Hayden v. MitchellHayden v. Mitchell
- Reporters:
- , ,
- Before:
- Little
The plaintiff is one of the children of Harriet Eliza Hayden and J. A. Hayden, and a grandson of Lucinda Cone, widow of Reuben Cone, who intermarried with W. H. Underwood. He brought his action to recover a one-ninth undivided interest in certain land in the city of Atlanta. He relied in part for a recovery upon an alleged marriage contract which it was claimed was entered into after the death of Reuben Cone, between W. H. Underwood of Floyd county, and Lucinda *433Cone of Fulton county. . It was alleged by the plaintiff that the original had been lost, and he offered to introduce in evidence a copy of such contract from the records of Fulton county. The contract in question purports to have been executed in Fulton county, Georgia, and is dated November 5, 1854. It recites that William H. Underwood, of Floyd county, State of Georgia, in consideration of a marriage to be had and solemnized between him and Lucinda Cone, of Fulton county, does covenant, grant and agree, among other things, that certain real estate in the city of Atlanta, Fulton county, Georgia, which belonged to the estate of Reuben Cone, the late husband of Lucinda Cone, and which has not been sold since his death, and which is in the possession of Julius A. Hayden, tenant in coparcenary with Lucinda Cone, as equal heirs of Reuben Cone, and all of the property belonging to Lucinda, together with the profits of the same, shall form and remain her separate property and estate during her life, and then to be the property in fee simple of Harriet Eliza Hayden and her children, and shall not be subject to the debts of said Underwood, nor be sold or conveyed by him, nor in any manner controlled by him, but that the right and title to this property shall be vested in Julius A. Hayden and John Glen for the sole and separate use of said Lucinda. It is further covenanted and agreed that said Lucinda may dispose of such property by will to Harriet Eliza Hayden and her children, if she chooses to do so after marriage. From the copy, this contract purports to have been duly executed, and was recorded on the 7th day of December, 1854. It appears to have been probated on the oath of one of the witnesses on the 6th day of December, 1854. It appeared that in the record book in the clerk’s office and near the bottom of one or two of the pages from which this copy was taken, from long use and handling, a few of the words of the contract as there recorded had become somewhat defaced, some of the words illegible and a few altogether missing, small portions of the page being worn off.
As a foundation for the introduction of this copy as secondary evidence, R. C. Hayden, the plaintiff, testified that he did not have in his possession the original marriage contract be*434tween his grandmother, Mrs. Underwood, and Judge Underwood ; that he had looked thoroughly for it, but it was not in any of the papers that his father had, nor in those of his mother or grandmother; that lie had made inquiry of them and others and had not been able to find it; that he did not know and could form no idea where it was; that Mrs. Lucinda Underwood died in 1873; that his mother was a daughter of Reuben Cone and Lucinda Cone, afterwards Lucinda Underwood; that she was the only child; that his mother has eight living children, and is living herself; that his father died in February, 1890; that John Glen died in 1896 ; that plaintiff is twenty-six years old. In connection with the copy contract from the record offered in evidence, the plaintiff also introduced a witness, Anderson, who testified (a certified copy being waived), that he made this copy of the marriage contract from record book A, of the records of Fulton county; that it was copied correctly and was made about March, 1887. He took two books, that is, record book A, and the book into which marriage contracts were recorded, and from the latter obtained the few illegible words which had become partially erased in record book A. It was agreed between the parties, that W. H. Underwood died between the years 1856 and 1859. Evidence was also introduced, showing title from the State of Georgia to Reuben Cone to the land in question, the latter taking the title in the year 1838. Evidence was also introduced, tending to show that Judge Underwood lived in Atlanta, Fulton county, Georgia, from the date of his marriage to Mrs. Cone, and that he and his wife lived in said city until their death. A certified copy of the marriage license issued to Judge Underwood and Mrs. Cone by the ordinary of Fulton county, under date of December 5, 1854, together with a certificate of the pastor of the Presbyterian church in Atlanta, of the same date, that he had married the parties, were also introduced in evidence. After the introduction of this evidence, the plaintiff tendered a copy of the record of the marriage contract from book A of the records of Fulton county, Georgia, and, together with the same, the copy made by Anderson in 1887, to explain the illegible parts of the marriage contract as it at that time ap*435peared on the record. To the introduction of these papers the defendants objected on several grounds. Those necessary to be considered here are: (1) Because there was no proof made that there ever was a genuine original. (2) Because the deed (contract) has never been recorded according to law ; it should have been recorded in the county of Floyd, and the contract that has been attempted to be introduced in evidence was recorded in the county of Fulton. (3) That the deed (contract) upon its face showed that it was made on the Sabbath day, to wit, Sunday, the 5th day of November, 1854. These several grounds will be considered in their order.
