majority">STAYTON, Chief Justice.

This action was brought by appellant to recover land which belonged to Moses Livingston, who died before it was brought.

* The court below found that “ Moses Livingston was a slave, and owned by one Philip R. Smith for a long time prior to and up to his emancipation, June 19, 1865. After the manner of slaves, and with the consent of his master, he married one Fannie, also a slave belonging to said Smith, and they lived together as husband and wife, after the manner of slaves, upon the plantation of said Smith continuously from about 1850 until they were emancipated, and thereafter until the latter part of 1865, late in the fall.”

Appellees are the children of Moses and Fannie, born before emancipation.

“ For a long time prior to his emancipation, but beginning some time .subsequent to his marriage with Fannie, Moses began to cohabit also with one Malinda, also a slave belonging to said Smith, and she bore him several children, the youngest of whom, George Livingston, the plaintiff, is the only one now living; * * * but this cohabitation was disapproved of by the master, and was clandestine. The relation, however, of husband and wife continued to exist 'between Moses and Fannie, and they occupied the same house and lived together as man and wife until late in the fall of 1865.”

The court further found that after time last named Moses and Malinda cohabited as husband and wife until her death, which occurred in 1876, ■but that during that period he also cohabited with Fannie at intervals until her death, which occurred in 1872.

On this state of facts the court below found that the relation of husband and wife did not exist between Moses and Malinda, and that appellant did not inherit from Moses.

*656In this ruling there was no error.

Section 27, article 12, of Constitution of 1869, legitimated the children of slaves who prior to emancipation lived together as husband and wife, and continued so to do until the death of one of them.

That section of the Constitution also validated the marriages of such persons as were living together as husband and wife at the time of its adoption, and legitimated the children of such persons, whether born before or after that time.

The purpose of this provision evidently was to give effect to the moral obligation arising from the consent and act of those who while slaves entered into the only marital relation possible under their condition, in all cases in which such persons after emancipation continued to recognize and live in the relation of husband and wife until the Constitution was. adopted.

It, however, can have no application to cases in which, after emancipation, persons formerly slaves had unlawfully cohabited; nor to cases, in which during bondage slaves had cohabited without intent to become husband and wife according to the usages of persons in that condition. They must have lived together as husband and wife during bondage and so have continued to live until the adoption of the Constitution to come within its provisions.

Hot being capable of making matrimonial contracts while slaves, if on emancipation such persons theretofore living as husband and wife elected no longer to do so, we do not see that any lawful power would exist to make them man and wife against their consent; but their consent, evidenced by continued cohabitation after emancipation, that the. relation of husband and wife recognized to exist during bondage should continue, might be given effect, as was done by the section of the Constitution referred to.

The relation of husband and wife was never recognized between the mother of appellant and Moses Livingston while they were slaves, and the provision of the Constitution did not have the effect to make them husband and wife simply because they were cohabiting at the time the Constitution was adopted. After emancipation they might have made a valid matrimonial contract, but the existence of such a contract can not be inferred from the fact of cohabitation when it is -shown that he also cohabited with the mother of appellees, who, during the time they were slaves and subsequently, was recognized as his wife.

It may be true, under the facts in proof, that the relation of husband and wife continued between the mother of appellees and Moses Livingston until the adoption of the Constitution of 1869. If so, they became husband and wife and appellees his legitimate children.

Unless the provision of the Constitution on which it is claimed the status of the parties depends forbids such a ruling, it seems to us, as *657stated by an elementary writer, “if the parties, having been married while slaves in the form usual among this class of persons, live together as husband and wife after they are emancipated, this, their subsequent mutual acknowledgment, should be held to complete the act of matrimony so as to make them lawfully and fully married from the time at which such subsequent living together commenced.” 1 Bish. on Mar. and Div., 162.

If this be the true rule, then, without reference to the constitutional provision, under the findings of the court, the mother of appellees became the lawful wife of Moses Livingston, for he lived with her as husband and recognized her as his wife after their emancipation, although he may not have continued to do so until the Constitution of 1869 was adopted. If the mother became his wife, laws in force made appellees, though born in bondage and without wedlock, his legitimate children.

It is not necessary, however, to determine whether appellees are the legitimate children and therefore entitled by inheritance to the property in controversy, for as defendants they were entitled to a judgment unless appellant was shown to he the heir.

There is no error in the judgment, and it will be affirmed.

Affirmed.

Delivered January 24, 1890.

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