
    McDowell v. Sapp.
    A marriage between slaves, in a slave state, where such marriage had no legal validity, was of imperfect obligation, and, -before the emancipation proclamation, was so . far avoided by a marriage of the husband to another woman, valid at the place where solemnized, (hat on the death of the husband and second wife, she who was the first wife has no interest, as -against the issue by the second marriage, in the property acquired by such -husband and second wife during their cohabitation.
    Error to the District Court of .Cuyahoga county..
    In February, 1856, Peter Dunlap and Rachel Smith, colored persons, were married in Canada, where they were domiciled, which marriage was in all respects regular, and by the laws of Canada in all respects valid. In 185S, they removed to the city of Cleveland, where they resided as husband and wife, and were regarded by all persons as sustaining that relation, until August, 1877, when Mrs. Dunlap died intestate ; and Dunlap continued to reside there until June, 1881, when he died intestate. During the time 'they lived together as husband and wife at Cleveland, they accumulated property, real and personal, the real estate of the value of $5,000, and the personal property of the value of $5,000. The real estate he caused to be conveyed, through one Odell, to Mrs. Dunlap in good faith, so far as appears, and not to defraud creditors or for other unlawful purpose. The issue of the marriage consisted of three daughters, Sarah, Lucy and Lottie, all of whom are living and unmarried, the youngest having been born in 1864.
    There is no evidence to show that Peter Dunlap or Mrs'. Dunlap doubted, at any time, the legality of the marriage; nor is there any proof that Mrs. Dunlap ever heard that Peter Dunlap had contracted, in any form, any other marriage ; nor is it shown that their daughters ever heard of any other marriage than the one stated, until the petition, hereinafter mentioned, was filed.
    On December 24,1881, Maria McDowell, a colored woman, commenced a suit in the court of common pleas of Cuyahoga county, against Sapp, administrator of Peter Dunlap, arid Peter's above named children, and from the petition, or by admission, the following additional facts appear. In 1840 Peter Dunlap lived in Columbia, South Carolina, was a slave, and was called Adam McDowell. Maria, the plaintiff, also lived in that city, and was then a slave. In December, 1840, by consent of their masters, Adam and Maria were, at their request, regularly married in that state, by a minister of the gospel, according to the forms observed therein for marriages. They lived together in that state, as husband and wife, from that time until 1856, but there was no issue of' the marriage. In 1856 Adam escaped from slavery, went to Canada, and his subsequent history is as already stated. She never saw him again, and he was never again in South Carolina. lie sent her, in 1866, ten dollars, and the same amount in 1870, and stated to the person to whom he delivered the money, at Cleveland, the fact that lie liad married her. There does not appear to have been any other communication between them. She requested the administrator to file a jietition under Rev. Stat. § 6202, for directions as to his duty, and for the purpose of asserting her rights, and he refusing, she filed the petition' above mentioned, the prayer of which, is as follows : “ That the said court find, decree and adjudge that the plaintiff is the only true and lawful heir and distributee of the said Adam, and as such entitled to have and receive from the said L. W. Sapp, as administrator, the whole of said personal property left by said Adam McDowell; that the deeds to said Rachel Dunlap and said Odell may be set aside, as in fraud of the plaintiff’s right in the premises; that said real estate, and each and every part thereof, may be deemed to belong to this plaintiff; and that if the court find that said deeds wrere not made in fraud of the plaintiff’s right, that plaintiff shall then be decreed to have dower in said premises assigned to her therein; and she aslcs for such other and further relief as she is entitled to in equity.’’
    In the district court, to which the cause was taken by appeal, the court heard the same on petition,- answer, reply and testimony, and on such hearing the petition was dismissed; and this petition in error is prosecuted by Maria to reverse the judgment.
    
      W. G. Rogers, for plaintiff in error.
    
      JE. Sowers, for defendants in error.
   By the Court.

