Oscar and Bettie Garland were slaves, belonging to the same master, with whose sanction they intermarried and lived together as man and wife before their emancipation. Appellant Alice Cumby was born of this union. Her parents, when emancipated, were still living together as husband and wife, and continued to do so until the fall of 1865, when they separated. Afterwards Oscar married appellee Charlotte, with whom he lived until his death. Bettie also married again, and is still living. While living together, Oscar and appellee Charlotte accumulated the property which is the subject of this controversy. No children were born to them, and after Oscar's death appellant Alice, claiming to be his legitimate child, joined by her husband, sued Charlotte for one-half of such property.
The court below held, that there was no valid marriage between Oscar and Bettie, and that Alice was therefore illegitimate and not entitled to inherit from her father. This ruling presents the only question raised by this appeal.
Such marriages as existed among slaves were by the law of bondage treated as invalid. Timmins v. Lacy, 30 Tex. 136; Livingston v. Williams, 75 Tex. 655.
The daughter of Oscar and Bettie Garland was not therefore the issue of a valid marriage, and at the time of her birth had no capacity on this account, as well as because she was herself a slave, to inherit property. Whether the emancipation of all of the parties, by its own force and without further act upon their part, clothed the child with the qualities and capacities of a legitimate person, is a question which need not be decided in this case. There is high authority to sustain the proposition that such was the result to children born of the marriages of slaves. 1 Bish. on Marr. and Div., 163b.
In Timmins v. Lacy, supra, however, the issue of such a slave marriage, born before emancipation, was held to be illegitimate.
But neither in that case nor in the case of Livingston v. Williams did the relation of husband and wife subsist between the father and mother after their emancipation had clothed them with a capacity to contract the matrimonial alliance. In the opinion in the former case it is said: "Whether the mutual and continued voluntary recognition since emancipation of a subsisting marriage between the parties to such pre-existing permissive cohabitation during slavery does not give such connection the sanction of legal marriage, presents a very different question," and the opinion of the Supreme Court of Louisiana, deciding in the affirmative the question thus stated, is quoted with apparent approval. *Page 522
Mr. Bishop says: "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 Marr. and Div., 162.
In the case of Livingston v. Williams, Chief Justice Stayton intimates that this rule should be recognized, unless the provisions of the Constitution of 1869 forbid such a ruling.75 Tex. 656.
The principle thus announced has received general recognition, both by legislation and judicial decision, and we do not hesitate to recognize it as the correct rule, by which the courts should be guided, unless the Constitution and laws of the State have made a different one applicable.
The Constitution of 1869, article 12, section 27, provided: "All persons who at any time heretofore lived together as husband and wife, and both of whom, by the law of bondage, were precluded from the rites of matrimony, and continued to live together until the death of one of the parties, shall be considered as having been legally married, and the issue of such cohabitation shall be deemed legitimate. And all such persons as may now be living together in such relation shall be considered as having been legally married; and the children heretofore and hereafter born of such cohabitation shall be deemed legitimate." This rule was also declared by legislative enactment, August 15, 1870 (Paschal's Digest, article 120), was carried into the Revised Statutes (article 2846), and is still in force.
It is obvious that the marriage of Oscar and Bettie Garland is not validated by this legislation. In order that their case should fall within its provisions, the parties must either have lived together as husband and wife until one of them died, or must have been so living together at the adoption of the Constitution. But as their marriage had become complete by their voluntary agreement to live together as husband and wife, followed by cohabitation, after their incapacity was removed by emancipation, no positive act of legislation was needed in order to render it valid. The question is, did the Constitution annul all marriages between parties who had been slaves, except such as were expressly recognized by its provisions? No question as to the power to thus invalidate marriages previously valid need be considered here.
The legislation referred to undertook to declare certain marriages valid. Can it with any propriety be said that this shows a purpose to declare invalid all others which had taken place while the parties to them were slaves? To state the question is, it seems to us, to answer it. A declaration that marriages falling within a certain class shall be valid, certainly is not equivalent to saying that any others shall be invalid, unless it can *Page 523 be said that the validity of one is inconsistent with the validity of the other. Every marriage thus affirmatively rendered valid may stand without in any way affecting others which the principles of law, aside from such legislation, would uphold.
The condition of the negro population of the State, newly emancipated when this Constitution was adopted, was such as might have rendered hazardous the use of general declarations upon the subject of their marriages. A general validation of slave marriages by legislative declaration might have been attended with consequences, pains, and penalties to the negroes which could not have been foreseen or provided against. It was therefore, doubless, thought best to make the declaration embrace only cases where the propriety of fixing upon the parties the status of husband and wife was clear and could be attended with no questionable consequences. Therefore only those marriages which had lasted until the death of one of the parties or until the adoption of the Constitution were treated. All others were left to be regulated by the general principles of the laws of marriages applicable to the facts of the particular cases as they might arise. The law upon the subject of these marriages had not then perhaps been declared by the courts so fully as has been done in other States since then, and might have been considered to be in an unsettled condition. The provision quoted evinces a purpose to settle all questions as to those cases coming within its terms, by giving to such marriages the sanction of the State.
It would not only be unjust, but inconsistent with the spirit of this legislation, to make it, in the effort to make valid some marriages, have the effect to annual others which by the prior law were good. Hence we conclude that the marriage of appellant's father and mother was rendered complete and valid by the voluntary continuance of the relation of husband and wife after their emancipation.
Under a provision of the statute in force at the time, though it be conceded that appellant was illegitimate when born, such marriage of her parents, subsequent to her birth, rendered her their legitimate child, with capacity to inherit from either. Rev. Stats., art. 1656.
Appellant is therefore entitled to one-half of the community property for which she sues, unless there are other rights in the defendant than her claim of heirship to Oscar Garland. We can not render the judgment here with the assurance that all of the rights of the parties are protected, and the judgment will be reversed and the cause remanded, with directions to the court below to make partition in accordance with this opinion.
Reversed and remanded. *Page 524
ON MOTION FOR REHEARING.