Statutory action in the nature of ejectment, for the ¡recovery of land, which at one time belonged to a negro named Jacob Sumter, now deceased.
It is not disputed that the plaintiffs are the children and grand children of said Jacob and his alleged wife, Phoebe, with right to recover, if they were the legitimate descendants of said parties. Appellants’ counsel correctly stated in their brief, “The real and only question of fact in the case was, whether -o-r not the plaintiffs were the legitimate children and grandchildren of said Jacob Sumter, or whether they were bastards.”' Jacob and Phoebe were slaves before and during the war. -and belonged to a man by the name -of May. The plaintiffs were the offspring of these two, born before, during or -after the war between the States. Before emancipation, slaves were incapable -of forming the legal relation of husband and wife. But by the encouragement of their owners, the relation of husband and *231wife was entered into between them, and wliile in law, these were not binding and legal marriages, there was moral force and obligation in them.—Washington v. Washington, 69 Ala. 281.
After emancipation, in order to ratify marriages between freedmen and freedwomen, and to legitimate the issue of such marriages or cohabitations, the convention of the people on the 29th September, 1865, passed an ordinance declaring among other things, that “in all cases of freedmen and freedwomen, who are now living together recognizing each other as man and wife, be it ordained that the same are hereby declared to be man and wife, and bound by legal obligations of such relationship.”
“The issue of such marriage or cohabitation are hereby legitimatized, and shall be held to the same relations and obligations from and to their parents, as if born in lawful wedlock.” — Ordinance 39, Code 1867, p. 64.
The evidence for the plaintiffs tended to show, that Jacob and Phoebe “lived together as husband and wife prior to the Avar between the States, and continued to live together after the surrender,” and that Phoebe died in 1866 — the year after the surrender.
The evidence on defendants’ part was to the effect, that Phoebe died before the surrender.
There Avas no conflict in the evidence, however, as to the fact that Jacob and Phoebe Iwed together as husband and Avife up to the time of her death, when-OArer that event may haAre occurred. If she did not die earlier that the 30th of September, 1865, as the evidence of plaintiffs tends to sIioaa', she and her husband came under the operation of said ordinance of that date, which made them man and wife, and their children legitimates', as if born in lawful wedlock.
There Avas no error, therefore, in charge 2, given for plaintiffs, in so far as it assumed that Jacob and Phoebe lived together as man and wife; for, as stated, that was clearly proved, and is an undisputed fact in the case. Carter v. Chambers, 79 Ala. 223; Marks v. Robinson, 82 Ala. 70; Drennen v. Smith, 115 Ala. 397. Nor was said charge erroneous in postulating plaintiffs’ right to recoA-er, upon the death of Phoebe not earlier than *23230th Sept., 1865. Whether she died earlier, or on or after that date was properly hypothesized in the charge. As to Phoebe’s death, the charge in substance and effect is, that if she died on or after the date mentioned, plaintiffs were entitled to recover, which was a correct statement of the law.
The defendant introduced in evidence the license for the marriage of Fred Sumter and Jane Jones, of date January 12, 1881, and the bond required in such cases. The object of this evidence was to fix, as these papers tend to do, the date of Fred’s birth, who was the youngest child of Jacob and Phoebe, and this, with the view, in connection with the other evidence, to show that Phoebe died before the end of the, civil war. Charge 3 given for the plaintiffs placed this marriage record in the class of evidence to -which the statute assigns it — presumptive and not conclusive proof of what is required to be recorded. — Code, §§ 2846-7; 14 Amer. & Eng. Ency. Law (1st ed.), 524.
We find no error in the proceedings of the circuit court and its judgment is affirmed.
Affirmed.