Jones v. Squire

• Decision Date: 29 June 1915
• Docket Number: 21169
• Citation: 69 So. 733,137 La. 883
• Court: Louisiana Supreme Court
• Parties: JONES et al. v. SQUIRE

69 So. 733

137 La. 883

JONES et al. v. SQUIRE

No. 21169

Supreme Court of Louisiana

June 29, 1915

Rehearing Denied October 18, 1915

John Fred Odom, of Baton Rouge (Bird & Bird, of Baton Rouge, of counsel), for appellants.

Charles A. Holcombe, of Baton Rouge, for appellee.

OPINION

PROVOSTY, J.

The parties to this suit are colored, and so are all the witnesses upon whose testimony depends the question of the good faith of the plaintiff's mother in marrying the defendant while her first husband was still living, upon which good faith the right of action of plaintiff, as heir of her mother, depends.

Shortly after the war, October 1, 1865, on the Perkins plantation about two miles from the city of Baton Rouge, plaintiff's mother and father, Ephey Wilson and Nelson Smith, two ex slaves, were married. The latter, now an old man living in Texas, whose testimony was taken by commission, says that he was charged with 'knocking up' the girl and forced to marry her. He soon abandoned her. How long after the marriage is variously testified to. We gather that it was when plaintiff was a baby just beginning to 'sit up.' He went to New Orleans, and enlisted in the federal army. He himself says that his wife accompanied him as far as New Orleans and knew of his enlistment, but as a matter of fact he departed mysteriously; simply disappeared. Joe Foster, 60 years old, minister of the gospel, who, for the five years immediately following his disappearance, lived in the same cabin with Ephey on the Perkins plantation and for 15 years continued to live on the place, says:

'It was the general understanding and belief among the colored people around here that he had disappeared, left the country. Never knew, never heard, where he went.'

Melinda Perry, who lived on the Perkins place and witnessed the marriage, says:

'I heard he had gone away, but I don't know where he went. I never did hear. Q. You never did hear where he went? A. No sir; never heard.'

Wilson Foster, who lived on the Perkins place, and witnessed the marriage, says:

'From the time Nelson Smith disappeared, never saw or heard of him.'

Jake Brown, who lived on Perkins' place and witnessed the marriage, and in fact, occupied one end of a cabin while Nelson and Ephey occupied the other, says:

'Q. What became of him? A. He disappeared away, and nobody ever knew where he went or why he went. Q. You mean you don't know? A. No, sir, I don't know. His own mother, she never could get any answer from him that I ever heard of, and I never heard tell of him or nobody else -- never did hear tell of why he disappeared or where he disappeared.'

Mollie Williams, who lived on Perkins' place and witnessed the marriage, says:

'Q. Where did he go when he left? A. I don't know where he went. Q. Do you know when he disappeared? A. No, sir. I don't know, but I know when he went off the place. Q. And at that time you knew that he had gone somewhere? A. Yes, sir; gone somewhere.'

It is next to incredible that the wife and baby of this young man could have gone to New Orleans with him, when he there enlisted as a soldier in the United States Army, and the gossips in the Negro quarters of this plantation not have known of it.

Fourteen years later, on the 8th of July, 1880, Ephey and the defendant were married. The defendant attended in person to obtaining the license. And from that time up to the death of Ephey, in March, 1913, for near 33 years, they lived, and labored and moved in their social world, together, as lawful husband and wife, and his large means for a colored man made them prominent in the community; and he buried her as his lawful wife, attending the funeral and listening to the minister's eulogy of her many virtues as a wife and a woman -- all without a breath of question from any quarter, of the regularity or legitimacy of the marriage.

After Ephey has been buried and cannot testify to her own good faith, and the defendant is confronted with the rights of her daughter by the former marriage, he says of her that at the time of her marriage she told him that her husband had enlisted and gone to Texas, and that she had gone as far as New Orleans with him, and remained there with him while he was training for the army and until he went to Texas, and that he had supported her and her child up to 1871. And he adds that for six or seven months before his own marriage to Ephey, they lived together in a house on Laurel street in Baton Rouge, and that it was she and not he who was solicitous about the marriage; that he himself was wholly indifferent about it; wanted to write to the husband, or make inquiries about him, but that she objected to his doing so.

