FEDE,RAL REPORTER,
vol. 42.
al of the Cl'llrt. For these reasons, more than any others, I am 01 opinion that it is best that a receiver be appointed to manage the estate and' assets .under the order of the court, which necessity exists regardless of: the solvency oitha defendant. But as the defendant is admitted to be c\>mpeten't to manage the estate, and,as nothing is shown why he should not appointed, a decree will be entered, appointing him as such receIver, upon his entering into bond, with two or more sureties, in the penal of $25,000, payable to the United States, for the use of whosoever may be entitled to the same, and conditioned for the faithful disof his duties as such receiver, as directed by the orders and deof the court. .Said bond and sureties to be approved by a judge court,. or t of ajudge, by the clerk of the court.
r':f,
'Ii'
W ALLAClll '\ \
11. GODFREY
tt al.' June, 1890.)
(Of!rcuUCoUrl, , " .D. Mississippi. N. " 'l' '. .,
w. D.
BBTWBBN BLAVBs·.··OluLDR»'N·ENTITLBD to mHllRIT. , .,. Act 'r"n!J,. May tllat ".all. free persons of color Who were Hvlng , together 6S husband aM wite in thIS state; whUe in a state of slavery, lIereby to.be man and their children legitimately entitled to an'inherit'., 6P.qe in, l¥Iypropert,yhereto!Qre acquillldl or tb:at hereafter be acquired, by'. \ salllpl1tents, to as .full·an extent as thll chIldren of WhIte citizens are entitled I by laws of this,state, " makes legitimate and capable of lnherltillg the · of ,lave parents,. .ml10rriage under the restrictions growing' "ou\: of the'lnstitl1tlclIi ot'sravery, though one of the parents may have died during slavery. , . '. '
D.q.Stant/.ifer. J. T·. F· A. Montgor:ner.!J, for.respqnd,ents. :
.
forcomplainanll. ,,: Sullivan Whit:field,andM.
«
The now presented :for decision arise upon.thede. ward Godfrey, R. C. Kyle, James Ty.son, and W..T.. dethis cause, ,to ,complainllnt's bill. The bill, in 81.lbsf;ance, , statesthat, lin yel:\r 1851, Sam Stone and. Cynthia Ruffin, with the. oftheir master,they botlJ thenJ)eing slaves, were, in the state, state ofTerniessee, lawf1.lUymarried; ipati l1 the year 1852 the complainant, was" asthe fruit <>i said marriage, born, being the said Stone and Cynthia Ruffin, as far as the same the ll}ws(?f of '.l'ennessee"where her PllfC?ts then, lIved, that some months after herpJrtb her. .her father, said Sam Stone, ever afterwards, Q,n.d up to her;as his. lawful child, as muclilso as could 'be dQ.!le:under hi.s.9oudition ass. ,slave, and under ,the l!Jws Qf said, state; a,nd her slaves untileml;l;,Qcipa.ted by to the .constitution of the United States,.' tp reside in sllid state llil thereofq.ptU aQme ; I
:,.
...
WALLACE
v:
GODFR!V.
