Haden v. Ivey

PETERS, C. J. The reasons which support the legality of the marriage in Stikes, adm’r, v. Swanson et al. (44 Ala. 633), apply equally to the marriage insisted on in this case. Here, matrimonial cohabitation of John J. Ivey and Tempy Ivey is shown, by the preponderance of the evidence, for near forty years. And this status of these parties is also affirmed by all the circumstances of the case. John J. Ivey was a freedman, and Tempy Ivey lived with him as his wife, in this State, for many years before his death, openly and publicly, without offence to the law, or the morals of the community. The reasons for such an acquiescence tend strongly to show the legality of the cohabitation. Mrs. Ivey’s testimony shows that there was an actual marriage, possibly consummated in the State of South Carolina. Certainly no one could have a better knowledge of this fact than she. Such marriages in that State were permitted to be loosely entered into ; and' where it is not shown that there is a statute governing their celebration, it will be presumed that they are sufficient, if they have been contracted as at common law. The common law is presumed to prevail in those States of a common origin with our own, unless the contrary is shown. 1 Brick. Dig. p. 349, § 9, and cases there cited. Whether Mrs. Ivey is the child of a white woman and a colored man, or of a colored woman and a white man, may admit of some doubt. If she was the former, her status could not be changed by a sale which treated her as a slave. The sale did not affect her right to liberty. She was still free notwithstanding the sale. Ivey so treated her. He did not dispose of her in his will; but he sought to protect her and provide for her, with unusual care. They were both persons of mixed blood, and in their unhappy condition they contracted aud consummated such a marriage as the law then permitted. It was clearly such a marriage as would have been sufficient at common law. It was not wholly void. Stikes, [385] adm’r, v. Swanson et al. (44 Ala. 633), and cases there cited. The preponderance of the proofs in this case is obviously in favor of a marriage at common law. This was enough to rescue the connection between persons occupying the status of freedmen and freedwomen, before emancipation, from the illegality of mere concubinage. And the public policy of the State since emancipation has been to give such marriages, as between the parties themselves, full validity. Ord. No. 23 of Conv. 1867; 44 Ala. 633, supra. 3. Then, the husband might permit the wife to.use her own earnings, or gifts from her friends, for her own purposes, and invest the same in land. Rivers v. Carlton et al., at June term, 1873; 2 Kent, 163; 3 P. Wms. 334; 31 Ala. 266. The evidence is free from rational doubt, that the money to pay for the land entered by Downing, and about which this controversy has arisen, was furnished by Mrs. Ivey, or by her husband and herself for her, and the land was entered by Downing in his own name for her use. In equity, this vested the title in her ; and such a title a court of chancery will protect against a claim set up by the husband, or by those claiming iinder him, who do not claim as his creditors. 2 Story’s Eq. §§ 1201 et seq.; Lee v. Browder, at the present term. From this it appears, that the title to the land in controversy never belonged to John J. Ivey, deceased, and consequently could not be sold by the representative of his estate. Only such title as was vested in the deceased could be sold by his administrator, and such title only did the purchaser at such sale acquire as was vested in the decedent. This is Haden’s title, and as against Mrs. Ivey it is worthless. It is a judicial sale, and the purchaser must look to the title that he buys. 9 Ala. 297. 4. The demurrer was withdrawn. The assignment upon it is without support of the record. The plea of the statute of limitations is not sustained. Neither the deceased, nor his administrator, held the land in controversy under any color of right whatever. If the administrator occupied the lands at all, he did so as a trespasser, and he could not in such way acquire a title for the deceased, or any other person, save himself; and he sets up no title in himself. The learned chancellor’s view of the facts and the law, as shown by his decree, was correct. The judgment of the court below is, therefore, affirmed, with costs.