
    
      Christina Chapman vs. Davis Cooper. Same vs. Isham Cooper. Same vs. Elijah Cannon.
    
    Issue in dower: more than fifty years before the trial the demandant was married to one P., who, shortly after the marriage, went off and never returned: some five or six years afterwards she was married to C., in whose lands she now claimed dower: about the time of her marriage to C. there were rumors both of P’s death and of his being alive: she lived with C. as his wife, until about twenty years before the trial, when she went off on account of his ill-treatment of her. Held, that the fair presumption arising from the circumstances of the case, the lapse of time, and the rule that innocence is to be presumed, was that P. was dead at the time of the second marriage, and, therefore, that the marriage to C. was valid.
    In recent transactions, belief is founded on proof, but in matters of antiquity, when time has swept away the witnesses of any fact, the law comes in and supplies the place of proof by presumptions.
    Although under the stat. 1 Jac. I, c. 11, sec. 2, the presumption of death arising from seven years absence unheard of, may be only as to the fact and not as to the time of death, yet, where the presumption is based upon the common law period of twenty years, it is, that the death occurred at the commencement of the period.— Semble.
    
    Though the law may presume the continuance of life for seven years, yet it also presumes against the commission of crime: where, therefore, a wife marries within seven years from the time her husband went off, the presumption of innocence, with circumstances, may outweigh the presumption of the continued existence of the husband.
    
      Before Wardlaw, J. at Pickens, Spring Term, 1852.
    These were all issues in dower. In the case against Davis Cooper, the report of his Honor is as follows.
    
      “ The main question was, whether the demandant had been the lawful wife of John Chapman, lately deceased, under whose seizen she claimed. The principal witnesses were William Hubbard, senior, her brother, now 91 years old; Enoch Chapman, younger brother oí John; and Nathaniel Lynch, a neighbor of John’s. The substance of their testimony is as follows:
    “ William Hubbard. — I was married when I was 23 years old. Many years ago, after my marriage, my mother and sister Christina lived together on the same plantation that I lived on, about five miles from Newberry Court House. A man who called himself Hubbard came into the neighborhood, and (as it was said) was married to Christina, but I was not present at the marriage. As her husband, he lived with her a short time— two or three days — some nights, (according to the yarying expressions of the witness,) then there came a flying rumor (.or some of the neighbors heard, in some way unknown to me) that this man was a rascal, going about to deceive girls, picking up a wife here and another, there, and that he had a wife over Broad river, on Sandy river, 12 or 14 miles, or 30 or 40 miles off; thereupon, I and others drove him off. Then, or afterwards, I heard that his name was Pulliam. I never saw him again. I heard that he was put into jail for horse-stealing, and after .a while there came a report that he had been hung. I never heard any thing more of him.
    
      "Christina had a child called Nancy, born one or two years after Pulliam went off. I don’t know who was Nancy’s father, nor that she was called Pulliam or by any name but Hubbard ; Pulliam could not have been her father. Ten years after my marriage we moved into Pendleton. After our removal, and four or five years after Pulliam went off, or when Nancy was four or five or five or six years old, Christina was, in my presence, married to John Chapman, by Mr. Murphy, a Baptist preacher, who lived eight or ten miles from us, in Pendleton district. This was long ago — fifty years ago or more — six or seven or ten or twelve years after I was married, when I was about forty years old ; I know I am now 91. Afterwards Christina bore Joe and other sons — all called Chapman — and she and John Chapman lived together as husband and wife for many years, until he treated her shamefully, and she went off to Georgia.
    “ I lived four or five years in Newberry after Pulliam went oif. I never heard the name of Pulliam’s former wife, nor any thing more about her.
    
