
    Clifton Anderson and Julia Ann Fox vs. William Smith.
    Law. No. 26,636.
    5 Decided March 5, 1883.
    
      I Tlie Chief Justice and Justices Haonek and Oox sitting.
    1. In ejectment in this District the general rule is that in making proof' of record title the plaintiff must go back to the original source and show a grant either from the State of Maryland or the United States, and then, if there should be a hiatus in the chain of title, twenty years possession in conformity with the deeds will raise a presumption of the missing links. But when both parties claim title from the same source it is not necessary to go beyond that source.
    2. When the plaintiff has failed to trace title from thh State of Maryland or the United States, and the defendant, instead of resting upon that defect, goes on with his evidence and in the course of it shows that he-is claiming from the same source as the plaintiff, the defect in the-plaintiff’s proof will be cured.
    3. The relationship of a deceased party cannot be established by his own declarations, but must be proved aliunde; when, however, that relationship is once established, his declarations as to kinship of other parties are admissible.
    4. An exception to this rule is allowed only in cases of very ancient pedigree, where it is impossible to find proof of the declarant’s relationship otherwise than by his own declarations, but even in that case some degree of evidence is required.
    5. A party has a right to designate his own heirs; whether he be mistaken as to the relationship or not concerns no one but himself ; declarations of a deceased party upon that subject are therefore properly admissible.
    .6. Proof that plaintiff’s parents, who were slaves, lived together ins Virginia as man and wife, without proof of a marriage either according to law or according to any custom prevailing at the time in any State, cannot be received as evidence of the legitimacy of their offspring.
    7. The provisions of section 724. Revised Statutes of the District of' Columbia, in relation to the cohabitation of colored persons previous to their emancipation, applies only to those who were residents of the District of Columbia.
    8. In an action of ejectment plaintiff should show that the defendant was-in possession.
    The Case is stated in the opinion.
    J. McDowell Carrington and R. B. Lewis for plaintiff :
    These questions were all considered in the case of Jones’ Adm’rs, vs. Jones et al., 36 Maryland, page 448, and the conclusions then reached sustain the ruling of Judge Mac Arthur in this case. 1 Phillips on Ev., 240; 3 Starkie, 1119, n. (1) as to the fourth and ninth exceptions.
    
      The status of bastardy was as foreign to the condition of slavery as the status of legitimacy. A slave was not a bastard, and therefore he was not incapable of inheriting when emancipated. He had no foul or corrupt blood. Bishop on Marriage and Divorce, vol. I, 16 3-b; Stikes vs. Sevanson, 44 Ala., 633; Jones’ Adm’r, vs. Jones et al., 36 Md., 448.
    The custom as to the marital relation of slaves is one ■of which the courts do and should take judicial notice.
    In this case we have proof of the declaration of James Taylor and Ben Anderson that they were brothers — competent as evidence, and the court below was right in refusing the fourth and ninth prayer
    Reginald Fendall and E. A. Newman for defendant:
    1. Plaintiffs commence chain of title with equity proceedings in 1819. (See 1st exception.) In all actions of ejectment the plaintiff, in order to recover, must show a grant from the Proprietary. Mitchel vs. Mitchell, 1 Md., 44; Cockey’s Lessee vs. Smith, 3 H. & J., 20.
    It has been held by the Circuit Court of this District that it is unnecessary to show grant from the State of Maryland as source of title to lots in the city of Washington. O’Neal’s Lessee vs. Brown, 1 Cr. C. C., 69. In the case of city lots, however, all the title of the State of Maryland and the individual owners was conveyed to the United States in 1791, and from that time, and with the United States as a source, it is necessary to show title in reference to said lots. The individual owners of land in the District outside the city did not convey to the United States, and the only effect of the cession upon them was a change of sovereignty.
    Instead of beginning their title with a decree passed thirty years after the cession,, the, plaintiffs should have shown : grants-from the Proprietary, or, at least, as is the, practice -with' city lots,- commenced their chain'of title at the date of the cession, 1791.
    