in the year 1867 or1868,when her father removed to the state of MIs" sissippi, complainant remaining a citizen of where she still resides, and is the wife of Wallace; that on the 26th day of May, 1S66, and while complainant and her father were citizens of Tennessee, the legislature of said state passed an act in the following words: "All free persons of color, who were living together as husband and wife in this state while in a state of slavery, are hereby declared to be man and wife, and their children legitimately entitled to an inheritance in any property heretofore acquired, or that may hereafter be acquired, by said parents, to as full an extent as the children of white citizens are now entitled, by the existing laws of this state." (Laws 1865-66, c. 40, § 5;) that, some time after her father removed to Mississippi, he married It''nother woman, by whom he had two chi1<lreo, George and Martha; that some time during the year 1880 her father died intestate in Tunica county,in the state of Mississippi, possessed and the owner in fee of the w. r ! of section 15, in .township 6, and range 11 W., DOW worth$7,-500r that her father, ,the said Sam Stone, left surviving him, as his heirs lit' law, his' three children, the complainant, arJd eaid' 6eorge Stone; and' said Martha Ston6,the latter having been man'ied to' Henry CHty:;· nlilt' her brother, George Stone, and Martha Clay have both sincedeplirted'; thislife;,that George Stone left neither wife nor child{t:hat Martha Cla:y':' left as her heir at law her husband; RanirY Clay', a:rtdhertwomiliO'l" childi'en, Ida Clay and Davis Clay; that complainant is informed that,' EdwardGodfrey,Jim Tyson, R. C. Kyle,and W.J. Kyle, defendants,: claim some title to said lands. or some' part of . '1'he bill pril!yll' that the defendants answer theallegatioD's'in the bill; 'that commissioners be;a;.ppointedto partition the said lands; a'nd:that complainant hav-e, by', a,decreeOlf this eourt. her interest in said land set'off to her. The:bilP charges that the complainant is the heir·at law> of her father, that as' such she is entitled to one-third in value of the lands described,jtl" the bill, and prays that the same be set off to her as aforesaiu, mid that,' iHhis cannot be done without impairing itsvalue;tl1e land be sold ,'!(arid:';' after the payment of the costs and expenses, the one-thirdthereof'bepai{il over to her. The demurrers aver. that the bill on its'race " shows that complainant was born of slave parents, whowete neverlegaP' ly married; that she is therefore an illegitimate child, and incapable 01". inheriting any part of the land described:In the bill; that she is barred i by the statute of limitations; that the bill :does not set out theihterests of the demurrants in the land described in :the bill. i ' The question thus raised, and which has been ably argued by the learned counsel on all sides, is of first impression in this court, and, iri' some respects, in any other court to which I have ,been referred. The' validity of the marriage between the complainant's parents, and the 18-': gitimacy of complainant as their child, must depenJ upon the statutes: of the state of Tennessee, where the marriage took place. and where the parties resided when the act of May 26, 1866, was passed and became a law as constmed by the supreme court of that; state, and upon the statutes of tqis.stllte oil :thesabject of. deseent of real estate· of perS()l1S dying'
FEDERAl, REPORTER,
The law o;ftbe states regulating the validity ot marriage. and ofchijdr:erl'born of the marriage,is governed by thelawfl state where and the children are born, and descent by the statutes of the I1ltate in which the land is situated. This is the rule in all the states,when not against :the public policy of the s t a t e ; ' 1 qave been two ,de,cisionsmade,by the supreme court ofTCQnesseein to the subje<lt of n1arriage between slaves while they wereauch, and RliJothe effeot Qftheact of 1866. The first is the case QfMaReynolds v. $tate, 5 Cold. 18. This was ,a case in which the defendan.t was indicted for ,the crime ,of bigamy; ,The defendant while aslaY.e;marrieda woman who wasalao a slave aUhe time. They lived togetheJ: [as husband and wife until after the emancipation act, when he abanqonedhis wife, and married another colored woman. 'For this marindicted. It was held by the courtin that case that while incapable of making :avlllid contract, and that the marrie.gewl!iB(void, and that it wa.s hispdvilege to treat it as a nullity as soon as ,he, of making a, valid contract; yet, if he continued to livew.th:t/le woman he had married wheI1a slave, after emancipation, it was,uati.fication of the JDarriage. A mutual rec9gnition of each other. aftertljl, emancipation, ashusbaRd and wife, completes the act of matrim,ony, between those who had been married aedording to the custom of marrillge\>etween slaves during the time of slavery. Under this decision, the complainant died before the emancipation, the as the heir at law of her .fa-ther could not be maintained. (lIlme hefore: the supreme court again in the case of Page, 3 Heisk. 653·. The facts in that CRsewere as follows: Oq of 1857. (the statement. in the report by it. 1867,) lIeul'yPage, a free man,ofcolof, bought of the three slave,s, to be his wife and, two children, for the SUm9f!$8)200. and took a billor sale from the complainant, the vendor. Henfypajd" part of thE! ,purchase money, and was to .pay· the residue i1}' one,_ tW()ti and three yeara j having absconded privately, and left the CQuI1try WPJlrls,uI1knowu, 48-toe bUlalleged,an attachment in chancery levied upQn,the real estate of Page, to recover the unpaid was .ID<;lDey. The bill was filed in, Jannary, 1861. Henry Page died in Octpber, 1864.. ,No .f1,lt'1;hersteps hael been takE.'n in the cause until 8 decreejwas rendered.in favor of the comAuguat, 1866, at whioh time Dilly Page, plainant for the balan<;e the widoW' qflIenry, andbis children, filed a petition.td·reopen the case, which w8;S grimted. The :widow set up her claimtodoweHn the lands" al;1d _ <:hildrEln set up their Glaims; as. heirs at law, all of which claims the by, the c<)rnplaiol,lnt. .The, court e:ltamined the case with were delivered an elaborate .opinion, in which· great care,anJ.l. it the in the, slave states, that the municipal did noLhpld;asvalid mal'riagesbetw6tlmi ,slaves, had not prevailed intbe and ill that particular the cast} ·. ,The court furthel'held that the power to
WALLACE fl. G0D,FREY.
