By the Court. —
delivering the opinion.
First: Was the instrument admissible as an “ancient document ?”
The instrument was more than thirty years old. It was one found among the papers of the husband of her under whom, the plaintiff in the action, claimed. It was proved, that he received it from a person to whom she had entrusted it, to get it recorded. He therefore, it is to be presumed, received it as her agent. And it is further to be presumed, that after receiving it, he held it in the same character in which he had received it.
Moreover, in this case, the wife, in the presence of the husband, asserted the existence of a marriage contract, and he did not deny the assertion, although the assertion was made at a time when he was about selling some of the negroes included in this contract.
[1.] These being the facts and circumstances, we think that the document was admissible as an “ ancient document.”
It is laid down, (correctly, as we think,) by Greenleaf, that if such documents are free from just grounds of suspicion, and come from the proper custody, or have been acted on, they are admissible as evidence without other proof of their execution. 1. Green. Ev. Sec. 570. These conditions we think are satisfied in this case.
Secondly: Was this writing rendered void by the statute of 1823, of South Carolina ?
The second section of that act declares, that — “no marriage settlement shall be valid until recorded,” “ provided, that the parties shall have three months to record the same, and if not recorded within three months, the same shall be null and void.”
From what point is this three months period to start ? from the date of the statute or from the date of the particular mar-’ riage settlement that may happen to be the one in question ?
If we answer, the date of the statute, then we say, that the statute meant to annul every marriage settlement made after the expiration of three months from the date of the statute, because it must be true of every such marriage settlement, that it could not be recorded within three months from the date of the statute.
No such absurdity follows, if we answer — the date of the particular marriage settlement that maybe in question; unless, making the act operate retrospectively, we extend the
In 1832, the Legislature of South Carolina, passed another statute on the same j subject. This statute carries within it, clear evidence, that, in the opinion of the Legislature, the date of the marriage settlement, and not the date of the statute of 1823, was the starting point, intended by the statute of 1823, for the three months period.
The Act of 1832, contains what follows: “ Whereas the act of the Legislature, passed on the 20th of December, 1823, requiring marriage settlements to be recorded in the office of the register of mesne conveyances of the district where the parties resided, within three months, has not been generally known, and many fair settlements have not been so recorded, and are therefore liable to be avoided, to the great injury of the wife and parties interested therein, to remedy which evil:
Be it enacted, That marriage settlements of the wife’s property, executed since the said 20th day of December, 1823, and not recorded, shall be regarded as valid between the parties themselves; and when any such settlement has already-been recorded, or within six months from the passing of this act, shall be recorded, in the office of the Secretary of State, and of the register of mesne conveyances of the district where the party whose property is settled, resided at the time of executing such settlement, the same shall be valid against the debts, sales, and mortgages, of the husband, which shall be contracted, made or executed, after the ratification of this act, any thing in the Act of 1823, notwithstanding.”
We think, then, that the time from which the period of three months, begins to run in any case, is, the date of the marriage settlement in that case, and is not the date of the Act of 1823.
Is that act, then, to be construed so, as to make it operate, on marriage settlements bearing date more than three months before the passage of the act If it is, then we must say,
It seems, that the Legislature of 1832, did not consider the-act susceptible of this construction — for they gave relief to marriage settlements made after the act, and said nothing about those made before the act, and if both kinds of settlements, were needing relief, the latter were best entitled to it, as they were made at a time when there was no law in existence, requiring them to be recorded; and they being best entitled to relief if they needed relief, it is to be presumed, that the Legislature, if it had considered them as needing relief equally with the former, would not have passed them over without relief, while relieving the former, who were less entitled to relief. Hence we may conclude, that, in the opinion of the Legislature, they were not needing relief; and, consequently, we may conclude, that, in the opinion of the Legislature, the Act of 1823, did not apply to them.
We think it safe, to follow the legislative interpretation. Any other would be fraught with much evil.
[2.] Besides, it is a general principle, that statutes shall not be so construed, as to make them destroy vested rights without compensation, if there is any way to escape from such a construction.
Thirdly: Was it the effect of this marriage contract to prevent the marital rights of the husband from attaching to the negroes, both during the life of the wife, and after her death ?
[3.] We think so.
This contract is much stronger against the husband, than was the contract in Holmes vs. Liptrot, 8. Ga. 279. In this contract, the husband agrees, that he “ will never, after marriage, either in the life, or after the death, of” the wife, “ either directly, or indirectly, for himself, or for any of his
There is nothing so strong as this, in Holmes vs. Liptrot. Indeed, 1 may say, that I, myself, doubt Holmes vs. Liptrot. But I cannot doubt, that it was the purpose of the husband in this case, to agree that he would never, by virtue of his marriage, claim any right whatever, in the negroes to which the contract related.
The case is stronger against the husband, than was that of Sheppard vs. Sheppard et al., decided at Savannah, June, 1857, and yet, in that case, we held the husband barred. See too, McCurd vs. McCurd, 19. Ga. Rep. 609.
There is nothing in the preamble of this contract, that can prevail over the strong words of the body of it, especially when it is part of the latter words, that the contract is to be construed “ most liberally” for the wife.
No question was made in this case, whether the rights of the wife under the instrument, were not such, that they ought to be asserted, rather, in equity, than, at law; and nothing on that question is decided.
We think that there ought to be an affirmance of the decision of the Court below.
Judgment affirmed.