This brings us to the consideration of the main point under this branch of the case: was the marriage contract properly recorded in the county of Fulton ? It will be remembered that it was executed one month prior to the solemnization of the marriage between the parties, and that the contract itself fixed the residence of W. H. Underwood, the prospective husband, in the county of Floyd. While we do not go to the extent of ruling that any estoppel was worked by this recital in the contract, because perhaps of immateriality to the subject-matter ■of the contract, it is nevertheless true that this recital in the contract is, between the parties thereto, prima facie evidence of the fact‘recited. 1 Greenl. Ev. §§23-26. .There is no evidence in the record which overcomes the effect of this recital, and it should be accepted as one of the facts in the case, that at the date of the execution of the contract W. H. Under: wood resided in the county of Floyd. There is evidence that from the date of and subsequent to the marriage, -which oc*438curred on December 5, 1854, he resided continuously in the county of Fulton. The evidence of these two facts is entirely consistent. Under the provisions of the law of force at the time of the execution of this contract, upon solemnization of the marriage the marital rights of the husband attached to all the real property owned and possessed by the wife, and such came under his dominion and was subject to the payment of his debts. The object of the record of a marriage contract,, which prevented this general rule of the common law from becoming applicable to the particular case, and preserved to the wife the ownership and secured to her the benefits of such property for her separate use, was to give to those who dealt or contracted with the husband legal notice of the reserved rights of the wife. Section 2483 of the Civil Code requires that “ every marriage contract . . must be recorded in the office of the clerk of the superior court of the county of the residence-of the husband, within three months after the execution thereof On failure to comply with this provision, such contract . . shall not be of any force or effect against a purchaser, or a creditor, or a surety, who bona fide and without notice may become such before the actual recording of the same.” The codification of this section was made from the act approved December 30, 1847, which was entitled “An act to require marriage settlements to be recorded.” Prior to that time there was no distinct statute requiring such record to be made, and to-obviate the evil which resulted this act provided, in the first section, that all marriage agreements or settlements which had before that time been executed within or without the State,, where the husband resided within the limits of this State, should be recorded within twelve months after the passage of the act. Section 2 of the act provided that all marriage agreements or settlements which might after its passage be made, and where the husband resided in this State, should be recorded within three months from the execution of such agreement or settlement; and section 3 of the act provided that if such record should not be made as required, the instrument should not be of force against a bona fide purchaser, creditor, or surety, who became such before the actual record of the same. So it *439will be seen that the object of this act, which was in force at the date of the execution of the marriage contract now under consideration, was to protect purchasers, creditors, and sureties of the husband ; and that by its provisions, in order to make such protection effectual, not only such contracts as were entered into subsequently to the passage of the act should be recorded, but those which had before that time been entered into by a husband who resided in this State should also be recorded.
It will be noted further that the language of the act required such record to be made in the county of the residence of the husband. Before the solemnization of the marriage, such contract could not have any force or vitality. Being founded upon the consideration of marriage, the terms became binding only when the marriage was accomplished. There was certainly no necessity, in order to carry out the provisions of the act, that a contract should be recorded, when by its terms it had no binding effect; and hence it was required specifically that the record should be made in the county of the residence of the husband, evidently not intending to provide for any record of the instrument until the relation of husband and wife had been established between the parties. It is true that -the words of the statute require the record of the instrument within three months from the date of its execution; but as the instrument could have no binding effect in law until the marriage, it can not be taken that these words should be given their literal meaning, because, if recorded prior to the solemnization of the marriage, it could not be done in the residence of the husband. Evidently it was contemplated that the execution of marriage contracts generally would immediately precede the solemnization of the marriage; and as far as our investigation has enabled us to determine, such is usually the case. It is not, however, necessary for us to make a formal ruling on this particular point, as it is not practically for determination here. These suggestions, however, are made as giving force to the line of reasoning which furnishes our conclusions on the question raised. As stated before, the contract recites the date of its execution to have been November 5, 1854. It was given vitality by the solemnization of the marriage, December 5, 1854. It is shown by the evidence that *440from the latter date W. H. Underwood resided in Fulton county, and the record was made in Fulton county on December 7, two days after the marriage. It thus appears that, within three months after the execution of the contract, it -was recorded in the county of the husband’s residence; and there was, we think, not only a substantial, but a literal compliance with the law as to the registry of this contract. If the object of the record be as stated above, then that object has been accomplished by this record, and it would not have been accomplished by a record in the county of Floyd; and it is our judgment that, under the facts of this case as they appear in the record, the registry of this instrument was properly made in Fulton county.
