Lessee of Sarah I. Jewell and Others, in Error v. Benjamin Jewell and Others

Mr. Chief Justice TANEY delivered the opinion of the court. This is an action of ejectment brought by the plaintiffs iri error against the defendants, to recover a house arid lot in the city of Charleston, in South Carolina. The plaintiffs claim to be the lawful wife and children- of Benjamin Jewell, deceased, who, it js admitted, died intestate and seised of the premises in question. The defendants also claim to be the lawful children of the same Benjamin Jewell, by Sophie Storne, who, before her marriage, was named Sophie Prevost, who is still living and has conveyed all *229 her interest to her children, and the rights of the parties depend altogether upoh'the validity of this marriage. At the trial in the Circuit Court, the verdict and judgment being* .in favour of the defendant’s, the case is brought here by a writ of error,-sued out-by the plaintiffs. The questions before this court appear in- the two bills of exception taken by the plaintiffs. • The testimony as set forth in the record is voluminous, and in many instances contradictory. But a very brief statement Will show the pointé of law which have been brought here for revision, and it is unnecessáry to encumber the case with the mass of testimony which Was offered to' the jury by the respective parties, in order to prove or disprove the • marriage in controversy. The plaintiffs proved the marriage of Benjamin Jewell, on the 30th of June, lS.12,-.with Sarah Isaacs, one of the lessors; and that the other lessors of the plaintiff are the issue of that marriage. The defendants, in order to show that they, and not the plaintiffs, were-the heirs at law of Benjamin Jewell, examined Sophie Storne, who stated that she was married to.Benjamin Jewell, at Savannah, in Georgia, in 1794 or 1795, by a magistrate whose name she did not recollect, in the presence of several' witnesses; that the said Jewell was a Jew, and the witness a Catholic; that her mother would not consent that she should be married according to' the Jewish form, and that Jewell would not consent to be married according to their form, and on that account they were married by a magistrate; that they lived together as man and wife many years; and that the defendants are the issue of that marriage ; that they at length separated, and' she having heard that Jewell was married'again, thought that she also had a right to marry, and- accordingly married a certain Joseph Storne, wkh' whom she lived .some years, and who is since dead. Various acts and declarations of the parties, and the general reputation in the places where they lived, were also offered in evidence bn the part, of the defendants, to prove that'the said. Jewell and Sophie had lived together as man and wife, and-had constantly acknowledged and spoken of each other as such. To rebut this evidence, and to show that the connection of the parties was merely concubinage, and not marriage, several instruments of writing, alleged to have been executed by them at dif *230 ferent times, were offered in evidence on the part, of the plaintiffs, and also various acts of the parties and the general reputation in the places where they'lived. After this evidence on the part of the plaintiffs and defendants had been given to the jury, the plaintiffs offered the declarations of one Simons, (the deceased husbancl of one of the defendants,) that his wife’s mother was not married to her father. It was objected to by the defendants,,and rejected by the court.. The plaintiffs also further gave in evidence that the separation took place in Charleston, in the month of December, 1810, where it was admitted that the parties had been living together for many years, and then produced a file of tfie Charleston Courier' for tlie year 1811, and proved that the manuscripts or originals from which the paper of that da'y was published are lost or mislaid; that it was at that time the leading commercial paper in Charleston; -and thereupon offered to read, from the file the following notice, as published on the 22d of January, 1811, .and for three successive weeks from that time, viz.: NOTICE. “ The subscriber forbids all persons from giving credit to Mrs. Sophie Prevost on his account, as he will phy'no debts whatever she may contract. Benjamin Jewell.” ■ But the court refused to allow fhe evidence to be read; and these two points of evidence form the subject of the first exception. The second exception brings up the question as to what constituted a legal marriage in Georgia and' South Carolina, in one or' the other of which states the parties had always lived from the time of their original connection. Several instructions were asked for on’both sides, some of whieh would appear not to have been controverted; and the points before this court will be better understood, by excluding all the prayers on both sides which do not form a part of the exception, and are therefore not now the subjects of review in this court. The exception is confined- to the third and sixth instructions asked for by the plaintiffs, and to the first asked for by the defendants. They are as follows: 3. That if the jury do not believe that Benjamin Jewell and Sophie Prevost were married by a magistrate in Savannah, in the year■ 1-7-96,,or before that time, then there "is no evidence of a *231 marriage before them, on which they can. find the defendants to, be the legitimate heirs of Benjamin Jewell: 6. That a promise to marry at a future time, followed by cohabitation, does not constitute-marriage, though the promise be accepted at the time when it was made JJefendanl’s prayer. 1st. That if the jury believe that before any sexual connection between Sophie Prevost and'Benjamin Jewell, they, in the presence of her family, and his friends, agreed to marry, and did afterwards live, together as' man and wife, the tie was indissoluble eveu by mutual consent. Whereupon the court gave the instruction requested by the defendant, and refused the third instruction asked for by the plaintiff; and upon the sixth, directed the jury that if the contract'be made per verba de presentí, arid remains without cohabitation, or if made per verba .de futuro, and be followed by consummation, it amounts to a valid; marriage, and which .the parties (being competent as to age- and consent) cannot dissolve; and it is equally binding as if made in facie ecelesise., To this refusal and instruction the-plaintiff excepted. We proceed to examine the questions presented by these exceptions in the order in which they are stated. The first point in. the first exception is upon the rejection of the declarations' of Simons', the deceased' husband of one of the