Long v. Barnes

• Decision Date: 31 October 1882
• Citation: 87 N.C. 329
• Parties: GEORGE W. LONG v. HUGH BARNES and others.
• Court: North Carolina Supreme Court

87 N.C. 329

GEORGE W. LONG

v.HUGH BARNES and others.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

EJECTMENT tried at Spring Term, 1882, of CALDWELL Superior Court, before Avery, J.

The defendants admitted in their answer that they were in possession of the land described in the complaint, and alleged that they claimed through John Barnes and were the owners of an undivided half of the land, and tenants in common with the plaintiff.

The plaintiff offered in evidence a deed from John Barnes to Thomas Barnes and Ailsy Barnes, dated January 14, 1869; also a deed from Thomas Barnes to the plaintiff, dated November 25, 1879.

Thomas Barnes and Ailsy Barnes were slaves up to their emancipation in 1865, and belonged to John Barnes. Ailsy died before November, 1879, and Thomas is still living.

It was in evidence that Thomas and Ailsy Barnes lived together as man and wife, recognizing each other and recognized by others as man and wife, while they were slaves and after their emancipation in 1865, and until Ailsy died, and that the defendants were their children, born while they were cohabiting as slaves.

No record of the marriage between them had ever been made in compliance with the act of 1866, ch. 40, §5.

The only issue submitted to the jury was, “Was Thomas Barnes, the grantor of the plaintiff, and Ailsy Barnes, the mother of the defendants, husband and wife on the 13th day of January, 1869.”

The defendants' counsel asked the court to instruct the jury:

1. That the legislature had not the power to make parties man and wife without their free consent, and that unless they gave their consent to the same in the manner pointed out by the statute, the statute is a nullity as to them, and they were never man and wife.

2. That if the parties were man and wife without complying with the statute, the change in the rights of married women by the constitution (Art. X, §6,) had the effect to change the construction heretofore placed by the courts upon a conveyance to husband and wife jointly, and that Ailsy Barnes took by the deed from John Barnes an undivided half of the land in controversy, which descended to the defendants, who were admitted to be her heirs at law.

The court refused to give the instructions asked, and the defendants excepted.

The court charged the jury:

1. That if they were satisfied by a preponderance of testimony that Thomas Barnes and Ailsy Barnes were slaves prior to the year 1865; were emancipated during that year, and while slaves and up to the time when the act of March 20th, 1866, took effect, cohabited together, recognized each other, and were recognized by others, as man and wife, then in contemplation of law they were man and wife from the time such cohabitation began.

2. That the acknowledgment provided for in section five, chapter 40, of the act of 1866, is, when entered by the clerk in conformity to the requirements of the statute, prima facie evidence of a marriage; but it is not essential to the validity of a marriage contract between freed persons, who were cohabiting together as husband and wife when the act took effect, that such acknowledgment should have been made or entered.

3. That if Thomas and Ailsy Barnes were husband and wife, then by the deed of January 13th, 1869, the land in controversy vested in Thomas and Ailsy as joint tenants, and upon the death of Ailsy, the whole estate survived to Thomas, and his deed would pass the entire interest in the land to the plaintiff.

Defendants' counsel excepted to the charge.

The jury responded in the affirmative to the issue submitted to them, and there was judgment in favor of the plaintiff. Appeal by defendants.

No counsel for the plaintiff.

Mr. M. L. McCorkle, for defendant's .

ASHE, J.

The first exception taken by the defendants' counsel was to the refusal of His Honor to charge the jury, “that the legislature had no power to make parties man and wife without their free consent, and unless they gave their consent to the same in the manner pointed out by the statute, the statute is a nullity.”

The ruling of His Honor upon this instruction as asked was not erroneous. The first branch of the instruction is answered by the fact that Thomas Barnes and Ailsy Barnes...