45 La. Ann. 318 | La. | 1893
The opinion of the court was delivered by
The plaintiffs, Charles H. Starns, George L. Starns and Philip Ursory, urge that the two former are the children of Martha E. Starns, and that the said Ursory is the heir of his deceased child, George Ursory, the issue of his marriage with Margaret A. Starns, the daughter of the said M. E. Starns; that Margaret A. Starns died leaving the said minor her sole heir, and the said minor died about the year 1886, leaving the said Ursory her sole heir.
That Lewis left the following children, issue of his marriage with petitioner’s mother: Lavinia A., wife of John P. Hadnot; Luella D., wife of H. G. Goodwin, and Joseph P. and Alfred W. Lewis, and three minor children, issue of his marriage about the year 1880 with Julia Ferrand. The plaintiffs prayed that these parties be cited, and the said heirs of A. C. Lewis be decreed to account to the said com
That the estate of A. O. Lewis be also decreed to account to the said community for the cattle, at the value of $1200, with 5 per cent, per annum interest from the time they were sold or disposed of by A. O. Lewis, for the work stock, mares and colts, at $700, with like interest, and that said community be partitioned, for trial by jury, and for general relief.
Defendants first pleaded the general issue. They then alleged that the property claimed to be community, and sought to be partitioned, was and is the separate property of the late A. O. Lewis, and that it was not and is not community property, as the plaintiffs have declared. That the said Alfred O. Lewis and Widow Martha E. Starns, their father and mother, just previous to their marriage, made and entered into a marriage contract, by and in which it was stipulated and contracted that no community of acquets and gains should exist between the contracting parties or future spouses, and that their property should be separate. That said contract was executed before Rosemond Le Gras, then a notary public in and for the parish of Rapides, on or about the 29th day of November, 1856, and that it was forthwith deposited by the said notary in the recorder’s office of Rapides parish, was duly recorded, and there remained, until it, together with the court house of that parish and all the records of said parish, were destroyed by fire in 1864. That the marriage contract was sought to be re-established in 1868, and was so re-established by a decree or judgment of the District Oourt of Rapides, in the year 1870, under the law providing for the reestablishment of the lost records by the said fire in 1864.
That their mother’died in the year 1876, leaving no property. That before her death, and in view of that event, she divided in kind all the property she owned and possessed, between her two sets of children and heirs, and that the plaintiffs then received and accepted their full part and share of all their mother’s property, and that they never claimed or pretended to claim or set up any other or further rights to any other property than that so divided by their mother and so accepted and received by them until after the death
Before the trial in the lower court the parties entered into an agreement to the effect that “ they shall at this trial try only the issue whether there was an ante-nuptial contract between Alfred C. Lewis and Martha E. Starns regulating the community of their marriage, and that all other issues in the case are to be held in abeyance.”
The special issue so submitted to the jury by consent, was by a division of nine to three in that body, determined in favor of the defendants, whereupon the District Court rendered a judgment that ‘ ‘ there is and was no community of acquets and gains existing between the late Martha E. and Alfred O. Lewis, and that plaintiffs’ demand be rejected at their costs.”
It was admitted between the parties that A. C. Lewis and Martha E. Starns were married on the 30th of November, 1856; that Mrs. Lewis died on the 22d of December, 1876, and that Mr. Lewis died on the 16th of December, 1888; also that the notary who passed the act did not make or keep a copy of the marriage contract or any of his acts, and that there is no copy of said marriage contract in existence.
