newberry County, lived together as man and wife, or were married according to the custom usual among persons in their station of life. They both remained in slavery until their deaths, which occurred, respectively more than thirty years ago, and from their connection were born Willis Caldwell and Katie Davenport, who were both slaves until the general emancipation. Katie married Elihu Davenport, and they have both resided in Abbeville County for some years. On the 25th of February, 1875, Willis Caldwell also a resident of Abbeville County, died intestate, leaving a small tract of one hundred acres of land and some personal property. He left surviving him his widow, Elizabeth Caldwell, whom he had married when they were both slaves and continued to live with as his wife until his death, and who took out letters of administration upon his personal estate on the 22d June, 1875; but he left no children or lineal descendants.
On the 17th of November, 1875, Elihu Davenport and Katie, his wife, brought suit against Elizabeth Caldwell, claiming that Katie is an heir-at-law and distributee of Willis Caldwell, deceased, and, as his sister, entitled to one-half of his estate, and praying that a partition might be had of his real estate, and that the defendant, as administratrix, might be compelled to account for his personal estate.
The answer denies that Katie Davenport is an heir-at-law or distributee of Willis Caldwell, and denies the right of the plaintiffs, or either of them, to demand of the defendant the account and partition prayed for.
The Judge of Probate made a decree in favor of the petitioner for partition of the real estate and an account of the personalty.
The defendant appealed to the Circuit Court upon the following grounds:
1. Because Willis Caldwell, the intestate, and Katie Davenport, the petitioner, having been born slaves, and having remained slaves until the general emancipation of slaves, the latter possesses no rights, absolute or relative, that have not been conferred upon her by law since emancipation.
2. Because the said Willis Caldwell and Katie Davenport having been born of a woman who lived in the state of concubinage at the time of their births, respectively, the said Katie Davenport is the illegitimate child of her mother, and is incapable of inheriting or of taking, under the Statute of Distributions, the property of the said intestate, Willis Caldwell.
3. Because Joe, the putative father of Willis Caldwell and Katie Davenport, having lived and died in slavery, never possessed the right or capacity so to recognize or acknowledge as his children the said Willis and Katie as to confer legitimacy upon them or upon either of them.
4. Because there is no proof that Joe, the putative father, ever, at any time during the lifetime of Nancy or afterwards, acknowledged or recognized the said Willis and Katie, or either of them, as his children.
5. Because the petitioner, Katie Davenport, is not a distributee of the intestate, Willis Caldwell, and the petition should have been dismissed.
6. Because the decree does not define or fix the share of the intestate's estate to which the petitioner is entitled and is void for uncertainty.
His Honor the Circuit Judge decreed as follows:
It is ordered and adjudged that the appeal be dismissed, and that the Clerk of this Court certify this judgment to the Probate Court for such further proceedings as may be deemed proper by the Judge thereof.
The defendant appealed on the following grounds:
1. Because Willis Caldwell, the intestate, and Katie Davenport, the petitioner, having been born slaves, and having remained slaves until the general emancipation of slaves, the latter possesses no rights, absolute or relative, that have not been conferred upon her by law since emancipation.
2. Because the said Willis Caldwell and Katie Davenport having been born of a woman who lived in the state of concubinage at the time of their births, respectively, the said Katie Davenport is the illegitimate child of her mother, and is incapable of inheriting or of taking, under the Statute of Distributions, the property of the said intestate, Willis Caldwell.
3. Because Joe, the putative father of Willis Caldwell and Katie Davenport, having lived and died in slavery, never possessed the right or capacity so to recognize or acknowledge as his children the said Willis and Katie as to confer legitimacy upon them or upon either of them.
4. Because there is no proof that Joe, the putative father, ever, at any time during the lifetime of Nancy or afterwards, acknowledged or recognized the said Willis and Katie, or either of them, as his children.
5. Because the Court of Probate cannot exercise jurisdiction of petitions for partition of real estate where any dispute exists in relation to the title thereof.
6. Because the Act of the Legislature conferring jurisdiction upon the Courts of Probate in cases of partition of real estate is unauthorized by the Constitution of South Carolina, and is, therefore, null and void.
7. Because the Act of 1872 " legalizing certain marriages," & c., is in conflict with Section 39 of Article I of the Constitution of South Carolina, and is, therefore, null and void.
8. Because the petitioner, Katie Davenport, is not a distributee of the intestate, Willis Caldwell, and the petition should have been dismissed.
9. Because the decree does not define or fix the share of the intestate's estate to which the petitioner is entitled and is void for uncertainty.
Burt , for appellant, filed a brief, containing the following points of law and authorities:
1. That, as slaves, Joe and Nancy were not husband and wife, and their relation was not marriage but concubinage.
2. That the respondent, Katie Davenport, and the intestate, Willis Caldwell, were the natural children, if their children at all, of Joe and Nancy.
3. That, as emancipated slaves, the respondent and the intestate had no civil rights that were not conferred on them by emancipation or by statute.
4. That, as natural children, they had no capacity to inherit or take property or to transmit it from one to the other.
5. That the respondent, claiming an exemption from the disability of bastardy, must show that her disability has been removed.
6. That legitimacy can be conferred only by statute.
7. That the right of a putative father to recognize is a power, and there must be a grantee of the power and an act of recognition under it.
8. That the statute of 1872 relates to individuals only or a class of persons and is a private Act.
9. That it violates the Constitution of South Carolina, in that it is a discrimination in favor of colored persons.
10. That the Act conferring on the Probate Court jurisdiction in partition is unconstitutional.
11. That, if not unconstitutional, in this case the title to the land is in dispute, and the Probate Court has not jurisdiction.
Slaves in South Carolina had no civil rights-were incapable of making any contract-were mere personal chattels.-Act of 1740, Stat. at Large; Lenior vs. Sylvester , 1 Bail. 642; Gregg vs. Thomson , 2 Mill 231; Gist vs. Toohay , 2 Rich. 425. Consent of parties capable to contract, and not ceremony, necessary to valid marriage. Consent may be declared or presumed from reputation and cohabitation.-2 Kent Comm., 85, 87.
A slave cannot legally contract marriage. The union of slave and slave or slave and free negro is concubinage merely.-O'Neall's Negro Law, § 37, p. 23.
A bastard is a child born out of lawful wedlock and cannot inherit or transmit property.-1 Chit. Black., 379.
A bastard cannot claim under a devise to children generally, though the implication be strong in his favor.-5 Ves. 530; 1 Ves. & Bea., 434.
In contemplation of law, children mean legitimate children.-7 Ves. 458; 1 Bouv. L. D., 244.
Katie Davenport, then, being a bastard and an emancipated slave, cannot inherit property or take under the Statute of Distributions unless the capacity to do so has been conferred by the Constitution or by statute. A bastard can be made legitimate only by Act of Parliament.-1 Chit. Black., 379.
The Constitution of 1865 merely forbids the existence of slavery-does no more.
Emancipation conferred only such civil rights as are not denied to colored persons. Legitimation of bastards did not ensue from emancipation.
The statute of 1865, Section 4, p. 31, is: " Every colored child heretofore born is declared...
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