48 Fla. 76 | Fla. | 1904
This was an action of ejectment instituted by plaintiffs in error against defendant in error in the Circuit Court for Columbia county. The defendant pleaded not guilty, and the cause was referred by consent to a practicing attorney as referee, who found for defendant and entered judgment accordingly, from which this writ of error was taken by the plaintiffs.
The errors assigned are that the referee erred in overruling the motion for a new trial and in entering judgment for defendant.
From the evidence it appears that one Richard Johnson became the owner in fee simple of the property in controversy in 1.865, and remained in possesion thereof, residing thereon for several years thereafter. Subsequently he moved to Jacksonville where he died. The exact date of his death does not appear, but it was prior to 1899. He had been a slave, and many years before the civil war he was married according to the customs of slavery, to Sarah, who was also a slave. Sarah died about the time the civil war began. Three children were the issue of this slave marriage, Richard Johnson, the plaintiff, Liddy, the mother of Essie Johnson, the plaintiff, now deceased, and Amerson.
The question presented is whether the plaintiffs succeed to the property of the deceased by inheritance. It was held in the case of Adams v. Sneed, 41 Fla. 151, 25 South. Rep. 893, and other Florida cases cited therein, that in the absence of enabling statutes the issue of customary slave marriages which terminated before or were never ratified by the parties thereto after emancipation, possess no inheritable blood under our statutes of descent.,. This decision was rendered at the January term, 1899. The legislature that met the same year, in order to remedy this defect in the law, passed Chapter 4749, entitled “An act to legalize the marriage and offspring of persons of African descent,” which reads as follows: “Section 1. That in all cases where persons of African blood have, prior to January first, A. D. 1866, cohabited and lived together as husband and wife, and have, prior to said date, recognized each other before the world, and were recognized as husband and wife, they shall in law be deemed, taken and held to have been lawful husband and wife so long as such relationship existed between them, as fully and effectually for all purposes as if the marriage between them had been solemnized by a proper officer thereto- lawfully authorized; and all children, the issue of any such marriage, are hereby legitimized and’ made heirs of their parents and of their blood relatives generally in the ascending, descending and collateral lines of inheritance according to the general laws of descent in force in this State, as fuliy as if they had been born in legally recognized wedlock.
Sec. 2. All laws or parts of laws in conflict with the provisions of this act are hereby repealed, and this act shall take effect immediately upon its passage and approval.” .
The obvious purpose and object of this statute is to make valid customary slave marriages, and to render the
It may be contended, however, that the statute can not be applied in this case where the ancestor died prior to its enactment, for the reason that the property escheated to the State upon the death of the ancestor, and under Art. XII, constitution of 1885, which provides that “the school fund shall be derived from the following sources * * * the proceeds of escheated property or forfeitures; * * * the principal of the State school fund shall remain sacred and inviolate,” the • legislature can not by a retroactive statute divest the right of the State school fund to the proceeds of the property. The provisions quoted were considered in Adams v. Sneed, supra, where it was held that section 1829, Rev. Stats, of 1892, contravened them and was, therefore, invalid. But the statute in the present"case differs essentially from the one considered in that case. It does not attempt to grant or waive the right of the State in property which would properly escheat, but infuses capacity to inherit in those who would, under the law as it always existed in this
It results from these views that the plaintiffs are the legal heirs of Richard Johnson, deceased, and as the referee held otherwise, the judgment will be reversed and a new trial granted at the cost of defendant in error.
Shackleford and Whitfield, JJ., concur.
Taylor, C. J., and Hocker and Cockrell, JJ., concur in the opinion.