      2. Declarations as to pedigree admitted without proof aliunde of relationship of declarant to family.
    “ It is well settled that before the declaration as to pedigree can be admitted the relationship of the declarant to the family must be established by other testimony.” Blackburn vs. Crawford, 3 Wall., 187.
    3. Evidence of slaves living on the same plantation as man and wife, without proof of marriage according to custom or law, allowed to go to the jury as conclusive proof of marriage.
    There is no marriage unless the parties thereto are able and willing to contract, and actually contract. There is no testimony in the case on the subject of marriage, except that the plaintiff’s father and mother, both slaves, lived as man and wife on the same plantation : there is no evidence of consent of the master, nor the performance of any ceremony, nor that they were married in accordance with any custom prevailing at the time.
    A slave is not able to make any contract, not even matrimony. 1 Md., 561.
    Cohabitation and mutual recognition between slaves as husband and wife do not constitute that relation so as to entitle them to the privileges and disabilities incident to husband and wife at the common law. State vs. Samuel, 2 Dev. & Bat. (N. C., Law), 177.
    There are two enabling acts of Congress bearing upon the marriage of slaves, neither of which apply to this case.
    Section 724, Revised Statutes of the District of Columbia, provides that, “All colored persons in the District who, previous to their actual emancipation, had undertaken and agreed to occupy the relation to each other of husband and wife, and were cohabiting together as such, or in any way recognizing the relation as existing, on the 25th of July, 1866, whether the rites of marriage have been celebrated between them or not, are deemed husband and wife,” &c.
    Act of February 6, 1879, supplement to Rev. Stats. U. S. vol. I, p. 409 (passed after the pretended right of plaintiffs ■accrued), takes effect from its date, and provides that the issue of a marriage of colored persons, contracted and entered into according to any custom prevailing at the time in any •of the States wherein the same occurred, shall be deemed legitimate.
    There was no evidence offered to show7 that the said Ben and the said Chloe ever i’esided in the District of Columbia, or that they occupied the relation to each other of husband and wife, or were cohabiting together as such, or in any way recognized the relation as existing, on the 25th of July, 1866 ; nor w7as there any evidence tending' to show that the plaintiffs ever resided in the District. On the contrary, the evidence showed that they always resided in the State of "Virginia.
    No testimony was offered of facts necessary to be established in order to permit the plaintiffs to recover as the children of Ben Anderson under the act of February •6, 1879.
    No evidence whatever was offered tending to show that the father and mother of Ben Anderson and James Taylor were ever married or lived together as husband and wife. Such testimony was necessary to the plaintiff’s case. Blackburn vs. Crawford, 3 Wall., 175.
    The plaintiff in ejectment cannot recover unless he prove the defendant to be in possession. Pope vs. Pendergrast, 1 A. K. Marsh (Ky.), 122; Cooley vs. Penfield, 1 Vermont, 244; Stevenson vs. Griffith, 3 Vermont, 448.
    If the plaintiff in ejectment claim as collateral heir, he anust show the descent of himself and the person last seized from some common ancestor, together with the extinction of all those lines of descent W'hich would claim before him. This is done by proving the marriages, births aud deaths necessary to complete his title and the identity of the persons. 2 Greenleaf on Ev., sec. 309; Tillinghast’s Adams’ Eject., 282-3.
    In the absence of proof of an actual marriage, or of facts (necessary to constitute a marriage under the acts of Congress ••aforesaid between the parents of the plaintiffs, the legitimacy of the plaintiffs is not to be presumed. Blackburn vs. Crawford, 3 Wall., 175.
    The plaintiffs having failed to prove that James Taylor ■and Ben Anderson were children of the same parents, or that any marriage in fact ever took place between their parents, the law will not presume a marriage or the legitimacy of the said children, and consequently the plaintiffs could not inherit from James Taylor as his heirs-at-law. Ibid.
   Mr. Justice Cox

delivered the opinion of the court.

These plaintiffs are colored people, who have brought this ¡action of ejectment to recover a small piece of land outside the city, in the county of Washington. They claim to be the nephew and niece of James Taylor, and the children of .a colored man named Ben Anderson ; both Taylor and Anderson having been formerly slaves in Virginia.

