Keen v. Keen
| Citation | 83 S.W. 526,184 Mo. 358 |
| Parties | SOPHRONIA KEEN v. ELLIS KEEN, Appellant |
| Decision Date | 23 November 1904 |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
D. P Dyer and T. F. McDearmon for appellant.
(1) Section 2918, Revised Statutes 1899, was not enacted for the purpose of legalizing void marriages, but for the purpose plainly expressed, of making legitimate the children or issue of illegal or void marriages. But for this it could serve no purpose, for the obvious reason that the issue of legal marriages, whether ceremonial, under the statute, or at common law, are, by virtue of the statute of descents and distributions, legitimate and inherit as of course from their parents. The above statute is an enabling or remedial one enacted for broad, humanitarian purposes, and should be and is liberally construed. Green v. Green, 126 Mo. 17; Gates v. Seibert, 157 Mo. 254; Lincecum v Lincecum, 3 Mo. 441; Johnson v. Johnson, Admr., 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 276; Dyer v. Brannock, 66 Mo. 391; Marshall v. Railroad, 120 Mo. 277. (2) A void marriage is equivalent to no marriage in the strict legal sense. The purpose and effect of section 2918 is to legitimate the issue of parents, begotten outside the relation of lawful wedlock. The defense in this case could not be successfully assailed, if it were granted that the relation between Eli Keen and Phoebe Keen was unlawful and the defendant was the issue of such unlawful relationship. Lee v. Lee, 161 Mo. 52; Green v. Green, 126 Mo. 17; Gates v. Seibert, 157 Mo. 254; Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 276; Dyer v. Brannock, 66 Mo. 391; Boyce v. Dively, 58 Mo. 510. (3) Marriage is a civil contract at common law and under our statute. R. S. 1899, sec. 4311; Dyer v. Brannock, 66 Mo. 391; Cargile v. Wood, 63 Mo. 501; Ashford v. Ins. Co., 80 Mo.App. 638. No formality or ceremony is necessary to consummate a legal marriage contract; only the consent of parties with legal capacity to contract is needed. If it were necessary for the defense to show a valid marriage contract at common law, or under the statute, which we deny, the testimony in this case amply sustains a valid marriage contract between Eli Keen and Phoebe Keen, at common law. Even if it be conceded that Phoebe Keen, at the time the cohabitation began between her and Eli Keen in 1850 or 1851, was, on account of the fact that she was a negro woman and a slave, incompetent to contract, yet the State Constitution abolished slavery on the fourth of July, 1865, and thus removed the disability, if any. It may be said, admitting this to be true, that the statute of this State interposes its prohibition against the marriage contract or relation between a white man and negro woman. Granted that the statute does prohibit such marriage. It also prohibits marriages between parents and children, including grandparents and grandchildren, of every degree, between brothers and sisters of the half, as well as of the whole blood, and between uncles and nieces, aunts and nephews, first cousins as well as white persons and negroes, and declares all such marriages absolutely void. Section 4313 of same statute declares all marriages, when either of the parties has a former wife or husband and living, void, unless the former marriage shall have been dissolved. Notwithstanding such marriages are by statute declared void, and therefore no marriage ab initio, yet clearly under section 2918, Revised Statutes 1899, and the decisions of this court, the issue of any such forbidden or void marriage would be legitimate and capable of inheriting from their parents. Green v. Green, 126 Mo. 17. (4) Assuming, for the sake of argument, but by no means conceding such to be the law, that capacity to contract a legal marriage is necessary to constitute a de facto marriage, which is all that is required in this case to sustain the title of the defendant, the cohabitation of defendant's father as man and wife manumitted her and gave her that capacity. Any act inconsistent with slavery manumits the slave, such as a devise of property to the slave by the owner. 5 Har. & John (Md.) 190; Gullemette v. Harper, 4 Rich. (S. C.) 186. Or suing a slave for debt. Outfield v. Waring, 14 John. (N. Y.) 188. Or consent by the owner that the slave marry a free woman. Reeves' Domestic Relations (3 Ed.), 341; (4 Ed.), 419. The only limitation on the right to emancipate under the laws of Missouri (R. S. 1855, p. 1478), was that it should be by deed or will, etc., and when the facts showed a manumission by implication a deed to that effect was presumed. The facts in this case justify such a presumption. Durham v. Durham, 26 Mo. 507; Lewis v. Hart, 33 Mo. 535. But if there had been no manumission by implication previously, the Constitution which abolished slavery in this State took effect July 4, 1865, and Phoebe Keen thereby became capable of contracting a valid marriage at common law, and the continuation of a de facto marriage previously contracted was thereby validated, and the issue of such de facto marriage, previously illegitimate, thereby became legitimate. R. S. 1899, secs. 2916, 2917 and 2918. Johnson v. Johnson, 45 Mo. 595; Smith v. Smith, 1 Tex. 621; Gerod v. Lewis, 7 Martin 559; Bishop on Marriage and Divorce (New Commentaries), sec. 665; State v. Cooper, 103 Mo. 266; State v. Bittick, 103 Mo. 183.