This is the history of our statute law on this subject. As we have before seen, there was no inhibition as to the making of contracts on Sunday by the common law; and whether the contract now under consideration was valid or invalid from *442the fact of its execution on Sunday, must be determined by the statutes in force. The English statute, 29 Car. 2, c. 7, s. 1, from which the statute of 1762 was taken, is in the following words: “That all and every person and persons whatsoever shall, on every Lord’s day, apply themselves to the observation of the same by exercising themselves thereon in the duties of piety and true religion, publicly and privately; and that no tradesman, artificer, workman, labourer or other person whatsoever shall do or exercise any worldly labour, business, or work of their ordinary calling upon the Lord’s day, or any part thereof (work of necessity and charity only excepted), and that every person being of the age of fourteen years or upwards, offending in the premises, shall, for every such offence, forfeit the sum of five shillings.” 14 English Common Law R. 269. We thus perceive that the statute in force in Georgia, by which the validity of this contract is to be determined, is precisely similar to the English statute. The latter has been repeatedly passed upon by the English courts; and while the adjudications made by them are not absolutely binding on this court, because such construction was made subsequently to our adoption of the statute, they are yet authority which this or any other court may consult with profit. The first English case which we have found reported is that of Drury v. Defontaine, 1 Taunt. 131, in which Chief Justice Mansfield presided and construed the words of the statute. In that case he pronounced the rule to be, that unless the labor, business, or work done was within “the ordinary callings” of one or the other of the parties, the statute did not apply; and it was there held that where it appeared that a party selling a horse was an auctioneer and was engaged in the business of selling at public sale, a private sale on Sunday of a horse sent to him to be sold was not illegal. This decision was rendered in the year 1808. In Bloxsome v. Williams, 3 B. & C. side page 232, Bayley, J., delivering the opinion of the court, refers to the case of Drury v. Defontaine, supra, and says: “ I entirely concur in that decision, but I entertain some doubts whether the statute applies at all to a bargain of this description. I incline to think that it applies to manual labor and other work visibly laborious, *443and the keeping open of shops”; and the ruling in the case was, that where one of the parties was in ignorance of the fact-that the other party was “ exercising his ordinary calling on Sunday,” a suit would lie at the instance of the former for breach of warranty in the sale of a horse, notwithstanding the-horse-trader himself had violated the statute. This decision was rendered in 1824. , In the case of Fennell v. Riddler, 5 B. & C. side page 406, the construction which Chief Justice Mansfield had given the statute in the Drury case, supra, was adhered to; but it was held that a horse-dealer could not maintain an action upon a contract for the sale and warranty of a horse made by him upon a Sunday.
In Rex v. Inhabitants of Whitmarsh, 7 B. & C. 596, Bayley, J., in construing the statute, and after quoting the words of the same, says: “Now, if the legislature had intended to embrace every description of persons and every species of business, itWQuld not have been necessary to make an enumeration of several classes of persons exercising particular descriptions of labor or business. It would have been sufficient to say that no person whatever should do any work or business on the Lord’s-day. If the enactment had intended to be general, the legislature would have used general words. It has been argued that-the words, worldly labor, work, or business of their ordinary callings,’ are to be construed disjunctively. The true construction of the clause appears to me to be, that the persons there mentioned shall not on the Lord’s day do or exercise any labor of their ordinary calling, any business of their ordinary calling, or any work of their ordinary calling.” In pursuance of this-construction, that eminent judge held that a contract of hiring made on a Sunday, between a farmer and a laborer for a year,, was valid. This decision was rendered in 1827. In Smith v. Sparrow, 4 Bing, side page 84, a contract entered into with a broker on Sunday for the purchase of nutmegs was held invalid. In that case Parke, J., in his concurring opinion, says: “ I do not think this court was right in the decision of Drury v. Defontaine. I think the construction put upon the statute in that case too narrow. The expression ‘ any worldly labor ’ can not-be confined to a man’s ordinary calling, but applies to any *444business he may carry on, whether in his ordinary calling or not.” This opinion was rendered in 1827. In Scarfe v. Morgan, 4 M. & W. 270, the construction given to the statute by Chief Justice Mansfield was again adhered to. This last decision was made in 1838.
