Erwin v. . Bailey

Fubches, J.: The land in controversy is admitted to have belonged to Caesar Swinton at the time of his death and that it descended to his heirs at law. The defendant Bailey is admitted to be an heir of Caesar. It is also admitted that the other defendants, children of Regina, another daughter of Caesar, who married Jerry Richardson, are heirs of Caesar. But they deny that the plaintiff Caroline Erwin is a child and heir of Caesar. It appeared from the evidence that Caesar and Catherine were slaves, the property. of Frank Johnston, *633 before their emancipation in 1865 ; that said Johnston was a citizen of South Carolina and an owner of a summer residence at Plat Rock, Henderson County, N. C.; that Csesar and Catherine lived together as man and wife after the manner of slaves, and that the plaintiff Caroline Erwin was born during the slavery of Csesar and Catherine and while they lived together as man and wife; that Csesar and Catherine moved to North Carolina after they obtained their freedom, and continued to live together as man and wife, until the death of Csesar about 1868, and that Catherine has also died, since the death of Csesar. The plaintiff during the trial offered two depositions in evidence for the purpose of sustaining her contention. The depositions were objected to by defendants upon the ground that the notices, upon which the depositions were taken, did not state the title of the case correctly. But it appeared that defendants were present at the taking of the depositions, and cross examined the witnesses. The court overruled these exceptions and defendants excepted. • The exceptions cannot be sustained. If there was such error as is alleged by defendants, it was waived by their cross examination. They suffered no injury by this error, if it existed, and cannot be heard now to complain. The defendants contended that Csesar was not the father of the plaintiff Caroline Erwin, and to sustain this contention, offered evidence tending to show that, Catherine, her mother, was the maid of Mrs. Johnston and came with her to Plat Rock about the first of May, and remained until about the last of November, while-Csesar was left'on the rice plantation in South Carolina; and that from the time of the birth of Caroline she *634 must have been begotten during the time Catherine was at Flat Rock:, and that she was born about a month after she came to Flat Rock. It was also in evidence on the part of defendants that Caesar complained that Catherine stayed too much of her time in the mountains of North Carolina and asked his master to allow him to take another wife; that the master granted this permission and he took another wife, but when Catherine came back to South Carolina, Caesar left his new wife and continued to live with Catherine as he had formerly done; and they continued to live together as man and wife until Caesar’s death. But it appeared that plaintiff was not begotten during the time Caesar was living with the other woman as his wife. This evidence was objected to and excluded, and defendants excepted. The defendants proposed to prove that there was a general reputation that plaintiff was not the child of Caesar. This evidence was objected to and ruled out, and defendants excepted. We do not think there was any error in the Court’s sustaining plaintiff’s objections, and in overruling the exceptions of defendants to this evidence. The case of Woodward v. Blue, 107 N. C., 407, comes nearer sustaining defendant’s. exceptions than any case called to our attention. And that case does not do so, as we think. The defendants then offered to prove that Caesar and Catherine had frequent quarrels about Caroline, in which Caesar alleged that she was not his child. This evidence was objected to 'and excluded, and defendants excepted. It seems to us that this exception is sustained by Woodward v. Blue, supra, and this evidence should have been' admitted. *635 Caesar and Catherine having lived together as man and wife while they were slaves, and having continued to live together in this relation until the death of Csesar, about' 1868 this made them man and wife under our statute of 1866, whether they ever went before the Clerk and had a record made of this relation, or not. State v. Whitford, 86 N. C., 636. And children born during such cohabitation are presumed to be legitimate, and entitled to the benefit of the law of inheritance. But this presumption of legitimacy may be rebutted, in the case of children of former slaves who sustained the relation of man and wife, just as it may be as to children born during the existence of other legal marriages. Woodward v. Blue, supra, and authorities there cited. This being so, we are of the opinion that the evidence tending to show the non-access of Csesar, at the time Caroline must have been begotten, and the evidence of the quarrels that Csesar and Catherine had about the illegitimacy of Caroline, (improperly excluded) niakes a case that should have gone to the jury. It was not a case where the Court could instruct the jury “that if they believed the evidence they should find for the plaintiff. ” Eor the error in ruling out the testimony, as pointed out above, and the error committed in charging the jury that if they believed the evidence they should find for the plaintiff, there must be a new trial. New trial.