Jno. F. McGinnis and C. W. Wilson for respondent.
(1) It is agreed by all concerned that there could be no lawful marriage, in this State, between Eli Keen, a white man, and Phoebe, a negro woman. Such marriages have been prohibited by express statute and pronounced void or absolutely void for seventy or eighty years. G. S. 1835, p. 407, sec. 3; R. S 1899, sec. 4312. (2) There is no claim or pretense that Eli Keen and the negro woman were ever married in form of the statute. There was no ceremonial marriage by a minister of the gospel or an officer of the law. The sole claim of the defendant is, that there was a common law marriage between Eli Keen and Phoebe. But the evidence utterly fails to show that there ever existed any common law marriage. (3) There was not one scintilla of evidence produced before the court to show that there was ever any marriage contract or agreement of any kind entered into by Eli Keen, the white man, and Phoebe, the negro woman. The agreement or contract between the parties, competent to contract, is essential to constitute a common law or any kind of marriage. State v. Cooper, 103 Mo. 274; State v. Bittick, 103 Mo. 191; Post v. Post, 70 Ill. 487; Bank v. Galbraith, 149 Mo. 536; McKenna v. McKenna, 180 Ill. 577; Robinson v. Robinson, 188 Ill. 371; Rundle v. Pegram, 49 Miss. 751; R. S. 1899, sec. 4311. (4) There was no direct testimony at all that Eli Keen and the negro woman, Phoebe, entered into any marriage agreement or contract, at any time during their cohabitation. But, to the contrary, all the evidence points strongly, almost conclusively, to the fact that there was no marriage contract or agreement, and that the relations between these parties began without sanction of marriage. For these facts are clear and undisputed: (a) Eli Keen was a white man, not quite 21 years old, who owned his farm and seems to have been living to himself. (b) Phoebe was a negro woman and a slave, having a child, Martha, three or four years old, of which Eli Keen was not the father. (c) At an administrator's sale, which occurred June 1, 1850, the negro woman, Phoebe, and her child, Martha, were put up for sale at public auction, and Eli Keen purchased them and they thereby became his slaves. (d) Eli Keen took these slaves to his home and thereafter the relations with his negro woman, Phoebe, began. Every known fact and every surrounding circumstance repels the idea of any marriage in fact between these parties. 1. The fact that Keen was a white man and Phoebe a negro, which they knew, rendered a lawful marriage between them in this State impossible. G. S. 1845, p. 723, sec. 3; G. S. 1855, p. 1061, sec. 3. 2. The fact that marriage between a white and negro was highly criminal. R. S. 1899, sec. 2174. With some slight modification such has been the law for the last sixty or seventy years. 3. The fact that at the time the cohabitation between these parties began the negro woman, Phoebe, was a slave and incapable of contracting. Whereas, by statute, it was declared that "marriage is considered in law a civil contract, to which the consent of the parties capable in law of contracting is essential." G. S. 1845, p. 729, sec. 1; R. S. 1855, p. 1061, sec. 1. It is the accepted doctrine, wherever African slavery prevailed, that the slave was incapable of contracting. Hall v. United States, 97 U.S. 30; Malinda & Sarah v. Gardner, 24 Ala. 723; Howard v. Howard, 6 Jones (N. C.) Law 235; Johnson v. Johnson, 45 Mo. 595; Consensus non concubitas facit matrimonium. There can be no such thing as a marriage in fact without the consent of the parties capable in law of contracting. (5) There being a total absence of any direct or affirmative proof of a marriage contract or agreement or of an actual marriage in fact between Eli Keen, a white man, and Phoebe, the negro woman, the evidence was wholly insufficient to raise a presumption of marriage in fact between them. For, in order to raise a presumption of marriage in fact (in the absence of direct and positive proof of the fact), three things must be made to clearly appear, namely: (a) Cohabitation as man and wife; (b) public acknowledgment of the relation by the parties; and (c) the cohabitation and acknowledgment must be of such a character as to establish the reputation in the community that the parties are in fact married. No inference...
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