In support of the position that there was a marriage contract between their father and mother, stipulating there should be no community and their property should be kept separate, defendants offered first the testimony of Rosemond Le Gras, the notary public, who, it is alleged, passed the marriage contract, taken in New Orleans under commission. Le Gras testified as follows: “ I was a resident of Alexandria, La., during the year 1856; I had resided there continually from 1830 to 1863. During that period I was mayor of the town, justice of the peace and notary public. I occupied those positions at different times and held that office for several years. I was intimately acquainted with Alfred C. Lewis; was also acquainted with Mrs. Widow Martha E. Starns, both of Rapides parish; knew them in 1856-and before that year, and I know that they did become husband and wife in the year 1856. They entered into a marriage contract before me as a notary public. Both parties were present and signed the marriage contract. It was witnessed and regularly drawn. I do not remember the witnesses
On cross-examination by the plaintiffs, he stated: “I left the-parish of Rapides in the month of May, 1863, and have resided in Algiers, La., since that period, excepting two years that I resided near Amite, La. I knew it (the fact that A. C. Lewis and Martha E. Starns were married) from general report, from Mr. Lewis telling me that they were married and from both telling me at the time that the marriage contract was executed that they were about to be-married, and I never heard their marriage disputed. I became acquainted with the widow Starns some time before the marriage contract was executed between her and Mr. Lewis, but how long before that time I do not exactly remember. Wm. B. Hyman was the lawyer for the widow Starns some time before the marriage with A. O. Lewis and she used to come to his office to consult him; in that way I became acquainted with her. My office was at the corner' of Second street and Bayou Robert road, in Alexandria, La., and Mr. Hyman had his office adjoining mine and directly in the rear. The entrance to his office was directly through mine. Nor can I remember now the exact date of her marriage with Lewis. It was a short time after the presidential election of 1856, and I think in the month of November, as well as I can now remember. Of course it (the marriage contract) was not signed after their marriage, but prior thereto. If they had told me that they were married, I should have told them it was useless to make a- marriage contract. They both told me at that time that they were not married, but were about to be married. I have thought of all the circumstances attending the matter and I .feel confident it is impossible for me to have been mistaken when I said the marriage contract was-
We have transcribed this testimony iu full, for the reason that the case turns principally upon it, and that its reception by the court was made the subject pf a bill by the plaintiff, the exceptions raised to this testimony being leveled at Le Gras’ answers to the fourth and fifth interrogatories, stating “ the marriage contract was before-marriage,” on the ground that the said answers show they are-impressions and not facts within the knowledge of witness; also upon the ground that the date of said contract is a part of the contents of said contract, and its contents can only be proved by knowlege derived from having read the instrument, from a knowledge of its contents, and on the- further ground that no fact contained in the contract, nor any future event, can be proved by the-declarations of the parties at the time made, or before the contract was executed.
We see no force in the objections urged. It would be difficult to-find testimony more direct and positive, and more clearly resting on a witness’ own knowledge. He stated that the parties went to - gether to his office for the purpose of having the act passed; that being so together they both told him they were about to be married,, and they wanted their propei’ty to be separate and no community
It will thus be seen that Le Gras remembers, as an independent, •substantive fact, that the same statement which they had made to him prior to the passage of the act, that they were about to be married, was embodied in the act itself as one of its recitals, with the further recital that the act was passed in view of that contemplated marriage. The proof of the fact that the marriage was not yet consummated does not, as plaintiffs suppose, rest upon the antecedent •declarations of Mrs. Starns and Lewis to Le Gras, but upon the re•citals of the act itself, to the verity of which the heirs of each and both are bound. C. O. 2236.
It is true that Le Gras refers to the declarations of the parties just ■prior to the act in connection with other facts, but he does so simply by way of explanation and as assigning reasons why his memory .should have been so retentive as to this particular act.
Mrs. Goodwin, the oldest, and Mrs. Hadnot, the second, of Lewis’ children, and John P. Hadnot, his son-in-law, were placed upon the .stand by defendants to corroborate Le Gras, and each testified to having heard Mrs. Starns say several times that there was a marriage contract, and that she was married under a marriage contract.
The testimony was excepted to so far as the daughters were concerned, on the ground that the declarations of the wife during marriage are not admissible in a suit of the heirs of the husband against her heirs by a former marriage, and so far as the son-in-law was •concerned, on the ground that his wife’s interest was inseparable from that of her co-heirs. The court overruled the exceptions as to the daughters, and admitted Hadnot’s testimony, but solely as evidence .on behalf of the co-heirs of the wife.
The plaintiffs reserved a bill.
The present suit not being one between Mrs. Lewis and her husband, but a litigation involving a settlement of the rights inter se of vtwo sets of children, all of them children of the same mother, and
In permitting the testimony of Hadnot to be introduced for the purpose it was offered, and in the restricted manner it was, there was no error.