515
J;nltrrlages and legitimate children by the general laws existed in the legialJl.ture of the Eltate, and the act of Afay 26, 1866, legitimating marrj,ljges .of slaves, was valid, and the children ofslavemarriagEl$ :W:ere , capable of inheriting by .the act of 1866,; .that the purchaseby:Henry of his wifegllve her an inchoat.e right of freedom, only requiring the assent complete it, which her emancipation, effected, and that it , to the time this inchoate right was acquited; that Dilly was entitled to dower in the. lands, and that,!,fter the payment. of the purchase money due the complainant, the qhil<lren, as the' heirs at theirfaAter" :Henry Page, were entitled remainder. The opinion .in this that "the act of passed to ratify the institution Qfslavery by the prElvailing state" and .to . ofiQlleritance to· such an4, the changed of the slave, was in. furtherance of gQOd , and of the best interests- of the and" where no other rights emineatly constitutional an.d prQper." : . , . '" ;I Undl'lfitjlnd thi!l ofthe supreme cour;t !of.Tennessee, the pneon the subject, 't9 hold: (1) That marriages between ,slaves .in, which v,alid\1nder the law but fOl'the ()ut ,oftbe institution.. Of were valid the of the partie!las,slaves ,would, per!lnq. the children bPrn of. aucp marriages. were not bastllrds, . and .capable of inheriting the. property of tbe,ili,parenf;s, as ;could be . (2):Xhat the .purpose of ao( ofJ866 .·nd its. wl;I8, ,to, to 'Illllrl111g138 full rights; to ,give born while alaYes, all the would ,had their parents ma11'ied white, persons·.. Henn- Page died in 1864, been the 0(1866 was paasad, though their,master was their father" l\./ld a portion!)f them must have been. born while Andrews was the\r ownel'. : Notwithstanding this, they:were declared, t4e to be the law of their, fat!;ler, and, :entitled to , act heritapce in his estate. T,he legislature, at the time act of 1.866 was .passed". passed another that. all administrators 8J).\i !)loney in tbeirbands,to, which of p.llrentsmar,Jied sl,ayes",an,d in slaver,y, aside f;rop! wouI4 paye l:>eeD entItled, /:lhall pay the same over to i APp,dl11J1; the the legislatu.re to, have been, to mch marriages and children In the position of lawfully married and their children as born in lawful wedlock, and entitled to inherit the estate of their parents. Under this construction of the act of 1866, and its effect, I am of opinion that as to slave parents, when one of them died during slavery, the meaning of the act is that such parents shall be held as having been lawfully married, as husband and wife, and their children born of such marriages their legitimate children, and entitled to an inheritance of their parents' estate, when they may have died intestAte.