      “ Enoch Chapman. — I may have been at the marriage of my brother John to Christina, but was too young to know any thing about it. I often heard my father and mother say that ’Tina was not John’s lawful wife — for that she had been married to one Pulliam; when John married her, there was a report that Pulliam was dead, but afterwards news came of his being alive. I recollect nothing said about Pulliam’s having had another wife. My mother said that John was very young when he married, and was going to quit ’Tina because Joe came too soon, but she thought he would not do any better, and persuaded him to stay with her. ’Tina was an industrious woman, and made John a good wife, although both he and she drank always,— drank too much; but he treated her so badly that she could not stand it, and she went off to Georgia about twenty years ago— John remaining here until he died, two years ago.
    “ Nancy was commonly called ’ Tina's Nancy, but her name was Ptilliam; by that name she was called in a title for lands which John made to her after she was grown up, and that was the name she had always gone by in the family. Joe was called Joe Hubbard ; Christina’s other son’s went by the name of Chapman.
    
      “ Nathaniel Lynch. — I became acquainted with John Chapman and Christina after their marriage ; they were considered husband and wife, and did remarkably well, till he behaved outrageously, when she-took to drink and afterwards went off to Georgia. Nancy was called Pulliam, when some writings were executed, after she was grown; what sirname she had before I do not know. Joe was said to have come too soon, and was not acknowledged by John Chapman as his son. There were other sons called Chapman. I heard talk of Christina’s having been married to Pulliam — of the reports about his having been hung, and then of his being alive — but never of his having had another wife.
    “ With no feelings adverse to the demandant, I submitted the facts to the jury with suitable instructions.
    “ The marriage to Chapman being conceded, I held that it must be considered valid, unless it appeared that Christina had then a husband living. The cohabitation of Pulliam with her, coupled with the reputation of her marriage to him derived from her brother and prevailing in her family, was, I thought, competent evidence of that marriage; and if, from this evidence, the jury should be satisfied with the fact of that marriage, its validity depended upon the question — did Pulliam then have a wife living? Upon this question, I observed, amongst olher things, that there was a difference between a rumor coming no one knows how, and a reputation as to a marriage derived from the family of one of the parties to it. If the jury should not be satisfied that Pulliam had a wife living when he married Christina, the question then would be, — was he dead when the marriage with Chapman took place ? The presumption of his continuing to live, I held, would prevail until it was rebutted. As to the rebuttal by report of his having been hung, that, I remarked was rumor — mere hearsay — distinguished from the declarations made by persons who were in a situaiion to know, which would suffice to establish death and other matters provable by reputation. As to the rebuttal, by the lapse of seven years without his being heard of, I left the jury to judge of the evidence, saying that a presumption of death would arise from this lapse of time, but the required time must itself be proved to the satisfaction of the jury, by the party who claimed the benefit of the presumption to be derived from it.
    “ The jury, No. 2, found for the defendant.”
    The cases of the same demandant against Isham Cooper and Elijah Cannon, which were similar to the preceding one, and were tried separately upon the same evidence, went, the first to jury No. I, who found for the demandant, and the second to jury No. 2, who found for the defendant.
    In the case against Isham Cooper,■ the defendant appealed, on the grounds,
    1. Because the marriage of plaintiif to Pulliam having been satisfactorily established, to entitle her to dower she should have shown, conclusively, either that, at the time of her second marriage to Chapman, Pulliam was dead, or that the first marriage was invalid, which she failed to do.
    2. Because the finding of two successive verdicts, by another jury, against plaintiff’s claim for dower, upon testimony similar to that offered in this case, creates such a reasonable doubt as to plaintiff’s right to recover, as to entitle the defendant to a new trial.
    3. Because the verdict of the jury was not warranted by the evidence.
    And in the cases, against Elijah Cannon and Davis Cooper, the demandant appealed, on the grounds,
    1. Because it was in proof that the widow and her deceased husband had lived together and been recognized as man and wife for fifty years ; which ought to have been sufficient proof of their marriage to authorize the jury in finding her dower.
    2. Because there was proof conclusive of the marriage by a respectable witness, who was present on the occasion, and no presumptions should have been allowed by the Court to annul the marriage, in opposition to this proof of its legality.
    3. Because his Honor charged the jury that the reputation in the family of the widow, that she had been previously married to a man by the name of Pulliam, was sufficient proof of such marriage, and ought to destroy the legality of the second marriage.
    4. Because his Honor charged the jury that the reputation in the family of the widow, that this man Pulliam had another wife living at the time of his alleged intermarriage with the de-mandant, twelve or fourteen miles' distant — that he was in the habit of going about over the country and getting married wherever he could — and that he was driven off by the friends of the demandant, in two or three days after his supposed intermarriage with her, would not justify the jury in finding the legality of the widow’s marriage with John Chapman, her deceased husband.
    5. Because his Honor charged the jury that the lapse of time between the running off of Pulliam and the intermarriage of demandant with John Chapman, would not authorize them to find that marriage valid and legal, although the testimony of Mr. Hubbard showed it might have been seven years, and Pul-liam was not heard of during that time.
    6. Because his Honor charged the jury that the reputation in the family of the demandant that Pulliam was hung before the marriage of herself and Chapman, could not be received by them as proof of the legality of such marriage.
    7. Because the proof adduced to the jury, of Pulliam’s having a wife, or several wives, living at the time of his supposed intermarriage with the demandant, together with the lapse of lime between his going off and not being heard of and the marriage of the demandant and Chapman, and also the reputation in the family that he had been hung before this marriage, should have forced the jury to find the same valid and legal after an interval of fifty years.
    8. Because the presumptions of law should be in favor of marriage, and yet his Honor charged the jury that they must not presume seven years had elapsed after the absence of Pul-liam before the marriage of Chapman and the demandant, but require strict proof of the same from the demandant.
    