In Boisse vs. Dickson, 31 An. 750, this court held that “ the husband of one of the co-heirs can testify for or against a co-heir, or for or against a creditor of a co-heir, touching the latter’s interest in the succession.”
Defendants offered in evidence a certified copy of the record and the judgment therein in a suit of Martha E. Starns vs. Alfred O. Lewis, her husband, No. 1426 of the District Court for the parish of Rapides, reviving the marriage contract between herself and her ' said husband, and certificate showing that said judgment was recorded in the mortgage book of Rapides parish, on the 17th March, 1871, as rem ipsam, and for the purpose of proving that it stood on the public records as a contract between the parties during their lifetime until it was annulled in 1891.
Defendant objected to the same on the ground “that the judgment rendered was declared an absolute nullity by the Supreme Court, and that as rem ipsam it is inadmissible because it is. wholly irrelevant to the issues in this case; also that the declarations of the wife made in favor of the husband during the marriage are inadmissible against her or her heirs in a contest between the heirs of the wife and the' heirs of the husband, and that the allegations of the petition in that suit are the allegations of Alfred C. Lewis, and not of Mrs. Lewis, which plaintiff offered to prove by the deposition of M. Ryan.” The court overruled the objections and the defendant excepted.
It does not follow as the result of a decree pronouncing a judgment to be an absolute nullity, that the pleadings, record and judgment should thereafter become absolutely worthless for all purposes as evidence. That an act bad for one purpose may be good for another has been frequently decided. A familiar illustration of this is found in the matter of prescription which a judicial demand interrupts, although instituted in a court without jurisdiction and dismissed on that ground. Assuming it to be true, as charged in plaintiffs’ exception, that the declarations of a wife made in favor of
It would appear that the district judge was not willing to stop the trial of the case and enter into an examination of that side issue, and no exception was taken to this exercise by him of his discretion in the manner of conducting cases before him. Plaintiffs were subsequently given an opportunity to introduce testimony in support of their contention on that subject. We do not think the record was irrelevant. What effectwas to be given to it, was a different matter —one which the court could not prejudge. The annulling of the judgment for want of jurisdiction in the Rapides court, did not undo the effect of the petition if it contained admissions or took positions inconsistent with those now advanced by the plaintiffs. As we have said, on its face, it is a petition in the name of the mother of all these parties, in which she affirmatively states the prior existence of the marriage contract and its destruction by fire, and makes its reestablishment or revival her cause of action in the case. Independently of this, the record was relevant in support of the position taken by the defendants, that plaintiff’s demand was stale, and that they purposely delayed questioning the existence of the marriage contract for years after their mother’s death, and until after that of their stepfather, Lewis.
But whilst the record was legally admitted in evidence, it may be well to say that the decision in this case has not been made to rest upon anything in it. Defendants introduced other testitimony to which we do not deem it necessary to specially refer. Plaintiffs rely mainly upon the testimony of Judge Ryan, that of
G. L. Starns, one of the plaintiffs, testified that his mother had never told him anything about a marriage contract between herself and Mr. ■ Lewis, and he had never heard her mention it to any one. Thomas Connor, one of the brothers of Mrs. Lewis (Starns), testified that his sister did not go to Alexandria at any time with Mr. Lewis before her marriage, that she did not go there with any one during or from the first visit of Mr. A. C. Lewis before her marriage, nor by herself during that period; that his sister was married at their mother’s house and he was at the wedding; that there was no marriage contract passed between them before the wedding ; that he never heard any marriage contract talked about or mentioned during any time of the ¿carriage in the family; that he saw his sister often after her marriage; saw her once or twice a year, and visited her at her home in Grant parish; that she visited her mother after her marriage, the first visit after her marriage being one of about seven weeks; that was about twelve months after her marriage; that he did not recollect how often she visited her mother after that; that he accompanied her on those trips, coming and going; that she was intimate with him as brother and sister; that she never mentioned to him at any time during those trips, or while at her mother’s, that there was a marriage contract between herself and A. C. Lewis; she never mentioned it in his presence. That his sister’s slaves and property were taken to Mr. Lewis’ home; that the slaves and stock were at work on his farm every time he went to Mr. Lewis’; that he supposed Mr. Lewis worked them, as they were on his farm and he having charge of them at the time; that he was born in September, 1840; that he had gone several times with his sister to Alexandria before her marriage with Mr. Lewis; sometimes she would go there to purchase goods; that he was present at the wedding of his sister and Mr. Lewis; that he stated there was no marriage contract, because he was present at the wedding and that was the reason he so stated; that if there had been a marriage contract, of course he would have seen cer