It is well settled that the validity of a marriage must be determined from the lex loei contractus. If valid where solemnized, it is valid elsewhere; if invalid there, it is invalid everywhere. Story’s Confl. L. §§ 84, 93; Bishop’s Mar. & D. § 390 ; Bar’s Int. L. (S. & B.’s ed.) 364. It will be seen tfiat exceptions to the rule exist, and how far they apply in cases of this sort is discussed in Harris v. Cooper, 31 U. C. Q. B. 182. It appears in Davenport v. Caldwell, 10 South Car. 317, a copy of the report of which case is made part of the recox’d, that the law of South Carolina, previous to the emancipation proclamation, with respect to slave marriages, was substantially the same as in all the states in which slaves were then held. We are disposed to view those marriages in the most favorable light which the law will warrant; but it is impossible to escape the conviction that, previous to emancipation, they were marriages of imperfect obligation. “It was,” said Swayne, J. in Hall v. United States, 92 U. S. 27, 30, “ an inflexible rule of African slavery, wherever it existed, that the slave was incapable of entering into any contract, not excepting the contract of marriage.” Mr. Bishop thinks there is a stronger reason for the invalidity of such marriages than inability to contract. He says : “ That the duties of husband and wife are incompatible with those of a slave, is a proposition evidently sound in law, and upon it the doctrine which denies to slavery the power of matrimony may well rest.” 1 Bishop’s Mar. & D. § 158. But although such marriages were of imperfect obligation, we are unwilling to say they were mere nullities. They were indeed not only countenanced, but, for most cogent reasons, encouraged by both white and colored, at the places where they were solemnized. A marriage celebrated during insanity of the parties, or where they were too young to give consent, or where impotence existed, is ratified by cohabitation subsequent to the removal of the disability ; a contract of marriage obtained by fraud, becomes unimpeachable by cohabitation after the fraud is discovered ; and a slave marriage becomes entirely valid by cohabitation subsequent to emancipation. But in all these cases whore there was no such ratification, the marriage might be avoided in some form. This is well illustrated by Shafher v. State, 20 Ohio, 1. That was an indictment against Shafher for bigamy. He married Elizabeth Emerich, March 19, 1848, when he wras less than sixteen years old; and while she was still living, on March 19,1850, he married Amanda Fitz, when he was less than eighteen years of age. The statute then in force fixed the ages at which persons might marry at eighteen in males and fourteen in females. The court hold that the first marriage was completely avoided by the second marriage, and hence, on that state of facts, Shafher was not liable to proseciition. Although that decision is not in all respects in accord with two or three other cases (1 Bishop Mar. & D. § 143 et seq.), it will be seen that this conflict in no way militates against Shafheps case as a pertinent illustration of the principle stated.

A case more directly in point is Harris v. Cooper, supra, which was fully argued and carefully considered in the Queen’s Bench, Upper Canada, in 1871. It appeared that in 1825 John Harris and Sarah Halloway, both slaves, living in Richmond, Virginia, were, with the consent of their masters, married by a minister of the gospel in the usual form of marriages in that state. They lived together until 1832, during which time there was issue of the marriage three children, one of whom still lives. In 1832, Harris escaped from slavery, changed his name to George Johnson, and became a resident of New York, whore in 1833 he was married in due form of law to a colored woman also named Sarah, and they cohabited together as husband and wife. In 1834 he became a citizen of Canada, and having accumulated property, died there in 1851. His wife by the slave marriage died in Richmond. The son by the slave marriage brought suit in Canada to recover the real estate in Canada, of which his father died seized, but it was held that he could not recover, and among other things it was said, that the first marriage, having been completely abandoned, was wholly invalid.

Mr. Bishop, in the last (6th) edition of his work on Marriage'and Divorce (vol. 1, § 163), states the law to be as follows: “According to usage, in all places where slavery existed in this country, the marriages between slaves were dissolvable without judicial sentence, wherever the parties were permanently separated. A separation at or before emancipation, therefore, would properly be deemed a divorce. For if the law takes cognizance of slave marriages, it must also of these slave divorces.” And see Pierre v. Fontenette, 25 La. Ann. 617; Washington v. Washington, 67 Ala. 281; Long v. Barnes, 87 N. C. 329.

We are not required to go to that extent in this case. Indeed, if Peter Dunlap had not disaffirmed the slave marriage by his marriage in Canada, we are by no means prepared to say that Maria McDowell would not bo entitled to the property by force of the slave marriage, the disability to which marriage was removed by emancipation. But we have no such case before us. Peter Dunlap did marry in Canada, in 1856, according to the laws in force there, and did not thereby commit the crime of bigamy, but performed an act perfectly lawful, and effectually avoided the slave marriage. He lived with the wife lie married in Canada twenty-one years, and until she died. They accumulated property amounting to $10,000, and raised a family of three daughters, now young women. ' There is no doubt that father, mother and daughters regarded the marriage as in all respects valid, and so the law regards it.However much our sympathy may be with the plaintiff, whose unfortunate condition was that of servitude, our duty is simply to declare the law. We have not been able to find a single case, nor do we believe one can be found, which would support us in saying that this property shall be wrested from the daughters of Peter and Rachel Dunlap. '

Judgment affirmed.  