Manley v. Pattison

• Decision Date: 20 January 1896
• Citation: 73 Miss. 417,19 So. 236
• Court: Mississippi Supreme Court
• Parties: T. J. MANLEY ET AL. v. JOSIE PATTISON ET AL

19 So. 236

73 Miss. 417

T. J. MANLEY ET AL. v. JOSIE PATTISON ET AL

Supreme Court of Mississippi

January 20, 1896

October 1895

FROM the circuit court of Tallahatchie county HON. R. W WILLIAMSON, Judge.

The opinion states the case.

Judgment reversed.

Wm. C McLean, for the appellant.

"By the common law, continuous absence beyond seas for seven years, during which time nothing is heard from the party by those who are likely to hear, death is presumed, as a presumption of law. But if there is no proof of unexplained absence, the mere length of time, even supposing that would make the party eighty years old, if living, is not, by itself, enough to prove death. The presumption, when not governed by statute, is one of experience, varying logically with the circumstances of each particular case." Wharton on Ev., § 1274.

This presumption of death of a child carried off by its parents is, therefore, not allowable, because the absence is explained by the right of the parent to control and direct the child. The infant cannot, by the exercise of his own volition, absent himself from, or conceal himself within, the state while in the custody and under the control of his parents. The law recognizes his incapacity, and will not impute the act of removal to him as his own. There was no evidence that any of the family ever left the state, and the evidence offered to show death is wholly insufficient and unreliable. To apply the statute in a case like this would be an instance of what an English judge denominates "presumption gone mad."

Stone & Lowry, for the appellees.

The fact that the children of Rhew were of tender years when they left their usual place of abode, and are still minors, does not affect the presumption of their death arising under § 1737, code of 1892. No exception in favor of persons under the disability of infancy can be engrafted on that statute. Nothing had been heard of the parties in question for more than seven years by those most likely to hear from them, and they were advertised for in a newspaper, and some inquiry was made through the Masonic lodge. The evidence was sufficient to warrant the peremptory charge given by the court in favor of the appellees. Best on Ev., p. 405; 1 Am. & Eng. Enc. L., title, Absence.

OPINION

COOPER, C. J.

The appellees, claiming as devisees under the will of Mrs. S. O. Rhew, brought this action of ejectment, to recover the lands demanded, against Manley, who is the guardian of the infant children of Dr. J. P. Rhew, deceased, and against Darby, his tenant. Mrs. S. O. Rhew died before February 9, 1880, having, by her will, made the following disposition of the lands: "I give to Jas. P. Rhew, my adopted son, for his natural life, my dwelling and all the lands I now possess (except that herein donated or given to Miss Sarah Lee), and, upon his death, to his children, if any, and if he should die without leaving any living children, or should die with children and they should die, thereupon, or at their death, the dwelling, the land and all the improvements and appurtenances thereunto belonging to be equally divided between Jodie Calhoun, Bessie Calhoun and Sue Lee Cossan."

J. P Rhew died in 1881, leaving two children, and another was born after his death. In the year 1883 his widow married one Hagard, who removed with the family to Hernando, and then to Hazlehurst, in this state, and, becoming there involved in some trouble,...