7 Mart. (N.S.) 548 | La. | 1829
delivered the opinion of the court This is an action by a mother against her daughter. The petitioner claims a slave and five children, which she alleges she purchased in the year 1812, and possessed them for a longtime after: that the defendant has taken them into possession and refuses to deliver up. r
The defendant pleads the general issue; avers that she has a good title to the property sued for, that the slaves were purchased in
The cause was submitted to a jury in the court of the first instance, who found for the . - . , , defendant; judgment or non-suit was rendered against the plaintiff, after overruling a motion for a new trial, and she appealed.
The plaintiff appears to have been married three times. After living one or two years with her first husband, Sims, a voluntary separation took' place between them, and he removed from that part of the country in which they had resided. Subsequent to this removal the defendant was born, the alleged fruit of an illegitimate connexion of the plaintiff with one Laurens. They lived together and cohabited until ten years had elapsed from the time Sims was heard of, when they were married. This marriage was preceded by a contract, in which among many other stipulations, it is stated, that the slaves which form the object of this suit should be secured to the petitioner; after which follows that clause in the contract under which the defendant sets up title to them.
On the trial below an objection was made to reading in evidence the copy offered of the contract of marriage, in which the clause just set out is found. It appears from testimony taken on this objection, that a very irregular practice has prevailed in the parish of St. Tammany of recording all original acts in a book of record, and after recording them to hand back the originals to the parties. The witnesses mentioned in the copy were called into court* and they deposed, that they had attested a con. tract of marriage between the plaintiff and Laurens which was passed, or acknowledged before the parish judge. Notice was given to the plaintiff to produce the instrument. The defendant’s husband swore that the contract was not in his possession nor in that of his
We think that under the circumstances of the case the court below did not err in admitting the copy in evidence. The book, in which jhe original had been recorded being produced in court, it was not the copy of a copy, but the copy of the original that was offered. The instrument never had been in possession of the defendant. She appears to have taken all means in her power to procure it. The proof of loss which will authorise the introduction of inferior evidence must depend on the particular circumstance of each case.
The next question is in relation to the validity of the act. The appellant contends that
The only objection which we conceive can be fairly made to this not being a public act, is the deviation from the ordinary form of commencing instruments of that description. But this objection is removed by the conclusion, in which it is stated the act was made and executed before the parish judge. This declaration at the close of the instrument is entitled to as much weight, and furnishes as strong ev* idenceofits being executed before the notary, as if the same allegations were contained in several other parts of it.
But the allegations of the plaintiff go farther
If the defendant was capable of taking from the parties, we see nothing illegal in that clause of the marriage contract by which the slaves in question were secured to the defendant. The title, it is true, was in the mother, but the father, as he styles himself, also settled property at the same time on the defendant, and he gave to the plaintiff by the contract, $1500 if she survived him.
The plaintiff, however, has resorted to a most extraordinary ground for annulling this Conveyance to her child. She insists that her first husband Sims being alive at the time of the birth of the defendant, the latter was an adulterous bastard, and incapable of taking from her by donation—that the agreement disturbed the legal order ofsuccession.
We are satisfied this ground for annulling the contract cannot avail the plaintiff: for, admitting she was legally married to Sims at the time defendant was born, the consequence would be that the defendant would be the daughter of Sims, not of Laurens, and as such
The evidence establishes the marriage of the parties in 1806. The defendant was born in 1809. Cooper swears they lived together a year and then parted. Lanier testifies, he has not seen Sims since a year after his marriage. Edwards states he saw him in 1808 in New-Orleans, and never saw him on the east side of the lake since he went over there.— Woods swears they separated in 1807, that he saw Sims for a week after and never saw him since. Lanier says the plaintiff was in New-Orleans in 1807.
This is all the evidence. It creates a presumption of absence and non access: but that
Now that physical impossibility can only be shewn, by proving the residence of the hus* band and wife to be so remote from each other that access was impossible. The proof here wholly fails in establishing it. The evidence of the husband’s residence is only negative. He was not on the east side of the lake. Where the wife was, the proof is silent. How can we tell from the evidence that they did not meet and cohabit.
We have left out of view in coming to this conclusion the fact of the mother and Laurens having declared the defendant to be their child, and of their having treated her as such. It being a perfectly well established principle in cases of thiskind, that a child born during marriage cannot have its condition affected by the declaration of one or both of the spouses.—Toullier, vol. 2, lib, 1, chap. 2, no. 859.
We conclude therefore that the mother has failed to establish that her child was an adulterous bastard, and as such incapable of receiving the donation given to her by the marriage contract. Eyen if she had, we have strong doubts whether such a plea could be received from her, but we do not find it necessary to decide the question.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.