
    
      Martin McCarty v. William McCarty.
    
    An Act of the Legislature, after twenty years’ possession and use, may be presumed. Like a grant, it may be presumed, notwithstanding the public records show that no such thing existed. This, however, is altogether confined to cases in which the Legislature might or might not act; it cannot apply where, from the Constitution, or a sort of common law of our own, the Legislature never have and never will act.
    The marriage contract being, in this State, regarded as indissoluble by any human means, an Act of the Legislature, granting a divorce, cannot, under any circumstances, be presumed from lapse of time.
    
      Before O’Neall, J. at Edgefield, Fall Term, 1847.
    This was an action of trespass to try title. The plaintiff claimed and derived title from one Bathsheba Worthington, who, in ’99 or 1800, was legally married to Robert Worthing-ton. They lived together a very short time, and then separated. Worthington left the State, and was gone more than ten years; he then returned, and after many years married another woman, in Newberry, and finally removed to Alabama, where he is now residing. Bathsheba, in the meantime, lived in Edgefield, where they resided when married. She acquired real and personal estate, in 1819, and exercised all the rights of a fenvine sole. The land in dispute she bought, and then sold it to the plaintiff, and by deed conveyed it to him, in 1844. He entered upon the land, and is now living upon it. The part in dispute is covered by the title of Bathsheba Wor-thington. The defendant shows no title to it: he has a part of it in cultivation. During the long separation of forty years, Worthington, the husband, never at all asserted any of his marital rights to either the person or property of his wife.
    To bring the legal question before the Court of Appeals, and to separate it from the question of location, which was fairly submitted to the jury, and on which they found for the plaintiff, his Honor charged them that after such a lapse of time, they might presume a divorce, by Act of Legislature. — • The defendant appealed, and moved for a nonsuit or new trial, on the grounds—
    1. That the plaintiff exhibited no right to prosecute this action, either by title or possession, inasmuch as the release from Bathsheba Worthington to him was void, by reason of her coverture, and he had never been,- and the defendant was, in actual possession of the premises m dispute.
    
      2. That the presiding Judge erred in ruling and in instructing the jury that it might be presumed, from separation by a wife from her husband for twenty years, although the husband remained within the limits of the State, that the wife had become discovert, and entitled to convey as a single woman.
    3. That the presiding Judge erred in instructing the jury that they might presume from a separation of twenty years between husband and wife, although he continued to live within the State, that an Act of the Legislature had been passed, authorizing the wife to convey land of which she had been in actual possession ten years, against proof that no such Act had been passed, against the settled policy of the State, as to marriage and divorce, and against the interest of married women in such case.
    4. That the presiding Judge erred in deciding as a question of law, and not of fact, to be submitted to the jury, tfiat the deed of a married 'woman, under the circumstances of this case, was valid to bar her own rights and those of her husband.
    Carroll, for the motion.
    Divorces are contrary to our laws. The power to divorce has been withheld from our Courts, and has never been exercised by our Legislature.— They then are not to be presumed. Husband and wife cannot, by agreement between themselves, alter their legal condition and liability. Inferences therefrom, then, cannot aid. a presumption of divorce. A divorce cannot be proved, for in our State it cannot exist. The possession of Mis. Worthing-ton is relied on, in this case, but her possession was the possession of her husband. They are as one flesh and blood.— 1 Coke Lyt. 130. If the possession were hers,' could she convey? It is to her conveyance -that we object. Can an infant convey, even if the title is good in him? Woman is protected by this state of things — she is under coverture, <fcc. If this woman could not convey a good title, could she do more •with her mere possession? We set up a title in her husband, to prove that the plaintiff cannot show title in' himself, as he is bound to do. The possession of the wife is not inconsistent with the husband’s right; it is as that of a trustee for his. cestui que trust. It could not be adverse, for that would be ouster of the husband. Plow, against her, could he have acted? Has the law provided any remedy? Vide 2 Starkie on Ev. 561, title Prescription. Could the husband have conveyed his rights? Who has taken them? He surely could not. Can the woman have regained her rights? Will the Court presume any of these things ? A man cannot convey to his wife: they are the same person. Will it be said that she has practically resumed all the rights of a femme sole ? What was she to do ? Her husband threw her off, and she was to be fed, &c. A marriage contract cannot be presumed to be dissolved by the long separation. ShefFord oh Marriage, 579 ; 1 Haggart’s Consistorial Rep. 135.
    A wife cannot sue as a ferrnne sole. — Boyce v. Owens, 1 Hill, 10; 8 Term Rep. 545. The husband being an alien friend, makes it doubtful whether the wife can be sued. The wife of a foreigner, absent, cannot be sued alone: he is expected to return. — Chit, on Con. 178. It is different where the realm has been abjured, or civil death presumed, from seven years’ absence of the husband.. — 1 Jacob’s L. Die. title Abjuration, and Coke Lyt, 155. The question of the lapse of time cannot be taken advantage of by demurrer. So it is a mixed question of law and. fact. — 3 Brown’s Ch. Rep. 646.
    Griffin, contra.
    
