Carter v. Carter

(dissenting) : After careful review of the record in this case I feel satisfied that the Master’s report is right and should have been confirmed.

The evidence, to my mind, is overwhelming that during the period of slavery, Jerry Carter and the woman, Chaney, sustained the relation of husband and wife morally, and that while this relation subsisted, Jerry maintained illicit relations with the woman, Dolly, the fruit of which were the intestate, Ella Easley, and her, five brothers and sisters, through whom the plaintiffs claim. There is not a particle of evidence tending to- show that there was any pretense oi" marriage between Jerry and Dolly until after the death of his first wife, Chaney. Even the leading plaintiff, Yancey Carter, son of Jerry and Dolly, and brother of Ella, testifies to the marriage relations of Jerry and Chaney and *511 to the marriage after Chaney’s death of Jerry and his own mother, Dolly. The children, Ella, Fanny, and John were older than Yancey, and if his birth occurred during the lifetime of Chaney, and while she was the reputed wife of Jerry, their births, preceding his, occurred during the same period.

Furthermore, respectable white witnesses testified to the •fact that Jerry and Chaney were husband and wife; that they lived together in a house that was built off nearly a quarter of a mile from the old Jacobs’ house, where Dolly lived, and that at that time there were several of these children of Jerry and Dolly around there — Ella, being the oldest of them, was necessarily among that number.

If, therefore, the intestate was the illegitimate child of her father, notwithstanding the Act of 1865 (13 Stat. at Farge, p. 291), making her the legitimate child of her mother, she bore the same relation to her brothers and sisters, who were actually of the full blood as if each had had a different father, for each one, so far as the father is concerned, is nullius films or filia. She then bore the same relation to the first of the two children, Janie and Hettie, begotten by white men, as to her full brothers and sisters, children of Jerry and Dolly, namely, of the half blood. The authorities cited by the very able Master are clear to the point.

The opinion of the Court was delivered by

This is an action for partition. The rights of the parties are dependent upon the question whether there was a moral marriage between slaves, and the recognition of the children born of them as legitimate.

The facts are fully stated in the report of the Master, which was in favor of the defendants, and to which the plaintiffs filed exceptions. On hearing the report of the Master, his Honor, the Circuit Judge, sustained the excep *510 tions, but did not refer specifically to the testimony upon which he based his conclusion. The defendants appealed upon exceptions which, together with the Master’s report, the plaintiffs’ exceptions to it, and the defendants’ grounds of appeal, will be reported.

In their argument the appellants’ attorneys say:

“Was Blla Basley the child, of a moral marriage, or ivas she born in concubinage? We invite the earnest attention of the Court to this question of fact, for the whole case turns upon it.”

We also take the view that this is the question upon which all others in the case are dependent. The presumption is in favor of the findings of fact by his Honor, the Circuit Judge, and it is incumbent on the appellants’ attorneys to satisfy this Court that they were erroneous.

The appellants’ attorneys have discussed the testimony at great length and in detail, but they have failed to satisfy this Court that there was error on. the part of his Honor, the Circuit Judge.

Affirmed.