Gathings v. Williams

• Decision Date: 30 June 1845
• Citation: 27 N.C. 487,5 Ired. 487,44 Am.Dec. 49
• Court: North Carolina Supreme Court
• Parties: JAMES GATHINGS, ADM'R. v. ENOCH WILLIAMS.

5 Ired. 487

27 N.C. 487

44 Am.Dec. 49

JAMES GATHINGS, ADM'R.

v.ENOCH WILLIAMS.

Supreme Court of North Carolina.

June Term, 1845.

The record sent up to this court should not state the points of law arising on the trial, which were decided by the judge below against the party in whose favor is given the final judgment, from which the other party appeals.

Where a marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is a want of age or understanding, or a prior marriage still subsisting, the marriage is void absolutely and from the beginning, and, as between the parties themselves and those claiming under them, no rights whatever are acquired by such marriage.

And whether a marriage was void or not, may be inquired into by any court, in which rights are asserted under it, although the parties to the marriage be dead.

In the trial of an action for a slave, a party was permitted to prove by parol the contents of a bill of sale, under which he had claimed and held possession of the slave for more than thirty years, the bill of sale having been destroyed by the burning of the Register's office.

The uninterrupted possession of a slave for a long time, even before the act of 1820, Rev. St. 65, sec. 18, affords a strong presumption of a good title in the possessor, unless reasonably rebutted by a fiduciary relation, an acknowledged bailment, disability of the one alleged to be the real owner, or the like.

The cases of Irby v. Wilson, 1 Dev. & Bat. Eq. 568, and Brinegar v. Chaffin, 3 Dev. 108, cited and approved.

Appeal from the Superior Court of Law of Montgomery county, at the Spring Term, 1845, his Honor Judge PEARSON presiding.

This is an action of detinue for a slave, Dick, the issue of a female slave, named Olive; and the plaintiff claimed him under a sale by one Henry Williams, and the defendant claimed as the administrator of Joseph Herring, and as the administrator of Nancy Williams. Upon the trial the case appeared to be this. Joseph Herring owned the negro Olive, (the mother of the slave in controversy) and in 1796, made a deed of gift of her to his daughter, Nancy Herring, but reserving therein the use of the negro to himself for life; and in that year, Joseph Herring died, and Henry Williams and Nancy Herring intermarried. After the death of the said Joseph, his widow and children divided his property among them, and Williams and his wife took possession of Olive as her property, and from that time, (the latter part of the year 1796,) up to October, 1836, Henry Williams was in possession of the said Olive and her issue, claiming and treating them as his own. It, however, appeared, that in 1789, Henry Williams intermarried with Sarah Parker, who shortly afterwards eloped and never lived with him again, but she lived up to 1825. From the intermarriage of said Williams and Nancy Herring, they were reputed and lived together as man and wife, and had a large family of children, among whom was the present defendant. She died in 1818, intestate, and during her life never set up any title in herself to the negroes, nor claimed the possession, but acquiesced in the exclusive possession held by Williams and the title claimed by him. In the year 1836, the defendant obtained administration of the estate of his mother, and claimed the negroes and got them out of the possession of Henry Williams; and, while they were so out of his possession, Henry Williams made a contract of sale of the slave Dick to the plaintiff, and executed a bill of sale, and in a few days afterwards, the said Henry regained the possession of Dick, and delivered him to the plaintiff, and received the purchase money, $600. The defendant again got Dick into his possession, and after a demand and refusal, the plaintiff brought this action in February, 1837. The defendant subsequently took out administration also on the estate of Joseph Herring. For the purpose of shewing the conveyance from Herring to his daughter, the plaintiff produced a copy of the deed, which purported to be made by said Herring to his daughter and to be attested by two witnesses, and he shewed that Henry Williams had been in possession of the original from the year 1796 until after this suit was brought, and claimed the said negroes under it, and that it had been subsequently burnt in the Court House; and that the subscribing witnesses had been long dead. The defendant objected to the reading of the said copy, without proof of the execution of the original, but the court admitted it.

The counsel for the plaintiff moved the court to instruct the jury, that upon the evidence they might presume a valid conveyance from Joseph Herring or his administrator, to Henry Williams or to Nancy Williams, alias, Herring; and the court gave the instruction, that such conveyance to the said Nancy might be presumed.