defendants. It is true that Simons cannot be -presumed to have known of his .own personal knowledge the particular fact of which he wap speaking; and he must have made the statement upon, information derived from others. • fie does pot appear to have named the person from whom he obtained liis infonhation, nor to have stated that his knowledge was derived from the' general -understanding and reputation in his wife’s-family. But the knowledge of events of this description most generally exists in every family, and hence the declaratiqns of one of its .members is admissible, although he does not.mention the source from which' he derived his information; and such declarations are equally admissible whether his connection with the family is by blood or marriage.. In the case of Vowles v. Young, 13 Ves. 140, testimony precisely similar to that now offered was received; and wé think the declarations of Simons ought to' have-been admitted, and that the Circuit Court erred in rejecting thém. *232 The second point in this exception Was upon the admissibility of the advertisement in the Charleston Courier; and upon this point also we differ in Opinion with the Circuit Court. It was admitted that the parties had cohabited-together, for a long time, and that -the defendants were the issue of that intercourse; and in order to prove that their mother was married to Jewell, the aets and declarations of the parties during their cohabitation were offered in evidence by the defendants, (and were unquestionably admissible,) to prove that during that time she was. acknowledged and treated by Jewell as his lawful wife. Acts anid declarations were also offered on the part of the plaintiffs, to prove the contrary. The separation took place in December, 1810, in Charleston, where the parties had lived together for niány' years, and this - advertisement appeared in the principal commercial paper of the place in the January following. It was offered by the plaintiff, like the.acts and declarations above mentioned, on his part to rebut the testimony which had been given by the defendants; and this advertisement would manifestly have bepn admissible on the same rules of evidence, if it had appeared while the parties were still living together or at the moment of separation. And although they had parted a short time before! the publication, yet it followed so immediately afterwards, that it must, be regarded as 'a part of the res gesta, and as one of the circumstances connected with'the separation and previous cohabitation. Whether it was inserted by Jewell or not; and if it was, what were his motives for so-doing, are questions for-the consideration of the .jury and not for the court. The' plaintiff had a,right to'show the fact that such an advertisement .did appear-at the timé mentioned, and it was with the'jury to detéimine the degree of weight, if any, to which this fact was .entitled, taking into, consideration all the, circumstances under which it appeared. As relates to the points contained in the second exception, we think the court were right' in refusing the- third instruction requested by the plaintiffs. In order to explain the question intended to be raised by this prayer, it is proper to state, that' in addition to the testimony of Sophie Storne, herein before mentioned, certain acts and declarations of the parties, which it is not necessary to set forth at large, were given in evidence by the de *233 fendants, by other witnesses, to prove that the parties were married at Savannah, abouj; the time .mentioned by Sophie Storne, and before they cohabited together. The plaintiff, on the contrary, in order to prove that they were not married, and that she went to live with him as his concubine, offered in evidence a paper, purporting to be. signéd by the parties, and dated March the loth, 1796, by which there was an open and.plairi agreement on her part to become the mistress of Jewell. The paper is gross and indecent in its -language, and it is unnecessary to state more particularly its contents. The third instruction asked for by the plaintiff is founded upon the assumption that this paper is genuine, and insists that if the marriage did not take place before its date, then the intercourse began under this agreement, and their subsequent cohabitation must be presumed to havé been of the same description, unless an actual marriage after-wards was proved. But the answer to the argument is, that the authenticity of the paper is denied by the defendants, who contend that it was fabricated by Jewell, or, if signed by Sophie, that she was entrapped and deceived, and ignorant of its contents. The question, therefore, is open to the jury, upon the whole evidence, to determine Upon what terms and ih what character the connection originally began; and' the evidence offered by the defendants, that they lived together for so many years as man and wife, and treated and spake of each other as such, are certainly admissible to show that a marriage had taken place between them at some time or other, and whether before or after the date of the paper could not be material. The residue of the instructions contained in this exception all involve the question as to what constituted marriage, at the time of this cohabitation, by the laws of Georgia and South Carolina. The question has, of course, no concern with the nature and character of the unipn of man and wife in a religious point of view. But regarding it (as a court of justice must do) merely as a civil contract, and deciding in what form it ought to have been celebrated in order to give the parties the legal rights of property which belong to the husband or the wife, and to render the issue legitimate, the Circuit Court held, and so -instructed the jury, that if-they believed that, before any sexual connexion between-the parties, they, in the presence of her family, and friends, *234 agreed to marry, and did afterwards five together as man and wife, the tie was indissoluble even by mutuaf consent. And that if the contract be made per verba de presentí, and remains without cohabitation; or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve; and that it is equally binding as if made in facie ecclesiee. Upon the point thus decided, this court is equally divided; and no opinion can therefore be given. Upon the questions, however, contained in thé first .exception, the judgment of the Circuit Court must be reversed, and a venire de novo awarded. order. This cause came on to be heard on the transcript of the record from' the Circuit Court of the United States for the district of South Carolina-, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same- is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.