    Pope, contra.
    
    The rights of third parties are involved in doing away with all the- many presumptions in this case.— We contend that Mrs. Worthington was not a married woman when she conveyed this land — that she never was married. The Court may presume Worthington to have been dead. A generation has passed away: identity has been lost, &c. The Court may presume against the fact, (as in Riddle-hoover v.-Kinard, 1 Hill’s Ch. Rep. 376,) to quiet title and work other good results. A private act of the Legislature may be presumed, (as this divorce,) or one to invest her with the. rights of a fermne sole. If the marriage is sustained, it may be presumed that he gave her, by deed, power as his agent, to sell for him. — 3 Crews, 20, title 32, Deed, chap. 2, sec. 25. The deed need not recite the power to convey.— 3 Crews, 256, chap. 16, sec. 33; vide the case of Miller v. Reignie, 2 Hill, 592; and Godfrey v. Schmidt, Cheves Eq. 67. In the case at bar the rights of third persons alone are affected: neither of these two persons claim any marital rights. A presumption after twenty years, is not a presumption for a jury, of fact, but a presumption for the Judge, and a jury cannot find against it.
    Waudlaw, for the motion.
    A presumption is the belief of a thing, from its connection with a known thing. — 1 Pothier, 478; Best on Presumptions, 110. The presumption should be a fair inference from the facts proved. We object to this specific presumption. Divorces are inhibited by the laws of God — the highest of laws. They are contrary to the settled policy of our State. Presumptions formerly were of usage, easements, &c. — 2 Barn. & Cress. 54, and could not stand, however ancient, against known law. A marriage contracted here cannot be dissolved by a foreign power. Marriage is more than a contract — it is of religious consequence — a sacrament, in Catholic countries. Boyce v. Owens is the first case hinting at the lapse of twenty years as sufficient to raise a presumption of its dissolution. — Vide King v. Johnson, 2 Hill Ch. Rep. 624; Proctor v. McCall, 2 Bail. 298; Marshall v. Sutton, 8 Term Rep. 545. Civil death or abjuration of the realm is alone sufficient. The power of return in the husband prevents any time from raising the presumption.— Vide 2 Wm. Blk. 1082; 2 Wm. Blk. 1195; 2 Bosanq. & Pul. 231. 2 Kent’s Com. reviews the English cases. — 1 Bosanq. & Pul. 357 ; 1 Bing. 292; Beach v. Beach, 2 Hill N. Y. Rep. 260. Where marriage was only presumed at first, facts may disprove it, or other presumptions weaken it. Presumptions juris et de jure are irrebuttable.. — • Vide 11 East, 301; Lewis v. Nee, 3 Barn. & Cress. 84. An existing thing, once proved, is presumed to continue to exist, until the alteration is proved. Dudley Eq. 221. There is no proof that this man is not this woman’s husband now. Could he not, at any time, have resumed his marital rights 1 It was proved that she took the land in dispute, as his wife. The exercise of the right of a femme sole by a wife, can only be permissive.— Vide 2 Stark. Ev. title Presump. 683; Best on Presump. 20. Presump-tiones juris are those which are inconclusive. — Best on Pre-sump. ch. 4, 52. Conflicting presumptions of law are to be decided by the Judge — of fact, by the jury. — Best on Pre-sump. 168; 12 Yesey, 266. The doctrine of presumptions is applied in very ancient cases, because proof cannot be obtained. In England it goes only beyond the memory of man —here twenty years are to govern in all cases. The case in 
      12 Coke’s Rep. shows how ancient those cases are to which presumptions are applied. There is a very manifest distinction between this case and the ordinary cases, in which twenty years are sufficient to raise the presumption.— Vide 2 Brev. Dig. 41, note, title Marriage; Carolina Law Jour. 95; 2 Stat. at Large, 476 ; 2 DeSaus. Ch. 646, note; Sheff. on Mar. and Divor. 363; 1 Hill Ch. 511; Cheves Eq. 57. After a ■lapse of seven years the wife may marry, but if the husband return the marriage is null and the offspring bastards. — 3 ¡Manning & Ryland’s Rep. 329, note ; Skinner, 78; 1 Cowper, 21.5. These cases do not admit of the presumption of a private Act of Parliament.
   O’Neall, J.

