143 Ala. 325 | Ala. | 1904
The plaintiff, Jeff Johnson, bases his right to recover the land in question upon the theory that he is the brother and heir-at-law of Mose Johnson, deceased, who owned and was in possession of the land at the time of his death.
The undisputed evidence was that Jeff and Mose Johnson had the same father, but different mothers; that Mose was born before the war, and his parents were slaves, and his mother died before the war. The father then, during slavery, took up with the mother of Jeff Johnson and continued to live with her for years after the war, and until her death, about fifteen years ago; that Jeff Johnson, the plaintiff, was 83 years old.
The parents of Jeff Johnson, being slaves and having started a cohabitation before their freedom, such a cohabitation could not have legitimatized their offspring, upon the theory of a common law marriage, but, as they continued to live 'together as man and wife up to and after September 29, 1865, the legal relation of man and wife attached with all of its duties, obligations and rights; and, as a matter of course, Jeff Johnson was their legitimate child' and capable of inheriting, both from the father and mother. — Washington v. Washington, 69 Ala. 281.
Mose Johnson, however, was born a slave and his mother died before the war, and he cannot in legal contemplation be considered the brother of Jeff, although they had the same father. Born of parents who were incapable of contracting a marriage, and the mother having died before the war. subsequent laws and events did not give Mose the right to inherit from the father. He was in the eye of the law a bastard. — Malinda v. Gardner, 24 Ala. 719; Smith v. State, 9 Ala. 996.
Suppose the father had owned property at the time of his death, can there be the slightest doubt that Jeff would have inherited it all, to the exclusion of Mose? Then it stands to reason that, if Mose could not inherit from the father, Jeff cannot inherit from Mose.
Here we have brothers in flesih and blood, but not in law. A sad condition, largely the result of the evolu
Our Creator designed rights and blessings to some that were not to be enjoyed by others, even children of the same parent or parents: Cast out this bond-woman and her son “For in Isaac shall thy seed be called. And Hagar and her son Ishmael were sent away and wandered in the wilderness of Beersheba. * * * For the children being not yet born,” it was said to her, “The elder shall serve the younger, Jacob have I loved, but Esau have I hated.”
The deeds offered simply purported to establish title in Mose Johnson, and, since the plaintiff was not entitled to the land as his heir, there was no error in sustaining the objection to same. The trial court properly gave the affirmative charge for the defendant.
Affirmed.
To be reported.