      9. Because the finding of the jury was contrary to law and evidence.
    10. Because his Honor charged the jury that the information of witness, Hubbard, in regard to the marriage of his sister with Pulliam, was reputation, and, therefore, legal evidence, but the witness’s information, as it regarded Pulliam’s having anothor wife, was rumor, and not to be received as evidence.
    Perry, for the demandant,
    cited Jackson vs. Claw, 18 Johns. R. 346; Proctor vs. McCall, 2 Bail. 298 ; King vs. Twyning, 2 B. & Al. 385.
    
      Young, contra.
   The opinion of the Court was delivered by

Evans, J.

In these cases we must assume that the plaintiff was lawfully married to Pulliam, and that she married Chapman before the expiration of seven years from the time Pulliam left her. There were rumors both of his death and of his being alive, but no certain evidence of either was adduced. If he was dead, then the second marriage was lawful. If not, then it was unlawful, and the plaintiff is not entitled to dower in the lands of the second husband, for the recovery of which these actions are brought. A period of more than fifty years has elapsed since the date of these transactions, and it is argued that from the great length of time, we ought to presume every thing which is necessary to give validity to the second marriage. In recent transactions, belief is founded on proof, but in matters of antiquity, when time has swept away the witnesses of any fact, there can be no proof. In such cases, the law comes in and supplies the place of proof by presumptions. “ We infer the existence of one fact from the existence of another fact, founded on our previous experience of their connexion.” Where all who axe interested in a fact have, by their conduct, treated it as true, the law presumes it to be so, reasoning from the known principles which actuate human conduct. If one has had undisputed possession of land for twenty years and more, we presume he had a title, because it is the conclusion to be drawn from his own conduct, and the conduct of those who were interested to dispute it if it were not so. The fact to be presumed in this case is, the death of Pulliam before the second marriage. The facts are, that more than fifty years ago he left his wife. His actual existence since that time has not been proved. There were rumors of his death, and the contrary. His wife married again, and the legality of that marriage has been acquiesced in by all who were interested in it.

If the question were now, whether he is dead, I suppose there would be no difference of opinion, whether we regarded it as a question of belief or of legal presumption. But this does not solve the question made in the case: — Did he die before the second marriage ?

In the case of McLeod vs. Rogers & Gardner, (2 Rich. 19,) it was held that the presumption of a grant was coeval with the commencement of the possession from which its existence was presumed, and, therefore, the original possession began with title and not in trespass. I think the same is to be inferred from all the cases which have been decided on the principles of the common law.

But there is another rule, in relation to the presumed duration of human life, which has grown out of the stat. 1 Jac. I, c. 11, sec. 2, which exempts one from the penalties of bigamy, whose husband or wife has been absent, and not heard from in the space of seven years; and of which our own statute, on the same subject, is, I think, an exact copy. In the construction of that statute, it has been held, that the only presumption which arises is that of death, and none as to the time of death. 5 B. & Ad. 86 — Knight vs. Nepean, (27 Eng. C. L. Rep. 42). Whether that construction arises from the peculiar wording of the statute I know not, but I can see no reason why, when the presumption depends on the common law acquiescence of twenty years and upwards, we should be restrained from giving the presumption the same effect as to time, that we give to other presumptions.