w.-
FEDERAL REPORTER,
Applyingthese rules to the case nt>w under consideration, I am brought to the conclusion that the complainant, Candis Wallace, must be held as born in wedlock, as the child of her father and mother, and !entitled·to inherit an undivided portion of the lands of which her father died seiHed and, possessed, with his other lawful heirs. The statute of this state (section 1271, Code 1880) provides that when any person shall die' seised of any estate of inheritance in lands,tenements, and hereditamenta, not devised, the same shall descend to his or her children, and their descendants, in equal parts, the children of the deceased child or grandchild to take the share of the deceased parent in equal parts among themitand there shall bellO' distinction between the kindred of the ,whole,and,half blood,except that the kindred of the whole blood, in equal·degree; shall be' preferred to the kindred of the half blood in the Same degree., In this case the and her half brother and sister were all the children of their fatHer; Sam Stone, so that there is no distinction between them or their des'clfudants, to whom' their rights haVe deScended> According to the statements of the bill,upOn the death of the father/each of his three children wBsentitled to take a olie-third interest in, the lahd., upoh the death of'"the brother, his'iriterest descended tohissistet; which 'gat'e her a twolthirds interest;onduponher death 'this interest descended to ,her ·huslJand and her two ,children in equal ,parts. The billallegeathat defendants the said Edward Godfrey, R.C. Kyle, W.'J. Kyle, and Jim Tysoh'claim some interest in the land de,'scendedto GeorgeSt'one,bht in not stated;'."It is urged upon the part of these last defendants thl!-tthis' court, in this proceeding, has no to adJudicate and pass upon their rights" ,This depends upon the character the, title 'under which thet .. If they claim as heirs at law of either ofthe parties, or as grantees ofeither of them, then the court, under section 2576. of the Code of lSSO, bas jurisdiction to hear and determinetQe question of title, and any other questi6n necessary'ip be determined to settle all the rights and equities betweEm ;the parties,in reference tp' the lands· Of which partition or, sale is prayed for in theb'illibut;iOhetitle is claimed under an adverse source to the ;'ecnnplainant's title, and the otlier parties derive or clliim:title from same source. with the complainant, then the court has not jurisdiction ifodetermine the validity of sllch adlerse title. But, as the character of ·lIle spruce of title claimed by these 'defendants does Ii:bt appear in the bill, 'the demurrer will be overruled, with to set tip the same defense 'in 'the answer, and 60 days will be allowed them in #hich to answer as of )Ilepresent term. '. .
MADISON COUNTY
fl.
PRIESTLY.
817
MADISON COUNTY'll. PRIESTLY, Treasurer,el 01. (Oircuit Oourt, S. D. Mississippi. May 15,1890.) CoN8',rITUTIONAL LAW-RAILROAD
trnder Con8t.. Miss. art. 12, § 14, which declares that the legislature shall not authorizeany county, city, or. town to aid any corporation, unless two-thirds of tile qUalified voters of such municipality shall aBsent thereto at a special election, railroad. aid bonds are not invalidated in the hands of innocent purchasers by the fact leBS than such majority. voted for them, where more than two-thirds of the votes cast were in favor of issuing' the bonds. Following OQIITQU 00. v. 8mi£th, 4 Sup., Ct. Rep. 539.
AID ·BOND8.
In Equity. On demurrer to bill. E. E. Baldwin, for complainant. Walter Troller, for the baok. E.Mayer, for Mr; Smith·. HILL, J. This bill 'W1l.S filed by complainant against defendants in the chanceryoourt of Madison county, and removed to this court by the defendants Mrs. Condet Smith and the Bank of Commerce, both nonresidentsofthisatate. The bill seeks to enjoin Priestly, the treasurer, from paying ,the interest lind bonds, described in the bill heretofore '8ued by the supervisors of Madison county to the Vicksburg, Canton & Yazoo City Railroad Company, and purchased and now held by said defendants and others. The questions to be decided arise upon the demurrer ofthe'le defendants to complainant's bill. The allegations stated in the bill asa defense to the payment of said . bonds and interest are that the board ofsupervisors had no power toissue the same; that they purport to have been issued in payment for capital stock subscribed by said board in said corporation; and tbat, to have authorized said board to subscribe for said stock, and to issue said bonds, with interest coupons attached, it was nMessary that the assent of two-thirds of the qualified voters of said county should have been obtained, such number being ascertained bya vote had thereon at a generalor special election held for said purpose. The bill alleges that there were 6,275 registered voters in said county, and that, at the time said subscription was ordered to be made, the board of supervisors entered the order declaring that 1,067 votes were two-thirds of the votes of the qualified:voters in said county, and that number of votes were cast at the election held for tbe purpose stated, which, the bill avers, was then known to be untrue. The bill "admits the authority for holding said election, and that itwas held; that there were 1,067 votes cast ,in favor of said subscription, and 77 votes against the subscriptionjthat the order of tbe board was made, declaring that the.election bad been held "in pursuance".of the act of incorporation of said railroad company, and that more,tban two-thirds of the qualified voters of said county had'votoo .inJavor Of said subscription, whicb,' order Was mlldeon the 27th dliy;of April, 1872, directing the issuance and delivery of the bonds, with interest coupons attached, inpa.Ymentfor the i1tock\Vhichthepresidentlwas v.42F.no.14-52