51 Ala. 381 | Ala. | 1874
The reasons which support the legality of the marriage in Stikes, adm’r, v. Swanson et al. (44 Ala. 633), apply equally to the marriage insisted on in this case. Here, matrimonial cohabitation of John J. Ivey and Tempy Ivey is shown, by the preponderance of the evidence, for near forty years. And this status of these parties is also affirmed by all the circumstances of the case. John J. Ivey was a freedman, and Tempy Ivey lived with him as his wife, in this State, for many years before his death, openly and publicly, without offence to the law, or the morals of the community. The reasons for such an acquiescence tend strongly to show the legality of the cohabitation. Mrs. Ivey’s testimony shows that there was an actual marriage, possibly consummated in the State of South Carolina. Certainly no one could have a better knowledge of this fact than she. Such marriages in that State were permitted to be loosely entered into ; and' where it is not shown that there is a statute governing their celebration, it will be presumed that they are sufficient, if they have been contracted as at common law. The common law is presumed to prevail in those States of a common origin with our own, unless the contrary is shown. 1 Brick. Dig. p. 349, § 9, and cases there cited. Whether Mrs. Ivey is the child of a white woman and a colored man, or of a colored woman and a white man, may admit of some doubt. If she was the former, her status could not be changed by a sale which treated her as a slave. The sale did not affect her right to liberty. She was still free notwithstanding the sale. Ivey so treated her. He did not dispose of her in his will; but he sought to protect her and provide for her, with unusual care. They were both persons of mixed blood, and in their unhappy condition they contracted aud consummated such a marriage as the law then permitted. It was clearly such a marriage as would have been sufficient at common law. It was not wholly void. Stikes,
The learned chancellor’s view of the facts and the law, as shown by his decree, was correct. The judgment of the court below is, therefore, affirmed, with costs.