274 Mo. 170 | Mo. | 1918
This is an action tried in the circuit court of Pike County, whereby it is sought to determine title to a certain tract of land situate in said county. The petition contains also a count in ejectment. Upon a trial below, judgment went for plaintiffs for an undivided one-ninth interest each in the premises in controversy. Prom this judgment, after the usual motion, defendant has appealed.
The agreed common source of title is William Smith, a negro, sometimes called William Yager, who was before .the Civil War a slave. Plaintiffs, Eliza Wiley and Albro Smith, claim to be the children and only heirs of William Smith. The defendant is the grantee by mesne conveyances of certain other children whom! defendant avers to be the only and all of the heirs of said Smith. According to the respective contentions of plaintiffs and defendant, said William Smith,
According to the testimony adduced by plaintiffs, William Smith was owned by one Yager, who resided with his slaves on a farm in Pike County. Near the Yager farm, perhaps adjoining it on the south, resided a man by the name of John South, who owned numerous slaves,- among others a negro woman called Adeline, and who, taking the name of her master, was known as Adeline South. According to the testimony of one Collins South, an old negro some seventy-five years of age, who wa,s himself a slave, and.who likewise belonged to John South, the negress Adeline was married about the year 1850, to said William Smith. There was a ceremony of marriage between the two, performed, according to the latter witness, by a negro preacher by the name of Enoch Jackson. From and after the marriage of Smith to the woman Adeline, these two' lived together for some three years as man and wife in a cabin on the farm of John South, the master of the woman. From the relation thus established there were born to William Smith and Adeline, three children, of whom one is the plaintiff Eliza. The date of the birth of the plaintiff Eliza does not clearly appear (which obscurity likewise attaches to many of the facts testified to by the witness Collins South), but the witness is clear upon the point that Eliza was born either1 prior to or in the year 1853; for in the latter year John South removed with all his slaves, including the woman Adeline, and the child Eliza, to a point in Lincoln County some thirty miles away from his former home. According to the witness Collins South, Smith continued
On the part of defendants it is shown that their title emanates from Julia Gaines, Homer Smith, and others, the children of William Smith, by one Harriet Wheeler, and who claim to he the only heirs of said William Smith.
The testimony adduced by defendants conclusively (in the sense that it is not disputed) shows that in the year 1853'. William Smith went through a ceremonial form of marriage with a negro1 slave woman who belonged to a man named Hedges, and who was called Harriet Wheeler. The fact of this marriage is, as stated, shown conclusively. The family record of William Smith', which was given by Smith to his daughter, who testified in the case and identified this record, shows that this last marriage of Smith to the negress Harriet occurred either on the 15th of January, or the 15th of June, 1853. The writing is blind, and the doubt is due to the difficulty of deciphering: this date. Numerous witnesses also testify to the fact of this marriage of Smith and the woman Harriet. One of these, a son of Harriet’s old master, swears that he was per
Upon a trial of the case below, without a jury, the court found, as stated, that plaintiffs were each entitled to an undivided one-ninth of the land in dispute, and that defendant was entitled to an undivided seven-ninths thereof.
Such further facts, as we may find it necessary to state, in order to make clear the view which we take of this case, will he found in our opinion.
I. This is a law case tried by the court sitting as a jury, without' any declarations of law asked, given, or refused, upon either side. In such case it is settled law that the judgment of the trial court must be upheld upon appeal, if there is any substantial evidence to support it. [In re Lankford Estate, 272 Mo. 1; Woods v. Johnson, 2164 Mo. l. c. 293; Hatton v. St. Louis, 264 Mo. 634.] The case is one which turns wholly upon the facts, for the law is settled by an express statute. This statute was passed in 1865, has been on the books ever since and reads as follows:
^Slaves'
“For the purposes of this article, the children of all parents who were slaves, and were living together in good faith as man and wife at the time of the birth of such children, shall be deemed and taken legitimate children of such parents, and all the children of any one mother, who*176 was a slave at the time of their birth, shall be deemed lawful brothers and sisters, for the purposes of this article.” [Sec..344, R. S. 1909,]
There was evidence sufficient to put in force the rule stated that the slave "William Smith went through a form of ceremonial marriage with Adeline South, the mother of these plaintiffs, about the year 1850'. Thereafter the negro Smith lived with plaintiffs’ mother till 1853, at which time the master of the woman removed with her, the plaintiff Eliza, and his • other slaves, to a point in Lincoln County, some thirty miles away from the master’s former home. While cohabiting in Pike County with the woman Adeline, following the ceremonial marriage, and before the woman was taken away to Lincoln County, by her master, the plaintiff Eliza was born. In 1855, and two years at least (there is some considerable evidence that it was seven or eight years) after Adeline left Pike County, the plaintiff Albro was bom.
The evidence is conclusive that either in January or June, 1853', William Smith went through a form of ceremonial marriage with a slave woman by the name of Harriet Wheeler, who belonged to one Hedges, and who is sometimes called Harriet Hedges. Likewise it is proved conclusively that Smith lived with this woman Harriet in good faith as her husband continuously till his death in 1904, and that there were born of Smith’s cohabitation with the womán Plarriet nine children. There is some testimony to the effect that Smith continued for some years after 1853' to sustain toward the woman Adeline a casual illicit sexual relation, and there is> evidence from which the court might well have found, as it is patent he did find, that the plaintiff Albro, as well as the plaintiff Eliza, is the child of Smith. But we do not think there is any substantial proof that Smith, after 1853, ever lived in good faith as man and wife with the woman Adeline. Such a view is in diametri
It results that the case must be reversed and remanded for a new trial in such wise as is consistent with what we have written herein. Let this be done.