Mebane v. Capehart.

Fueches, J. (after stating the facts). This is a proceeding to partition land among the heirs-at-law of Moses Hog-gard. It is admitted that the plaintiffs are heirs of the said Moses, but they deny that the defendant Henrietta Cape-hart is the child and heir-at-law of the said Moses. The said Moses was a slave, and had a woman named Zylphia, who was also a slave, for his wife. After their emancipation they were married under the provisions of the act of 1866. The plaintiffs and the defendant were all children of Zylphia, and were all born during the time Moses claimed Zylphia as his wife. But the plaintiffs allege that Moses was hired out in Martin County, some thirty miles from where Zylphia lived, the year before the defendant was born in February, and had not been home during the year preceding her birth, and was not her father, but a colored man named Ben Morris was. For the purpose of proving that Moses was not the defendant’s father, the plaintiffs offered evidence to prove *50 that Moses was hired out as stated above; and in addition to this evidence they offered to' show that when Moses came home at Christmas, before the defendant was born, he found Zyl-phia heavy with child, and that he left her, and they did not live together as husband and wife fox two or three years. But they “made up” their troubles, and again lived together as man and wife, and were so living when they were emancipated. The plaintiffs also offered evidence to prove that Moses and Zylphia quarreled about the paternity of the de-defendant, in which Moses alleged that he was not the father of the defendant, and Zylphia admitted that he was not, but stated that Ben Morris was her father. The plaintiffs also proposed to -show by evidence that Ben Morris was a frequent visitor of Zylphia during the absence of Moses, and made presents to the defendant in recognition of his paternity, as the plaintiffs allege. But all this evidence was objected to by the defendants, and excluded by the Court, and in this there was error. It seems to us that the cases of Erwin v. Bailey, 123 N. C., 628, and Woodard v. Blue, 107 N. C., 407, fully sustain our ruling, and show that this evidence excluded by the Court should have been admitted; and the whole matters involved in these exceptions have been so fully discussed in these cases that we do not feel called upon to repeat the argument in this case. There was error in excluding this evidence, for which the plaintiffs are entitled to a new trial.