Keen v. Keen
Decision Date | 23 November 1904 |
Citation | 83 S.W. 526,184 Mo. 358 |
Parties | KEEN v. KEEN. |
Court | Missouri Supreme Court |
2. The fact that a negro woman continued living with a white man without any marriage ceremony after her emancipation, in 1865, as she had done before, does not raise a presumption of a common-law marriage, in view of the fact that the parties separated in 1883, and that a marriage between such persons would be criminal. Rev. St. 1879, c. 24, § 1540; Rev. St. 1889, c. 47, art. 8, § 3797; Rev. St. 1879, c. 15, art. 8, § 2174.
3. Rev. St. 1899, § 2918, providing that "the issue of all marriages, declared null in law, or dissolved by divorce shall be legitimate," does not apply to children of a white person and a negro who lived together without any marriage, either ceremonial, statutory, or common-law.
Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.
Action in ejectment by Sophronia K. Keen against Ellis Keen. From a judgment for plaintiff, defendant appeals. Affirmed.
D. P. Dyer and T. F. McDearmon, for appellant. Jno. F. McGinnis and C. W. Wilson, for respondent.
This is an action in ejectment to recover an undivided one-half of 71 67/100 acres of land, being a part of United States survey No. 1,765, in St. Charles County, Mo. The petition is in the usual form, and the ouster is laid as of March 2, 1901. The answer is a general denial. Eli Keen is the common source of title. The plaintiff claims one-half of the land, subject to the payment of debts, under section 2939, Rev. St. 1899, on the ground that she is the widow of Eli Keen, and that he died without any child or other descendants in being, capable of inheriting. The defendant claims to be the legitimate child of an alleged common-law marriage between Eli Keen, a white man, and Phœbe, a negro woman. There was a judgment below for the plaintiff, and the defendant appealed.
At the request of the parties the circuit court made a special finding of facts, together with conclusions of law, separately stated, which it is agreed is a fair statement of the facts, except that the defendant says that while the court found that Eli Keen and Phœbe lived together and cohabited without the sanction of marriage, and that the reputation was that they had never been married, it should have said they were never married "by ceremony"; but, as hereafter shown, the finding of the court covers both a ceremonial and a common-law marriage, and the addition of the words "by ceremony" would materially narrow the finding of the court, and would beg the very question involved in this case. For there is no pretense that there was any ceremonial marriage, and the only question is, was there a common-law marriage? The addition of the words "by ceremony" would therefore leave the question of common-law marriage an undecided question in the case, and it is plain that such a marriage was intended to be decided by the court, as well as a ceremonial marriage. This is an action at law, and by consent was tried by the court without the aid of a jury. There is abundant testimony to support the finding of facts by the court, and therefore that finding of fact is conclusive upon the parties in this court. No instructions were asked or given, and the only question here, therefore, is, did the facts found warrant the conclusions of law reached by the trial court?
The findings of fact are as follows:
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