Graham v. Taylor

delivered the opinion of the court.

This was an action of ejectment, in which, at the close of the evidence, a peremptory instruction was given for the defendant, and there was a verdict and judgment accordingly. The land in controversy was formerly owned by J. H. Wilson, who, being in bad health, went to Texas for recuperation, accompanied by Lucinda Wilson, a woman who seems prior to that time to have been cooking for him, and who accompanied him to Texas for the purpose of nursing him. *741Shortly after arriving in Tesas J. H. Wilson died. After his death Lneinda Wilson, claiming to have married him after their arrival in Texas, executed a deed of trust upon the land in controversy to secure the People’s Home Savings Bank in the payment of an indebtedness alleged to • he due it by J. H. Wilson, and also of an indebtedness alleged to be due it by herself, which deed of trust was afterwards foreclosed and the property purchased at the foreclosue sale by appellant. J. H. Wilson léft surviving him one brother, who conveyed the land to J. H. Wilson, Jr., who conveyed it to ap-pellee. This brother is the only heir at law of J. H. Wilson unless Lucinda Wilson be in fact his widow.

Appellant sought to prove the marriage of Lucinda Wilson to J. H. Wilson solely by the evidence of Lucinda herself, which evidence was objected to, and excluded by the court, and if this ruling was correct the. decree appealed from must be affirmed. In Whitehead v. Kirk, 104 Miss. at page 822, 61 So. at page 741, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann Cas. 1916A, 1051, it was said that:

“Whenever a witness is offered for the purpose of proving any transaction, act, contract, admission, license, condition, etc. (whatever may be its exact nature), as ‘a fact to be proven,’ and proven as a fact existing or occurring prior to the death, and the proof of such fact as then existing or occurring is determinative of a claim of right of such witness to or in property of the deceased, and establishes such claim or right directly and finally, there the witness is testifying to establish his claim, which originated during the lifetime of such deceased.”

The testimony of Lucinda Wilson comes clearly within this rule', and therefore, within the provisions of section 1917, Code of 1906 (Hemingway’s Code, section 1577), for the reason that it tends to establish a fact— that is, her marriage to J., H. Wilson — existing prior *742to the death of J. H. Wilson, and determinative of her right to property owned by him so that the court below committed no error in excluding it. The cases of Covington v. Frank, 77 Miss. 606, 27 So. 1000, Tucker v. Whitehead, 59 Miss. 594, and Kelly v. Miller, 39 Miss. 17, relied upon by appellee, were reviewed and explained in Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051, and were there shown not to be, when properly understood, in conflict herewith.

Affirmed.