The opinion of the court was delivered by
Mr. Justice McGowan.This was an action for a lot of land on the west side of St. Phillips street, in the city of Charleston, known as No. 125. The question was purely one of title.
The plaintiff put in evidence: 1. A copy of deed of the premises from James K. Bobinson to E. Wilmot Walter in trust for Scipio Stewart, his heirs and assigns forever, bearing date April 26th, 1847. 2. Copy of a deed of marriage settlement between Mary A. Stewart, widow of Scipio, with her second husband,- Peter Conerway, which, after reciting that *207George H. Walter, as trustee, was seized in fee of the lot, provided that he should still continue to hold the same “ for the said Mary Ann, free from the control of any husband she may have, for the term of her natural life, and after her death then to her son William or his children, should he or any child of his be then living. But should he die before the said Mary Ann, then in trust for such uses and purposes as the said Mary Ann may by will or deed appoint.” 3. Will of Mary Ann Conerway, December, 1881, giving her executors power to sell the lot — her son William having died before, in 1867, unmarried and without issue. 4. Deed of the executors of the will of Mary Ann to Dingle, as purchaser, April 7th, 1882.
Scipio Stewart was a free man of color, and lived with his wife, Mary Ann, who was also generally supposed to be a free person of color; but there was testimony tending to show that Mary Ann was originally a slave, and that many years ago (the precise time does not appear) she was purchased by her husband, Scipio. It is certain that as husband and wife they went into possession of the lot soon after it was purchased from Eobinson, in 1847, and lived there as free persons of color until Scipio died intestate, in 1852, leaving as his widow the said Mary Ann, and her son William, who claimed the lot and occupied it until the death of Mary Ann, in 1881, William, the son, having previously died without wife or children. Mary Ann left a will, authorizing her executors to sell the lot, which they did, and at their sale the plaintiff, G. W. Dingle, became the purchaser and now claims the" same through the said Mary Ann.
It seems that Scipio Stewart had sisters, who were slaves. The defendant, Mitchell, is one of the children of the sister Nancy, and he and his mother, now deceased, were both born slaves. The said Mitchell, after the death of Mary Ann, having in some way or other obtained possession of' the said lot, now claims it as one of the heirs-at-law of Scipio Stewart, who died thirty years ago.
The case came on for trial before Judge Pressley, who refused a motion for non-suit, and, under his charge, the jury found for the plaintiff, Dingle. The defendant appeals to the court upon the following exceptions:
*2081. “Because his Honor erred in admitting in evidence copies of the following deeds without proof of the loss of the originals, viz.: A deed from James K. Robinson to E. Wilmot Walter in trust for Scipio Stewart.' A deed from Mary Ann Stewart and Peter Conerway to George H. Walter.
2. “ Because his Honor erred in not granting a non-suit on the ground that the plaintiff had not traced his title back to a grant from the State nor to a common source, as asked for by the defendant.
3. “ Because his Honor erred in ruling that Mary Ann Stewart had been in possession of the premises for twenty years when there was no evidence to prove the same.
4. “ Because Mary Ann Stewart, if she had title at all, acquired it as heir of Scipio Stewart, and there was no proof that she was ever married to the said Scipio Stewart, and his Honor erred in not so ruling.
5. “Because his Honor erred in refusing to charge the jury that if they believed Scipio Stewart was a free person of color and Mary Ann a slave, they could not find a verdict for the plaintiff, as a slave could not own property in his own right, nor could he hold adverse possession against the world.
6. “ Because his Honor erred in refusing to charge the jury that if they believed Scipio Stewart was a free person of color and Mary Ann a slave, William Stewart, their child, was illegitimate, and took nothing at his father’s death.
7. “ Because his Honor erred in refusing to charge the jury that the legislature of this State had made no provision for the issue of a free person of color and a slave; but that the legislature has made provision for the issue of slaves, whereby they may inherit their ancestors’ property.