The testimony of George Cannon was substantially the same as that of his brother, but less positive as to his sister not having gone to Alexandria prior to her marriage and after her engagement to Mr. Lewis — on which point he said: “ She did not go there with Mr. Lewis during any time that he was addressing her that he knew of or remembered ; she did not go there with any one else that he knew of during that time. When she went to Alexandria the witness sometimes went with her, and when he did not go, his brother went; he never knew of her going alone.” He made the same statement which his brother did as to his sister having never mentioned to himself or in the family that there was a marriage contract between herself and Mr. Lewis. He declared there was no marriage contract executed between his sister and Mr. Lewis at the time of their marriage — that there was none made at his mother’s at any time before the marriage, and he did not know of any made anywhere. Referring to this statement in the latter part of his testimony he said that he stated there was no marriage contract because he saw nothing performed at the time of the marriage except the ceremony by the minister; that a marriage contract is done before a notary public and there was no notary public there at the time of the marriage; that his reason for saying there was no marriage contract was because there was no notary public and no act passed at the time of the wedding that he saw — those were his reasons for saying so; that he was eighteen years old, and he thought he would have known a marriage contract if he had seen one. He subsequently added: “ The factthat his sister did not go to Alexandria was another reason why he stated there was no marriage contract.” This witness was the oldest brother of Mrs. Lewis. The sister, Mrs. Gregory, merely stated that she was at the wedding, and that Mrs. Starns never told her anything about a marriage contract.
Before stating our own conclusions in the case, we are called upon to notice the bill of exceptions taken by the plaintiff to the judge’s
Plaintiffs’ ground of exception was “that the jury are the exclusive judges of the facts and the weight of testimony, and the court is not permitted to comment on the evidence.”
We can readily imagine a case in which this charge as to affirmative and negative testimony, with the broad statement made by the
This court has held that although the judge may have charged improperly, yet if the evidence would not have authorized a different verdict, it will be upheld. Staekpole vs. Wickham, 7 An. 658; N. O. Opelousas R. R. Co. vs. Lagarde, 10 An. 150; Hennen’s Digest, p. 98, No. 27.
We do not see how, in the case at bar, the jury could have reached any other conclusion than that which it did.
Some stress is laid by the plaintiffs upon an uncertainty as to the precise day on which the marriage contract was executed. It is charged that there is a variance between that alleged and that sworn to. Defendants’ claim is that the contract was an ante-nuptial contract, passed on or about the 29th November, 1856. Time is certainly of the essence of a marriage contract, but only to the extent of requiring that the execution of the act should antedate the celebration of the marriage. That fact being established, it is immaterial whether the contract was passed on one day rather than another.
Plaintiffs urge with great earnestness that the employment by Lewis of the wife’s slaves, horses and mules on his own plantation in the making of crops is inconsistent with the idea of there being no community between the spouses. If in point of fact the marriage contract was executed, as we hold it was, the subsequent action of the parties did not alter the situation as to community rights. Lewis’ succession may have come under some obligation from the facts stated, but if such there be, it is of an entirely different character from that asserted in plaintiffs’ petition.
In rendering judgment in the case the District Oourt rejected plaintiffs’ demand; the demand so rejected, under the agreement already referred to, between. the parties, must be held, construed and limited to the demand as to the special issue submitted to the jury, and must apply to none other.
For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the District Court, with the construction and limitation herein placed upon it, bé and the same is hereby affirmed, and the cause remanded to the District Court for further proceedings, at appellants’ costs.