delivered the opinion of the Court.

This case was before this Court at its last term. The objection that a link in the plaintiff’s chain of title, a deed executed by a femme covert, separated, however, from her husband more than forty years, was then presented. The Court did not think proper to regard it, and ordered the case back for another trial, on the question of location.

Not being present at the last term, I had no other knowledge of the opinion of my brethren than what I could derive from their written judgments. Taking it for granted that the case would have been nonsuited, unless the Court had supposed there was some way in which the apparent defect in the title could be removed, I gave the instruction to the jury, that they might presume, from the great lapse of time, that the Legislature had passed an Act, divorcing Bathsheba from her husband, Robert Worthington; but at the same time I took occasion to say to the jury and all concerned, that this instruction was given, so as to have the question of location properly settled, and to send up the naked question of law to the Court of Appeals, reserving to this occasion my own opinion.

That an Act of the Legislature, after a lapse of twenty years’ possession and use, may be presumed, is, I think, too clear to admit of doubt. Liké a grant, it may be presumed, notwithstanding the public records shew no such thing existed. This, however, is altogether confined to cases in which the Legislature might or might not act. It cannot apply where, from the Constitution or a sort of common law of our own, the Legislature never have, and never will act. Best, in his treatise on Presumptions, sec. 109, p. 145, 37th No. of the Law Library, tells us there is hardly a species of Act or document, public or private, that will not be presumed in support of possession. “Even Acts of Parliament may be thus presumed.” Under this authority, if a divorce ever had taken place, or even could take place, in this State, I would not hesitate to say that an Act for that purpose ought to be presumed, in this case. But, as was said in Boyce v. Owens, 1 Hill, 10, “ The marriage contract, in this State, is regarded as indissoluble by any human means. Nothing short of the actual or presumed death of one of the parties can have the effect of discharging its obligation and legal effect.”

This was my deliberate judgment, pronounced and concurred in by my brethren of the Court of Appeals, Johnson and Harper, nearly fifteen years ago. It has received the entire sanction and acquiesance of the Bench, the Bar, the Legislature, and the people, ever since. The most distressing cases, justifying divorce even upon scriptural grpunds, have been again and again presented to the Legislature, and- ' they have uniformly refused to annul the marriage tie. — • They have nobly adhered to the injunction, “ Those whom" God has joined together, let not man put asunder.” The working of this stern policy has been to the good of the people and the State, in 'every respect.

With this knowledge before us, can an Act granting a divorce a. vinculo matrimonii, be presumed ? Mr. Best, in bis 2d chapter, sec. 61, p. 74, under the maxim “ Omnia pre-sumuntur rite esse acta,” says “ The extent to which Courts of Justice will presume in support of Acts, depends very much on whether they are favored or not by law.” This being, as-I think, the true notion of the application of the maxim, I am clearly of the opinion that an Act granting a divorce can, under no circumstances, be presumed from lapse of time.— No other presumption which could profit the plaintiff in this case, can arise. The deed from Bathsheba Worthington to him being that of a femme covert, it is void; and his title failing, he must, of course, be nonsuited. I regret the result, for it is plain the defendant has no title whatever to the land ;• but however hard may be the case, still the law must have its course. It is mercy to the parties to end the litigation, when it is plain, as it is here, that the plaintiff can never recover. The verdict is, therefore, set aside and a nonsuit ordered.

Richardson, J. Evans, J. Wardlaw, J. Frost, J. and! Withers, J. concurred.

Nonsuit ordm'ed.  