8. “ Because the plaintiff’s case was fatally defective, in that Scipio Stewart was a free person of color; Mary Ann, who claimed to be his wife, a slave, and'neither Mary Ann nor her son, William, could take property under the statute of distributions of this State. That the sisters and brothers of Scipio Stewart, at his death, were his next of kin and lawful heirs, and if at the time they were laboring under a disability, and died laboring under said disability, leaving children, from whom the disability *209was afterwards removed, they (the children of such sister or brother) became the legal heirs of such intestate, deceased, and his Honor erred in not so ruling.
9. “Because his Honor erred in charging the jury on questions of fact and giving them his opinion thereof.
10. “ Because his Honor erred in charging the jury as follows: ‘ His (Scipio Stewart’s) heirs-át-law are his widow and his son, "William and Mary Ann Stewart, unless she was a slave. If she was a slave she could not inherit. If-you believe that she was a slave, her son William cannot inherit either. Neither of them could inherit, and it is perfectly clear that none of these parties could inherit, the proof being that all of his brothers were slaves.’ ”
Exceptions 1 and 2 complain that the judge erred in not granting a non-suit; first, because there being no evidence of the loss of the originals, it was error to admit in evidence the deed from Bobinson to Walter in trust for Scipio Stewart, and the marriage settlement of Mary Ann Stewart and Peter Conerway; and second, for the reason that the plaintiff did not prove a perfect title or trace it back to a common source, from which the defendant also claimed. The objection as to the proof of the deeds does not touch the merits of the case, for we suppose there can be no doubt, that the deeds were executed as they appeared recorded. The presiding judge says “the deeds were put in evidence without objection at the time.” The time to object was when they were offered and taken down by the judge as in evidence. If objection had been then made, we must assume that the proof of loss would have been made. This court has held that “ what proof of loss of a written paper is sufficient to permit secondary evidence of its contents is, to a large extent, a question of fact to be decided by the judge, and his discretion will not be disturbed except in very rare cases.” Oliver v. Sale, 17 S. O. 587. ■
As to the proof of title in Mary Ann, under whom the plaintiff claimed, the rule, as announced in the case of Young v. Watson, 1 McM. 449, is that “ a plaintiff can only make out a perfect title by producing a grant or by proving such a possession as will give *210title in himself or in some one from whom he derives title.” The judge held that “ she (Mary Ann) must trace title to a grant, but that twenty years’ adverse possession, where there are no disabilities, is equivalent to a grant from the State, and the presumption is that the grant was at the beginning of her possession.” "Whether there had been such possession was a fact for the jury, and we cannot, therefore, say that the judge erred in refusing the non-suit. We might add that the plaintiff did trace title to a common source. In our view of the case, certainly both Mary Ann and the defendant claimed by descent from the same person, Scipio Stewart, who undoubtedly had the legal title under the operation of the statute of uses.
Exceptions 4, 5, 6, 7 and 8, in different forms, allege error on the part of the judge in refusing to charge as matter of law that .plaintiff’s title was fatally defective for the reason that Mary Ann, although purchased by her husband and living with him as his wife, continued to be, technically, a slave, and subject to all the disabilities of slavery, one of which was an inability to make a legal contract of marriage, and, as a consequence, to be either an heir herself or the mother of an heir. As the defendant suggests, ■suppose we assume this to be good law, the result would necessarily be that there could be no inheritance at all or title by the statute in this case, but the land would be forfeited to the State for the want of an owner. Eor it is undoubtedly true that the sisters of Scipio and their children, including the defendant, were also slaves and under the same disabilities.
It is replied, however, that there was a general emancipation of all slaves in 1865, and after that the legislature of the State passed certain laws legalizing the marriage of persons who were in bondage at the time they were contracted, and declaring that the issue of such marriage might inherit from their parents and from each other according to the statute of distributions (see Davenport v. Caldwell, 10 S. C. 332). Taking then the statute of distributions as fixing the canons of descent applicable to these people, it is plain that the widow and child should inherit from Scipio in preference to his sisters or their children.