And the counsel for the plaintiff also moved the court to instruct the jury, that, after the death of the said Nancy, the validity of the marriage, which was in fact celebrated between her and Henry Williams, could not be questioned by the defendant, but as her administrator he was concluded thereby; and, further, that the jury might presume upon the evidence, if necessary to the plaintiff's title, a conveyance from the said Nancy to the said Henry. And the court gave the instruction as prayed for in respect to the presumption of a conveyance; but, as that rendered the other part of the instruction unnecessary, the court declined giving the same, though his Honor deemed it correct in point of law.

There was a verdict for the plaintiff, and judgment being rendered accordingly, the defendant appealed.

Strange, with whom was Winston, for the plaintiff :

The first question presented in this case is, are the persons claiming under Mrs. Williams, alias Nancy Herring, at liberty to dispute the validity of her marriage with Williams.--On the part of the appellees it is contended they are estopped. Estoppels in pais are gaining favor with the courts, and they are increasing the list of them. 2 Smith's Leading cases, page 458. And they have for some time been more favorable to the doctrine of utility in estoppels, and more hostile to their technicality; Ib. 460, and also American Notes, 467. It must be confessed that the case of Irby v. Wilson, 1 Dev. & Bat. Eq. 568, on the first blush, makes against our position, for in that case it was held that the wife was not estopped to hold her property against those claiming as next of kin, or under the next of kin of the husband as mere volunteers, and to shew the invalidity of the marriage. That, however, is not so strong as the case of a purchase from the husband, and indeed, in that case, the estoppel was not relied on, but the fact of the invalidity of the marriage was first brought forward in the plaintiff's own bill, and the case is decided upon uncontested facts, and without any reference to authority, either by the court or counsel. In Mace v. Caddle, 1 Cond. Rep. 232, a woman who had lived with a man claiming to be his wife, was estopped upon his bankruptcy to claim the goods found in his possession as her own. In Morgan v. Bridges and others, 1 Barn. & Ald. 647, it is held by LORD ELLENBOROUGH, that where a party misrepresents his name, it estops him to deny its being his true name. In Glasspoole v. Young and others, 9 Barn. & Cresswell, 696, the doctrine set forth in Mace v. Caddell, is approved, although in the particular case, by reason of the woman herself having been deceived in relation to the marriage, it was thought inapplicable. The case of Blades v. Tree, 9 Barn. & Cresswell, 167, is no departure from, but rather an affirmance of that doctrine, for there it was held that the woman held out by a man as his wife, although not married to him, would have the same power to bind him as his wife, but, in that case, as the death of the husband revoked the authority of a wife to bind her husband's estate, so did it that of a mistress. In Edwards v. Farebrother, 2 Moore & Payne, 293, the court refers to the decision in Mace v. Caddell, with approbation, and forbears to decide in like manner upon the grounds, first, because, upon the finding of the jury, it became unnecessary; and secondly, out of respect to a Nisi Prius decision of LORD TENTERDEN, in Edwards v. Bridges, 2 Stark. Rep. 396, in which he did not seem to think the proposition clear. In Truck and wife v. Staines, 1 Bos. & Pul. 293, it is held, if an executrix treat the goods of her testator as her own, and afterwards marry, and then treat them as the goods of her husband, she shall not be allowed to object to their being taken in execution for her husband's debt. The case of Fenton v. Reid, 4 John. Rep. 52, is a strong case to shew, that even where there is direct proof of a former marriage and existence of a former wife at the time of the marriage, and where the parties then lived together for a long time, the court will go far to presume a re-marriage after the death of the first wife. And the case of Jackson v. Clacs, 18 John. Rep. is to the same purport. In this State, cohabitation, reputation, and acknowledgment of parties, are held proof of marriage; Morgan v. Purnell, 4 Hawks, 95. Weaver v. Cryer, 1 Dev. 337. It is well settled, that a man who lives with a woman holding her out as his wife, is estopped to deny it, when charged with liabilities as her husband. Stephens' N. P. 732. And why should not the converse of the proposition hold? And indeed it has been held to do so-- vide same authority. And in the case of Campbell v. Tremlowe, 1 Price, 81, it is strongly intimated, that so complete is the estoppel as to persons cohabiting as man and wife, that although it should be proven that they were never married, they would still be excluded from giving testimony in behalf of each other.

Secondly. Some of the cases cited under the last head, may seem to have gone upon the ground of presumption, which ought...