Locklayer v. Locklayer

139 Ala. 354 | Ala. | 1903

TYSON, J.

The evidence satisfactorily supports the finding of the trial judge of the fact that petitioner’s reputed husband was a negro. Their living together as husband and wife upon the assumption of a valid marriage, although performed according to forms of law, was clearly illegal and adulterous. In short, the attempted intermarriage was abortive and void, conferring no rights upon either by virtue of such relation; being in violation of the policy declared, by section 504(5 of the Code.

All this, we understand, is conceded by appellant’s counsel, but it is insisted that she was deceived by her reputed husband into entering into the contract of marriage and the consummation of it Iry his appearance coupled with his representations to her that he was a white man. In other words, that she acted in good faith, was Ills innocent and unsuspecting victim, and, therefore, -was not guilty of a violation of the statute. Whether this contention be sound or unsound, it is not necessary to be decided. There was evidence from which the trial judge could have found that she was not deceived, but, as a matter of fact, knew that he was a negro.- Ilis former wife was a negress and this the petitioner knew; and the ceremony between her and him, when the attempted marriage was entered into was performed by a negro. It is true this evidence was objected to, but those objections are not insisted on here. But if they were they would he unavailing. The evidence was clearly competent for the purpose of showing her want of good faith, which seems to have been relied upon by her as sustaining her right to the property in the event the fact be ascertained by the court that her reputed husband was a negro.

Her adversary ivas allowed to introduce in evidence against lier objections that lier reputed husband was rec.ognized and treated by Oscar Locklayer, who is shown to have been a negro, and his wife, who was a mulatto, as their child, and that her reputed husband and his reputed father and mother were known as negroes.

There was no error in either of the rulings. — Weatherford v. Weatherford., 20 Ala. 548; Tucker v. The State, 24 Ala. 77; White v. Strother, 11 Ala. 720. Nor Avas any error committed in allotviug witness Goodlet to testify to the statement of the petitioner’s reputed husband, made to the court, in 1808, Avhen summoned as a juror. He being dead, any declaration made by him, as to his race Avas competent. — Rogers v. DeBardeleben, 97 Ala. 154;, and cases there cited; 22 Amer. & Eng. Ency. Law, (2d ed.), 644. Besides, it Avas clearly in rebuttal of declarations, offered in evidence by petitioner, made by him to the effect that he Avas not a negro. The affidavit offered in evidence was not self-proving, and in the absence of proof of its signing by the affiant the exclusion Avas proper.

Other exceptions Avere reserved during the trial to the rulings of the court on the admission and exclusion of evidence and are assigned as error, but are not insisted on. The judgment must be affirmed.

Affirmed..