But it is earnestly insisted that the aforesaid enabling acts, when properly construed, refer to and embrace only marriages entered *211into by parties who were at the time both slaves, and were not intended to include a marriage contracted between a female slave and a man of color who was at the time free, leaving such marriage, as in this case, illegal, and the issue thereof illegitimate. We do not so understand the acts referred to. The man Scipio, being a free man, was under no disability in respect to marriage. He had the right to make a legal contract of marriage and to have legitimate children, but upon the assumption that Mary Ann was still a slave, she was under a disability which touched Scipio’s marriage with her, and made his child, William, illegitimate. But this was the very result the enabling acts were intended to prevent. No such distinction as that contended for can be found in the acts themselves, and such a narrow construction would violate their whole spirit and intent.
On the contrary, the terms of these acts show that they were intended to be as general as the mischief they remedied, and to apply as well to a marriage of a female slave with a free person of color as to cases where both parties were slaves. “ Cohabitation, with reputation or recognition of the parties, shall be evidence of marriage in cases criminal and civil.” * * * “Every colored child heretofore born is declared to be the legitimate child of his mother and also of his colored father if he is acknowledged by such a father,” &c. 13 Stat. 291. As was said in the case of Davenport v. Caldwell, supra: “ This section is unquestionably retrospective, and applies to the dead as well as the living.” In this view the enabling acts applied to the marriage of Mary Ann with Scipio even if she was a slave at the time, and made William the legitimate child of Scipio and capable of inheriting from him. At the death of Scipio, Mary Ann was entitled to one-third, and William, his son, to two-thirds of the lot. Upon the death, of William, without wife or children, his mother inherited the whole interest, and the same passed under her will to the plaintiff.
But did Mary Ann necessarily remain a slave until the general emancipation of 1865, and under disability to take and hold property until the passage of the enabling act in 1872 ? Gen. Stat., § 2031. The judge charged the jury that if they believed “ that Scipio Stewart bought his wife with the intention of her *212being free, and she enjoyed freedom for twenty years, the law presumes that he did all that would, legitimately, make her free, and he could have done so by taking her into another State.” Was this error ? It is true that by .the laws of force in this State in 1846 no slave could be emancipated in the State except by an act of the legislature. But it was held in the case of Willis v. Jolliffe, 11 Rich. Eq. 447, as late as 1860, “ That there is nothing in the policy of the law of this State against a master taking his slaves to a free State and there emancipating them himself.” It was not impossible, and the jury were told that if they believed that Scipio bought his wife with the intention of making her free, and she enjoyed freedom for twenty years, the law presumes that he did all that was necessary to make her free, and the presumption is that the grant was before her possession. We cannot say that this was error.
It was surely not error to leave it to the jury to decide whether the husband purchased his wife with the intention of making her a free woman. The court could not assume conclusively that he did the unnatural thing of buying his wife in order to keep her as his own property. It seems that at the very least, from 1846 to 1852, when Scipio died, Mary Ann lived with him as his wife, and thenceforward until she died, in 1881, being over thirty years, always treated and considered as a free person of color, and certainly after 1852 was in the quiet and exclusive possession of the premises in question. “After a lapse of twenty-eight years an executor’s assent to a legacy of freedom to a slave was presumed.” Bowers v. Newman, 2 McM. 486. “ When a negro slave has been at large and acting as a freeman for more than twenty years a deed of manumission under the act of 1800 was presumed.” “ The court will presume whatever is necessary to give efficacy to long possession.” Willingham v. Chick, 14 S. C. 103.
Considered with reference to the context, in which it was said, and without regard to the enabling act stated, we do not think the judge transcended the limit imposed by the constitution when he charged the jury as follows: “ His (Scipio) heirs-at-law are his widow and his son William and Mary Ann Stewart, unless she was a slave. If she was a slave she could not inherit. If you believe she was a slave, her son William cannot inherit either. *213Neither of them could inherit,.and it is perfectly clear that none of these parties could inherit, the proof being that all of his bi’others and sisters were slaves.”
■ The judgment of this court is that the judgment of the Circuit Court be affirmed.