The case has already been twice tried, and we, therefore, ¡have great reluctance in sending it back. But it seems to •us that the record discloses errors which were prejudicial to 'the defendant, and at the same time discloses possibilities of ■ a better case for the plaintiffs.

In order to make out title in the first instance, at the trial, the plaintiffs produced in evidence the decree of this court .passed in 1819, for a sale of this property, and a subsequent regular chain of conveyances down to James Taylor, the .propositus,- and rested upon that as proof of title.

The defendant objected that that was not sufficient proof -of title ; that it was incumbent on the plaintiffs to go back •to the original source of title, the State of Maryland or the United States, there being in this case no proof of possession in conformity with the deeds, but simply record title from 1819 to 1871. The court below held that this was sufficient .proof of title.

There was, as we think, error in that. But perhaps it may -be cured, as we shall see hereafter.

Undoubtedly, the general rule is, that in seeking to make out proof of record title, the plaintiff must go back to the original source, and show a grant from either the State of Maryland or the United States, and then if there should be a hiatus in the chain of title, twenty years’ possession in conformity with the deeds will raise a presumption of the missing links. It is not absolutely necessary, therefore, to show a regular succession of conveyances from the State all the way down. In this case there was no possession shown, but simply the naked proof of record title from 1819 to 1871, and the court erred in ruling that that was sufficient proof.

But there is another rule of law which may obviate the difficulty, and that is, that where both parties claim title from the same source, it is not necessary to go beyond that source. For example, one man claims to be the heir of a decedent, and another claims to be his devisee. In an action by one against the other, it is not necessary to prove the title of the decedent. The only question is, who has derived title from him ?

In the next place, the defendant, instead of resting upon the defect in the plaintiffs’ proof, went on, himself, to prove that the title of James Taylor, which the plaintiffs claim to* have inherited, had been devised by him to Mary A. Smith,, wife of the defendant.

So that, the defendant then showed that he relied upon a. title derived from the same source as that upon which tim plaintiffs depended. As far as the first error is concerned, it must be held to have been cured by the defendant.

Further on, after having shown a record title down to James Taylor, in order to establish the relationship between plaintiffs and James Taylor, they offered in evidence the declarations of Ben Anderson, their father, that he was the brother of James Taylor. The form in which the offer is made, as stated in the bill of exceptions, is this:

That, previous to his father’s death, which occurred in 1867, his father told him that he, Ben Anderson, had a. brother named James, who, when quite young, was sold in slavery to a man named Taylor, in Virginia, and afterwards. to a man named Allen, and that he (Ben Anderson) had no other brother and no sister.

That does not seem to go very far towards establishing the fact that this James Taylor was the Virginia James Taylor. The only proof is, that he was sold t:o a. man named Taylor ; but whether that brother assumed'the. náíme of his master, and became James Taylor, is not pretended to be testified to.

But suppose the brother had been identified, the question then arises, whether the declarations of a deceased party are sufficient to establish his relationship to' another deceased party. The declarations are objected to on two grounds : 1st. The witness is not proved aliunde to be a relation of the family ; and, 2nd. That the deceased, whose declarations are offered in evidence, are not proved aliunde to be such.

The rule on that subject is, that you cannot establish the relationship of the declarant himself by his own declarations, but that the relationship must be proved aliunde; and when once that is established, then his declarations as to kinship of other parties are admissible. This was settled in the ease of the Banbury Peerage and other cases, in England. In that case a bill in chancery, in the first instance, by one as next friend of an infant, was offered in evidence, wherein the complainant describes himself as the uncle of the'infant in question. And the answers of other -parties, speaking of their relationship to the infant, were offered, all of them being dead. These were offered in evidence as the declarations of deceased persons, in order to prove the legitimacy of the infant in question. The question was submitted by the House of Lords to all the judges, and they-unanimously held that such declarations could not be received in evidence without proving aliunde that the uncle and the other so-called relatives were related to the infant,

There is an exception allowed only in cases of very ancient pedigree, where it is impossible to find proof of the declarant’s relationship otherwise than by his own declarations. But even in that case, it is said in Phillips on Evidence :

Still some degree of evidence is required, otherwise a mere stranger, by claiming alliance .with a family, might assume the power of materially altering the rights of its several branches by making statements in his lifetime respecting them.” 1 Phillips’ Ev. (4 Am. Ed. from 10 Eng.), 275-6.

