Wiley v. Harlow

• Decision Date: 05 January 1918
• Docket Number: No. 18619.,18619.
• Citation: 202 S.W. 533,274 Mo. 170
• Parties: WILEY et al. v. HARLOW.
• Court: Missouri Supreme Court

202 S.W. 533

274 Mo. 170

WILEY et al. v. HARLOW.

No. 18619.

Supreme Court of Missouri, Division No. 2.

January 5, 1918.

Motion to Modify Opinion Overruled April 9, 1918.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Action by Eliza Wiley and another against Dorothy A. Harlow. Judgment for plaintiffs, and defendant appeals. Reversed, and remanded for new trial.

This is an action tried in the circuit court of Pike county whereby it is sought to determine title to a certain tract of land situate in said county. The petition contains also a count in ejectment. Upon a trial below judgment went for plaintiffs for an undivided one-ninth interest each in the premises in controversy. From this judgment, after the usual motions, defendant has appealed.

The agreed common source of title is William Smith, a negro, sometimes called William Yager, who was before the Civil War a slave. Plaintiffs, Eliza Wiley and Albro Smith, claim to be the children and only heirs of William Smith. The defendant is the grantee by mesne conveyances of certain other children whom defendant avers to be the only and all of the heirs of said Smith. According to the respective contentions of plaintiffs and defendant, said William Smith was, while he was a slave, twice married. In the statement of the case, and in the discussion thereof, we shall use the word "married" to express the relation which subsisted between Smith and the two negro women who play the chief parts in the facts of this case, though fully recognizing that the above word with regard to the sexual relations which subsisted prior to emancipation among male and female slaves is not a precisely accurate one.

According to the testimony adduced by plaintiffs, William Smith was owned by one Yager, who resided with his slaves on a farm in Pike county. Near the Yager farm, perhaps adjoining it on the south, resided a man by the name of John South, who owned numerous slaves, among others a negro woman called Adeline, and who, taking the name of her master, was known as Adeline South. According to the testimony of one Collins South, an old negro some 75 years of age, who was himself a slave, and who likewise belonged to John South, the negress Adeline was married about the year 1850 to said William Smith. There was a ceremony of marriage between the two, performed, according to the latter witness, by a negro preacher by the name of Enoch Jackson. From and after the marriage of Smith to the woman Adeline these two lived together for some three years as man and wife in a cabin on the farm of John South, the master of the woman. From the relation thus established there were born to William Smith and Adeline, three children, of whom one is the plaintiff Eliza. The date of the birth of the plaintiff Eliza does not clearly appear (which obscurity likewise attaches to many of the facts testified to by the witness Collins South), but the witness is clear upon the point that Eliza was born either prior to or in the year 1853; for in the latter year John South removed with all of his slaves, including the woman Adeline and the child Eliza, to a point in Lincoln county some 30 miles away from his former home. According to the witness Collins South, Smith continued to live with the woman Adeline after her master had taken her to Lincoln county; for this witness says that Smith came to see her every Saturday night, and spent Saturday night and Sunday with her, and that from this relation there was born to the woman Adeline, in 1855, the plaintiff Albro Smith. These relations of Smith with the woman Adeline continued, according to tills witness, till a period at least subsequent to 1859. Adeline South lived until 1878, and was the mother of a number of children besides those here concerning us. The subsisting relations, after plaintiff Albro Smith became old enough to remember, are likewise corroborated in a way by him, but he states that his mother always impressed it upon him and the other children that they were not to mention the relations subsisting between her and Smith. So much, in brief, for the testimony upon which plaintiffs rely to make out their heirship to Smith.

On the part of defendants it is shown that their title emanates from Julia Gaines, Homer Smith, and others, the children of William Smith by one Harriet Wheeler, and who claim to be the only heirs of said William Smith.

The testimony adduced by defendants conclusively (in the sense that it is not disputed) shows that in the year 1853 William Smith went through a ceremonial form of marriage with a negro slave woman who belonged to a man named Hedges, and who was called Harriet Wheeler. The fact of this marriage is, as stated, shown conclusively. The family record a William Smith, which was given by Smith to his daughter, who testified in the case and identified this record, shows that this last marriage of Smith to the negress Harriet occurred either on the 15th of January or the 15th of June, 1853. The writing is blind, and the doubt is due to the difficulty of deciphering this date. Numerous witnesses also testify to the fact of this marriage of Smith and the woman Harriet. One of these, a son of Harriet's old master, swears that he was personally present at this marriage ceremony, and that it was performed by the preacher Enoch Jackson. Numerous witnesses testify that from and after Smith's marriage to Harriet in 1853 these two continuously lived together as man and wife, according to the custom of slaves, until they were emancipated during the war, and that thereafter they continued to live together until Smith's death in 1904. From this relation between Smith and the woman Harriet there were born nine children, two of whom died in infancy, and the others of whom, except two who died leaving heirs, and with whom we are not concerned here, were the mesne grantors of the defendant herein.

Upon a trial of the case below, without a jury, the court found, as stated, that plaintiffs were each entitled to an undivided one-ninth of the land in dispute, and that defendant was entitled to an undivided seven-ninths thereof.

Such further facts as we may find it necessary to state in order to make clear the view which we take of this case will be found in our opinion.

Pearson & Pearson, of Louisiana, Mo., and J. E. Thompson, of Bowling Green, for appellant. Hostetter & Haley, of Bowling Green, for respondents.

FARIS, J. (after stating the facts as above).

This is a law case tried by the court sitting as a jury, without any declarations of law asked, given, or refused upon either side. In such case it is settled law that the judgment of the trial court must be upheld upon appeal, if there is any substantial evidence to support it....