But there is another view of the case which is in harmony with the rule above stated, in relation to the presumption arising from seven years. If the law presumes the duration of human life for seven years, it also presumes that the plaintiff would not commit the crime of bigamy. These are what are called conflicting presumptions, and came under consideration in the case of Rex vs. Twyning, (2 B. & Al. 386). That case was a question of settlement in a Parish. The woman was the wife of a soldier who went abroad and was never heard of afterwards.— She married again in a little more than twelve months after his departure, and the question was, whether the issue of the second marriage were legitimate? Bayley and Best, who heard the case on appeal from the Sessions, held that they were. It was considered as a case of conflicting presumptions, and the question was, which was to prevail. It was said — “the law presumes the continuance of life for seven years, but it also presumes against the commission of crime. It is contended the death of the husband ought to have been proved, but the answer is, that the presumption of law is, that he was not alive, when the consequence of his being so, is that another person has committed a crime.” The correctness of the application of the rule to a case where the husband had been absent so short a time, was afterwards questioned in the King’s Bench, in Rex vs. Harborne, (2 A. & El. 540; 29 Eng. C. L. R. 161). But the principal objection seems to have been, that in the former case, it was laid down as a strict rule of law, and not a ;presumptio juris, good until rebutted. Best on Pres. 61, (37 Law Lib). It is very clear the jury may find the death from the lapse of a shorter period than seven years, if other circum? stances concur. 1 Grenl. Ev. § 41. I agree with Lord Denman in the case of Rex vs. Harborne, that there can be no rigid presumption of law on such questions of fact, without the accompanying circumstances, but I think the facts of the case added to the presumption that the plaintiff is innocent of the crime of bigamy, should have prevailed over the naked presumption that Pulliam was alive at the time of the second marriage, because it was proved he was living five or six years before.

We think the jury, in the first and third cases above named, did not give to the circumstances of the case and the presumption of innocence, their due importance and legal effect, and, therefore, the motion for a new trial in these cases is granted.— In the second case, in which the jury found for the- demandant, the motion is dismissed.

O’Neall, Frost and Whitner, JJ. concurred.

Wardlaw, J.

I concur in the result of these cases, but not in all the intimations of opinion which have been made.

If the cohabitation between the demandant and Chapman was adulterous in its inception, mere lapse of time, without other evidence of a subsequent marriage, would not alter its character.

Upon the question whether Pulliam was dead at the time of the marriage to Chapman — the main question of fact in the case — the jury should decide according to the presumptions of law and the belief induced by circumstances which may be shown by proper evidence. From absence, unheard of, for seven years, the fact of death is presumed, but not the time. To fix the time at the end of the seven years would be almost always contrary to the fact — to fix it at the beginning, immediately after the continuance of life had been positively ascertained, would be plainly contrary to truth and common sense. Circumstances may enable a jury to say when it took place, or that it preceded a given event within the seven years. But there must be some circumstances to overcome the presumption that life continues for at least seven years; or if that presumption has been overcome by the lapse of the seven years, to fix at one period rather than another, the time of death left wholly uncertain ; and these circumstances must be shown by the party whose interest it is to establish the time of death anterior to the expiration of the seven years. Hearsay — rumor—report, as distinguished from reputation, cannot be such a circumstance : nor, as I think, can, in a case like this, be the fact that a wife has married within the seven years, and that the presumption of her innocence of the crime of bigamy requires the previous death of her first husband to be presumed. That would be applicable in an indictment against her for bigamy, or in a case between third persons wherein the validity of her second marriage was involved, or even in a case where the legitimacy of the children of her second marriage was considered, apart from their rights as her representatives. But in a case where she herself is de-mandant, she must prove whatever, being denied, is essential to the rights she demands: and she can no more rely for evidence upon her own acts than upon her own declarations.  