We have not deemed it profitable to pursue our investigation of the decisions of the English .courts further than the above cases. Having shown the identity of the Georgia and English statute, it accomplishes our purpose to have shown the construction which the courts in England gave the statute to the time, approximately, when this court was called on to construe the Georgia statute. The first case in which this court construed the statute is that of Sanders v. Johnson, 29 Ga. 526, decided at the November term, 1859, where it appeared that the note which was sued on in that case was made and signed on Sunday; and, as a remarkable coincidence, on the same Sunday as the one on which this contract purports to have been executed, viz. November 5, 1854. In that case the court was requested to charge the jury that if the- note was made and executed on the Sabbath, the Lord’s day, they should find for the defendant, as notes made and executed on that day are void, unless the same be for works of necessity or charity. This request the court refused, and charged the jury that the defendant -by signing the note admits its consideration to be good, and that the note before them was legal and collectible. In delivering the opinion of the court in that case, Benning, Judge, says: “If the note was given otherwise than in the exercise of any worldly labor, business, or work of the ordinary callings of the parties to it, the note, though made on Sunday, was not within the act of 1762 (Cobb, 853), and therefore was not rendered void by that act. ‘. . It does not appear from the evidence that the note was made by the parties to it in the-exercise of worldly labor, business, or work, of their ordinary callings, and the onus was upon the defendant to show that it was.” The judgment for the amount of the note in favor of the plaintiff was affirmed. The case of Dennis v. Sharman, 31 Ga. 607, while apparently questioning the soundness of the ruling in Sanders v. Johnson, supra, also rules expressly that *445the adjudication of the question then under consideration was not involved in the ruling made in that case (see page 618).
The next case is that of Hill v. Wilker, 41 Ga. 449. The whole tenor of the reasoning of Chief Justice Lochrane in this case and the authorities cited by him are against the validity of Sunday contracts. The decision of the case, however, is based upon the construction given the statute by Benning, Judge, in the case of Sanders v. Johnson, supra, and the opinion concludes with these words: “And as our courts have held all contracts made in the pursuance of the ordinary callings or business on the Lord’s day, or Christian Sabbath, to be void, it follows that this court so adjudges in the case at bar, and the judgment of the court below is, on this ground, reversed.”
In Meriwether v. Smith, 44 Ga. 541, it was ruled that when a contract for labor was entered into on the Sabbath, and the contract was performed afterwards by the laborer, the promisor can not defend by setting forth the illegality of the contract. It is fair to say that in this case the decision was not put upon the construction of the statute. Inasmuch as the facts of the case show that the contract was entered into between the owner of farm lands and a tenant and was for the rent of land, the making of the contract must have been within the ordinary calling of one or both of the parties. In the case of Morgan v. Bailey, 59 Ga. 683, Warner, Chief Justice, quoted the statute and ruled that “The defendant was a farmer, and it was a part of his ordinary business and calling to purchase land and pay for it in order that he might pursue his ordinary business and calling as a farmer ” ; and that, this being so, the note executed as a consideration for the purchase of land was illegal. In the case of Ball v. Powers, 62 Ga. 757, it was held that a negotiable paper, drawn, accepted and delivered on Sunday, is void between the parties; and in the course of the reasoning in his opinion, Bleckley, J.,’ says: “ Sunday is not a day for conducting trade in its due course, and dealing upon that day in negotiable paper in ordinary business, so far from being favored, is a breach of the penal laws.” In the case of Sawyer v. Cargile, 72 Ga. 290, where it was held that the publication of the advertisement of a marshal’s sale for taxes in a newspaper appear*446ing on Sunday was not legal and that no title passed, it was further ruled that “Sunday is dies non juridicus, and service can not be made, or legal notice given on that day, or the business or work of ordinary callings done.” In another case in the 62 Ga. 449, Weldon v. Colquitt, in which the reasoning is strongly pro-sabbatic, Justice Bleckley recognizes the uniform construction placed upon the statute in very clear and explicit terms, in which he declares that in strict law, where a magistrate in disregard of the legal restraints’ appertaining to the Sabbath, and in the absence of any necessity, engaged in the exercise of judicial functions on that day, such officer himself was amenable to the penalties of our code as a violator of the Sabbath, “the holding of courts of inquiry being a part of his ■ordinary calling as a judicial officer.” The same construction ■of the statute is also recognized in the case of Rothschild v. City of Darien, 69 Ga. 503 ; and also in the case of Harrison v. Powers, 76 Ga. 218.
