Spears v. Burton

Handy, J., delivered the opinion of the court. This action was brought by the defendant in error, to recover a tract of land lying in Warren county, in the possession of the plaintiff in error. The plaintiff below claimed title to the premises in controversy, as the heir-at-law of his father, Abner P. Burton, deceased, who is alleged to have died seised and possessed of the premises; and the points now presented for our consideration relate to the fact of the father’s possession, and to the question whether the marriage of the plaintiff’s father and mother was valid in law. In the progress of the trial the defendant took exceptions to the admission and exclusion of evidence offered for and against her; and these points will be first considered. First. The plaintiff offered in evidence a plat and certificate of survey made and returned by the deputy county surveyor, under a warrant of re-survey issued in the cause. The defendant objected to its introduction, on the ground that the warrant directed certain lots of land to be surveyed, and that the plat and certificate offered did not appear to be of the same land, and did not identify the land. The objection was overruled, and the evidence permitted to be read to the jury. [553] By the warrant of re-survey, the lands in controversy were required to be surveyed. The plat and certificate appear to be general, and do not specify the distinct parcels of the land. Yet the land surveyed is described by metes and bounds; and that description must be taken to apply to the lands which the surveyor was required to survey. It does not appear that he was required to describe and designate each part of the land sued for, by itself; and for aught that appears, the survey and description were sufficiently specific to show the general bounds of the land sued for, and to enable the plaintiff to show by other witnesses that the lands so described were in the possession of his father. This must have been the object of having the re-survey; and we think that the description was sufficiently definite for that purpose. Secondly. The defendant next moved to exclude the testimony of the witnesses Cook and Marble, given in behalf of the plaintiff to show the boundaries and description of the land, on the ground that the re-survey and certificate made and returned in the cause, were the only evidence that could be submitted to the jury to show the boundaries; but the motion was overruled. It was certainly competent to explain the situation and locality of the land described in the surveyor’s return by parol evidence. From necessity, the description of lands in plats, and certificates made by surveyors, may be very inadequate to convey a correct idea of the situation of the premises; and without the aid of explanatory parol evidence, such documents would be of but little use in the settlement of questions depending upon possession and boundary of lands. In this case, the testimony objected to had reference rather to the fact of possession of the lands by the plaintiff’s father, than to the description of the lands; and in proving the possession of the father, it became necessary for the witnesses to explain the situation of the land so possessed. But it is clear, that boundaries may be proved by parol, and that it is competent to explain the description of the lands sued for, so as to bring them within the description made under a warrant of re-survey; in other words, to show that the lands sued for, and the lands surveyed, are the same. Thirdly. The defendant offered in evidence the deposition of Mrs. Mitcherson, the tendency of which was to prove that the mar [554] riage of Abner P. Burton, the plaintiff’s father, with his mother, was not valid in law; and consequently that the plaintiff was not entitled to the land in controversy, as heir-at-law of A. P. Burton. It appeared that this witness and the defendant in this action were the sisters of A. P. Burton, the plaintiff’s father, and would be his heirs if the plaintiff was not his lawful child. The plaintiff, therefore objected to the deposition, on the ground of incompetency of the witness for interest; and the objection was sustained. The propriety of this decision is too clear to admit of controversy. Fourthly. The defendant moved to exclude certain parts of the depositions of the witnesses Fergurson, Selden, and Cochran, read in behalf of the plaintiff, showing that these witnesses had often heard the plaintiff’s mother state, many years ago, that one Bayard, who was her husband before she married the plaintiff’s father, was dead prior to her marriage to the plaintiff’s father; and that he had never been heard of since he left her in the year 1829; and that the general reputation among their family connexions was that he was dead. But the court refused to exclude the testimony; and we think properly, on well settled rules. It appears that the plaintiff’s mother was dead, and her declarations that her former husband was dead, are competent evidence of his death. 1 Stark. Ev. 158, 159, (5th Am. ed.); 2 lb. 605. So common reputation and belief, in the family and among their relations, of the death of a party, are competent evidence of the fact. 1 lb. 158. Lastly. It remains to consider the rules of law declared by the court to the jury in relation to the marriage of the father and mother of the plaintiff. It appears that prior to the year 1829, the plaintiff’s mother had been lawfully married to one Bayard; that he left her in this State in the year 1829, for the purpose of going temporarily to the State of Maryland, his native place, by way of New Orleans; that he never returned, and was never afterwards heard of, and was believed by his family and friends to be dead, and probably murdered in New Orleans for his'money; that his widow, or wife, afterwards married the plaintiff’s father in the year 1834, of which marriage the plaintiff was the sole issue, and that they lived [555] together as husband and wife for several years, until the death of the plaintiff’s father. Upon this point the court instructed the jury as follows:— 5. If the mother of the plaintiff was married to Bayard before her marriage with Burton, the plaintiff’s father, and Bayard was alive at the time of her marriage with Burton, the marriage with Burton would be void, and the plaintiff would not be heir-at-law of A. P. Burton, deceased. 6. The marriage of the plaintiff’s mother with his father, A. P. Burton, although it may have been within five years after the departure of her former husband, Bayard, is to be held valid by the jury, unless the proof satisfies them that Bayard was alive at the time of the marriage of A. P. Burton with the plaintiff’s mother; the presumption of law as to the continuance of the life of Bayard after his departure, will not be sufficient to establish the fact that Bayard was alive at the time of the marriage of A. P. Burton with plaintiff’s mother. We consider these instructions as stating the correct rule upon the subject. It is true, that the presumption of law is, that Bayard was'alive until the lapse of five years after his departure had given rise to the presumption created by the statute that he was dead. But there is also a presumption of law that the marriage of the plaintiff’s father and mother was valid, it having been solemnized in due form of law. It was valid, unless the former husband was living at that time. But unless he was shown to be then living, the presumption must be indulged that he was dead; because, otherwise, the second marriage would be held criminal, by reason of a presumption; which would be to establish a crime upon a bare presumption. Rex v. Gloucestershire, 2 Barn. & Ald. 386. Moreover, the probabilities greatly strengthen the legal presumption of Bayard’s death at the time, and show its justice under the circumstances of this case, as he has never been heard of since his departure. It would therefore be unjust and unreasonable to give force to the presumption that he was living at the time of the second marriage, when subsequent facts tend strongly to show that the presumption of his death, upon which the parties acted, was true in point of fact. [556] The other instructions given by the court appear to declare proper rules upon the points embraced by them, and we perceive no error in them. Having thus considered the several grounds of exception presented in the record, we think that they show no good ground for reversing the judgment. Judgment affirmed.