In this statement as to cohabitation, he is contradicted by Belle Jackson, who at that time was the roommate of Ephey, and also by plaintiff, who was then 13 years old and lived with her mother. He is corroborated, however, by his brother, Ike Squire.

In his examination touching the circumstances under which he obtained the marriage license, defendant testifies that he informed the clerk of court of the woman being already married, and of her not knowing how long it was since she had heard of her husband, and whether he was dead or not, and that the clerk told him that he, Pompey Squire, would be safe if the last news from the husband had been 5 years past. He adds that all he cared for at that time was to make sure that he could not be prosecuted for bigamy; that she had no reason to believe the man was dead; that it might have been his own idea and intention in good faith that their marriage should be legal and valid, but it did not look as if there was the same good faith on her part because she would not let inquiry be made for the man; that his reason for not calling the marriage off was because he had promised and was --

'strong to my word, and thought it wouldn't bother me -- if he comes back it is still his wife.'

Further on he says:

'I thought it was a bad condition, and I made the proposition to her that of course if the other man come back she would have to go with other man, because she is his wife. If she was here to-day she would answer the same words what I am speaking to you now. I made to her just like that -- that if the other man come he would have to have her because no woman can hold two husbands in the same territory -- that is the law.'

He testifies that she told him that she had remained with her husband in New Orleans while he was training for the army; that they went to New Orleans by the train.

All these statements as to what she told him are entirely inconsistent with the distinct recollection of the several witnesses already referred to, who lived in the same quarters, and some in the same house with Ephey, and were in daily contact with her, who testify that the husband simply disappeared. These witnesses, and other witnesses to whose testimony we will not refer, who like them were the associates of Ephey, say that she always told them that she did not know what had become of her husband. First of all, there is plaintiff, who always understood from her mother that she did not know where her husband was. Next, there is the sister of Ephey, who lived with her for a time, who always heard Ephey say she did not know what had become of her husband. Then, Judy Williams, who was the secretary of the church to which Ephey belonged, and as such, received and distributed the letters, who says that in 1871, Ephey received a letter from the mother of Nelson Smith.

'Q. What did the letter say? A. Well, just inquiring from her, as far as I can recollect, saying she wanted to know where her son Nelson was; that he didn't write to her and didn't let her hear from him no more, and then she says to me: 'Well, you can tell her where he is; I don't know myself.'

She remembers the date of this letter because that was the year she was secretary of the church. This witness says Ephey often told her she had not heard from her husband since he left, and did not know where he was, and would go to him with her child if she did.

Next is Andrew Williams, husband of Ephey's aunt, who always heard Ephey say she did not know what had become of her husband. Belle Jackson, who at the time of Ephey's marriage to defendant was her roommate, makes the same statement.

Opposed to this is the testimony of defendant and of his brother, Ike, and of Nelson Smith, the husband, and of Sallie Williams, Ella Young, and Ella Lewis.

Ike Squire says that he lived at one time with his brother, and that Ephey often told him that Nelson Smith had been mustered out of the army.

'Q. Did she say she had heard from him; got a letter? A. She got several letters, but she could not read, and would have to go to other people to get them read for her. She said she knew where he was. Q. Did she ever say who read that letter? A. If she did, I don't remember it. Q. But you are sure that she said she got it when he was mustered out of the army? A. She said that they told her he was mustered out of the army. Q. That the letter told her that; who told her that? A. If she told me, I have forgotten.'

An effort is here made to substantiate by this witness defendant's theory that Ephey got a letter from her husband in 1871, announcing that he had been mustered out of the army; but, instead of testifying to that one single letter received in 1871, and which according to the defendant was from the husband announcing his having been mustered out of the army, this witness testifies that she got several letters, and that 'they,' me...