The same question was settled in the case of the Leigh Peerage and Berkley Peerage cases, in which it was held that the relationship of the declarant must be established aliunde.

It seems to us, therefore, that the declarations of Ben Anderson, the father of the plaintiffs, were not admissible to show that he was the brother of James Taylor.

The proof was followed up by the statements of several people, who lived on the adjoining plantation to James Taylor, that they had heard both James Taylor himself and Ben Anderson declare that they were brothers. Those declarations were excepted to. As far as the exception relates to the declarations of Ben Anderson, the same observations might be made as to the declarations referred to in the second exception. The declarations of James Taylor, however, are not •open to that objection. There is no reason why they should not be received. He has the right to designate his heirs ; whether he be mistaken as to the relationship or not con■ce’rns no one but himself. His declarations were properly admitted. .

In the fourth exception it appears that the plaintiffs offered evidence tending to show that Ben. Anderson and •Chloe Anderson were both slaves and lived on the same plantation as man and wife. And then the plaintiffs rested, without offering any proof tending to show a marriage between the father and mother of Ben Anderson, or that Ben Anderson, the father,and Chloe,the mother of the plaintiff's, were married. In other words, the plaintiffs content themselves with proving that the father and mother lived together as slaves and as man and wife, but offered no proof of marriage, either according to law or according to any custom prevailing at the time in any State. The defendant’s counsel prayed the court to instruct the jury that, in the absence of such testimony, they must find for the defendant j which the court refused.

Ordinarily, we know, marriage must be established by proof of marriage rites according to law. There is, however, an act of Congress, approved 6th of February, 1879, which provides, in substance, that the issue of colored persons cohabiting as man and wife, according to the custom prevalent in the state before the emancipation of slaves, shall be deemed legitimate.

But there is no proof in this case of any marriage, nor is there any proof of the custom in that regard.

Section 724, R. S. D. C., provides: that, “all colored persons in the District, who previous to their actual emancipation, had undertaken and agreed to occupy the relation to each other of husband and wife, and were cohabiting together as such, or in any way recognizing the relation as existing, on the 25th day of July, 1866, whether the rites of marriage have been celebrated between them or not, are deemed husband wife, and are entitled to all the rights and privileges, and subject to the duties and obligations of that relation, in like manner as if they had been duly married according to law.”

That applies, how7ever, only to those who resided in the District of Columbia and, therefore, it is not urged in this case. But there is a statute of Virginia, on this subject, passed some time in 1866, almost in toiidem verbis with the statute of the District of Columbia, w7hich applies to former slaves who were cohabiting as man and wife at the date of the statute, and their offspring.

In this ease, however, although it is testified that Ben Anderson and Chloe lived as man and wife, it does not appear that they continued to occupy that relation at the time the act of Virginia w7as passed. There is no evidence on that subject. It would be quite prudent, perhaps, forjffte plaintiffs,¿.in another trial to offer' that Virginia act in evidence.

But, as the case now stands, the proof does not come up to the requirements of the law, as establishing lawful marriage between the the parents of these plaintiffs, and that exception, we think, is well taken. And that is sufficient to dispose of the case, and involve the necessity of a new trial.

Before we leave the case, however, there is one other matter to be adverted to.

The defendant offered a paper purporting to be the will of James Taylor, whereby this real estate was devised to Mary A. Smithand he has offered evidence, further, to show that she took sole possession of such real estate upon the death of Taylor, by virtue of his will, and has ever since claimed to own the same by virtue thereof.

This suit is brought against the husband (Vm. Smith) of the devisee in that alleged will. It is not proved in the case that he was in possession of, or that he claimed to own the property. This was not, however, formally excepted to by the defendant, and the defendant, on his part, undertook to show that Mary A. Smith, his wife, had this property devised to her, and took possession of it in pursuance of the devise ; in this argumentative way, showing that defendant did not claim. I merely suggest this now to show that on another trial the plaintiffs had better prove affirmatively that the defendant was in possession.

For the foregoing reasons, a new trial is granted.  