In the case of Calhoun v. Phillips, 87 Ga. 482, it is declared iir broad terms that a contract of sale made on Sunday, with no delivery of the property then or afterwards, is void although the parties intended to waive delivery. In the opinion, Mr. Justice Simmons, in declaring the contract made in that case illegal and void, refers to the statute of this State as it was then •contained in section 4579 of the Code of 1882; and while the general proposition is ruled that because the contract was made on Sunday it was void, an examination as to the terms of the contract shows that it was made in the ordinary callings of the parties. In the case of Hennington v. State, 90 Ga. 399, Chief Justice Bleckley, referring to the statute, says: “The statute can fairly and rationally be treated as a legitimate police regulation, and thus treated, it is a valid law. There is a wide difference between keeping a day holy as a religious observance, and merely forbearing to labor on that day in one’s ordinary vocation or business pursuit.” And in the case of Western Union Telegraph Co. v. Hutcheson, 91 Ga. 252, the same eminent jurist, referring to the case then under consideration says: “There is no good reason to doubt that the prohibition of section 4579 of the Code, upon ordinary Sunday labor, applies no • *447less to telegraph, companies and their employees, than to other persons.” In the case of Keck v. City of Gainesville, 98 Ga. 423, a construction of the statute is given practically the same as that in the case of Sanders v. Johnson, 29 Ga. 526. Chief Justice Simmons, in delivering the opinion, says, the statute above referred to “is ample to protect the public from the cárrying on by any person of the work of his ordinary calling on Sunday, whatever may be his religious belief. It is a police regulation which the State has a right to adopt; and its purpose is not to force people to observe Sunday, in a religious way, or.according to the religious views of any portion of the community, but to require that it be observed as a day of rest and cessation from labor, the legislature doubtless regarding this as necessary to the health and well-being of the people. The legislature could have appointed Monday for this purpose as well as it did Sunday, and the law would have been equally binding.”
We have referred to these decisions of our own court for the purpose of showing that the construction which we give to the statute in the present case has been uniformly recognized from the decision in the case of Sanders v. Johnson, 29 Ga. 526, up to this date; and while these cases, not including that appearing in the 29 Ga., are not express adjudications of the point at issue, they are cited as showing that no construction of our statute contrary to the doctrine of that case has been made. We are aware that there are some English decisions holding to the contrary of those which we have cited. We are also aware of the fact that .in a number of other States similar statutes have been so construed as to render contracts executed on Sunday illegal, depending largely in the latter case on the words of such statutes. But when we find a strong current of decisions by learned judges of the English courts construing the terms of their statute which is exactly similar to ours, and a recognition of such construction uniformly made through a great number of years by this court, without any express contrary ruling, we are bound to accept such construction as the law of the land. In this case it can not be said that a marriage contract is in the exercise of the ordinary business or calling of either of the *448parties thereto; and this being true, we conclude that the execution of an instrument of this character is not rendered illegal by having been made on Sunday. The question of the prohibition of work of any character on the Sabbath day, or the execution of contracts on that day, is entirely within the province of the legislature. But as we have seen, the statute which has stood on our books for more than a century does not render-such contracts illegal in this State; and until the General Assembly shall change its terms or make new provisions regarding the Sabbath day, the work, labor and business prohibited is that done in pursuance of one’s ordinary calling.
On the argument here‘, the case of Sanders v. Johnson, 29 Ga. 526, was asked to be reviewed, and permission granted. For the reasons above given, and after due consideration, we decline to overrule the construction given to our statute in that case, but adhere to the doctrine there announced, as the proper construction to be given the statute. It follows, that the judgment of the court below in excluding the copy contract as evidence for consideration by the jury, on the ground that it was illegal because executed on Sundaj^, was erroneous; and accordingly the same must be Reversed.
AU the Justices conewring.