Tartt v. Negus

• Decision Date: 23 June 1900
• Citation: 28 So. 713,127 Ala. 301
• Parties: TARTT ET AL. v. NEGUS.
• Court: Alabama Supreme Court

28 So. 713

127 Ala. 301

TARTT ET AL. v. NEGUS.

Supreme Court of Alabama

June 23, 1900

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action in ejectment by Michael Tartt and another against Julia D Negus. From a judgment in favor of defendant, plaintiff's appeal. Affirmed.

The plaintiffs are the sisters of one Gus Mescepts, deceased, who claimed title to the property sued for by inheritance, as the only heirs and next of kin of the said Gus Mescepts deceased. The defendant pleaded the general issue. The plaintiffs proved, and it was admitted, that they were the sisters of the said Gus Mescepts, deceased. It was further shown by the evidence that Gus Mescepts died September 21 1898, and that at the time of his death he owned the lot sued for in this action, which said lot, together with its improvements, is worth from $600 to $650. It was undisputed by the evidence that about 1876 to the time Gus Mescepts died one Polly Mescepts and her two children, Willie and Dan lived together with Gus Mescepts, on said premises, with the exception of about two years before the institution of the suit, when Willie Mescepts and his wife and children lived away from said house, but in the neighborhood. After the death of Gus Mescepts, Polly Mescepts and her children continued to reside on said premises until January 12, 1899, on which date said Polly and Dan Mescepts and Willie and his wife executed a deed to the defendant, Julia D. Negus, in which they conveyed said property, and Julia D. Negus immediately went into possession thereof, and resided thereon at the time of the institution of the suit. There was evidence introduced by the defendant tending to show that during the time Gus and Polly Mescepts lived together they were generally reputed to be husband and wife, and were so considered by the people living in their neighborhood. Polly Mescepts, as a witness, testified that she was married to Gus Mescepts in 1866 or 1867, and that this marriage was performed by a person represented to her to be a minister, and that from the time of such marriage she and Gus Mescepts lived together continuously as husband and wife; to this marriage Willie and Dan Mescepts were born; that Gus Mescepts always acknowledged her and her children to everybody as his wife and children. There were several witnesses introduced on behalf of the defendant who testified that they had known Gus and Polly Mescepts for a number of years, and that they lived together as man and wife, and were so considered by their neighbors; that Gus Mescepts treated Polly Mescepts as his wife, and had introduced Willie and Dan Mescepts as his sons. There were introduced in evidence a deed from Gus Mescepts purporting to convey the property owned by him, which was signed by him and Polly Mescepts, his wife, and there were many other facts testified to which tended to show that Polly Mescepts was Gus Mescepts' wife, and her two sons were his children. The plaintiffs, in rebuttal, introduced several witnesses whose testimony tended to show that Gus and Polly Mescepts were never legally married; that, while Gus and Polly Mescepts lived together, it was not as man and wife, but in an adulterous relation; and that Willie and Dan Mescepts were born to Polly before Gus Mescepts began to live with her. There were also witnesses for the plaintiffs who testified that Gus Mescepts had on several occasions stated to them, respectively, that he was never, in fact, married to Polly. Two of the witnesses introduced in behalf of the plaintiffs testified that they were present during the last illness of Gus Mescepts, and just before he died; that Gus Mescepts was a Catholic, and that he told the priest who administered to him that he was not married to Polly Mescepts; and that Gus Mescepts was buried from his house, and not from the church, because he was living with Polly Mescepts in adultery. On the separate examinations of three of the witnesses, they were each asked the following questions: "Did Gus ever tell you that Polly was his wife?" "Did Gus ever say to you that those were his children?" "Did Gus ever tell you that he was not married to Polly Mescepts?" The defendant separately objected to each of these questions, upon the ground that they called for a statement of the deceased to a person interested in his estate and in the result of the present suit. The court sustained each of these objections to the separate questions as propounded to each of said witnesses, and to each of these rulings the defendant separately excepted. Gus Mescepts, the younger of the two brothers (Will and Gus), testified that he was about 25 years of age. There was no testimony in conflict with this testimony of the witness Gus Mescepts. The suit was instituted on January 31, 1899.

In his oral charge to the jury, the court, among other things instructed them as follows: "In this state a valid marriage may exist even without a ceremony and without the formal sanction of the church. Now, in some churches they do not recognize any other marriage as valid unless it is performed according to their ritual and their form of service. But we have nothing to do with that question. It is simply- So far as this case is concerned, you are to determine whether there was a valid marriage according to the laws of Alabama." The plaintiffs separately excepted to this portion of the court's oral charge, and also separately excepted to the court's refusal to give each of the following charges requested by them: "(6) Although the jury may believe from the evidence that Gus and Polly lived together for many years with all the visible appearances of being husband and wife, still they must find for the plaintiffs, if they do not further believe from the evidence that Gus considered her to be his lawful wife." "(8) Although the jury may believe from the evidence that Gus Mescepts lived with Polly for many years with all of the outward appearance of their being husband and wife, still they must find for the plaintiffs, if they do not further believe from the evidence that he actually considered her to be his wife. (9) The jury should review, weigh, and take into consideration all the evidence, and if, after doing so, they do not believe that Gus Mescepts considered Polly to be...