
    Sellars vs. Davis.
    A second marriage during the existence of the first marriage of one of the parties, renders the second void to all intents and purposes.
    A gift from a father to his daughter, who was married to a man whose first wife was still living, and from whom he was not divorced at the time of his second marriage, vests the property in the daughter; she being considered in law still a feme sole.
    
    But had the gift been direct to the supposed husband, the property would not have vested in the daughter.
    A sale of the property by the supposed husband, the daughter consenting and agreeing thereto, is not binding upon the daughter; she being at the time of the sale, and at the time she confirmed it, an infant under twenty-one.
    The supreme court will not reverse a judgment upon the ground that the verdict is against evidence, unless there be a great preponderance of testimony.
    Detinue for a siave named Wiltshire. The defendant below, Eliza Ann Davis, was married on the 12th of July, 1827, in the county of Maury, to Wm. D. Mitchel. At and before the time of this marriage, Mitchel was a married man, he having been married in Alabama previously to a certain Susan Mitchel, who, at the time he married defendant in error, was still alive. Shortly after bis supposed marriage with the defendant in error, her father, William E. Davis, called her, and in presence of her supposed husband, gave to her, by name, the slave in controversy, together with other property. Mitchel, the supposed husband, afterwards sold the slave to the plaintiff in error, Sellars, for a full and fair consideration. At the time of the sale, the defendant in error, who supposed herself the wife of Mitchel, was present, and assented to the sale. She was not then twenty-one years old, nor did she know that her supposed husband was in fact married to another woman at the time of his marriage with her. Nor does the proof show that the plaintiff in error, when he purchased and paid for said slave, had any knowledge of this fact. Shortly after the , . , , „ „° , , ' . sale oí the boy to Sellars, Mitchei was arrested, and was afterwards tried and convicted of bigamy. The defendant in error, after his said conviction, brought this action to recover the boy.
    The judge, upon the trial in the circuit'court of Mau-ry county, charged the 'jury, “that if they believed from the evidence, that William D. Mitchei was lawfully married in the State of Alabama, to Susan Mitchei, that then the second intended marriage with the plaintiff, Eliza Ann Davis, was null and void, and that he could not acquire in consideration of that supposed marriage, any right or title to property that was given by William E. Davis to his daughter, Eliza Ann. And further, if they believed from the proof, that the negro boy, Wiltshire, was given to Eliza Ann Davis by her father, and was af-terwards sold by her supposed husband to the defendant, Hardy Sellars, for a valuable consideration, without her knowledge and consent, that such sale conveyed no title - to the purchaser. And moreover, if she even agreed or consented to said sale, (she being an infant,) and without a full knowledge of her rights, and not intending to perpetrate a fraud, that said sale could pass no right or title to the defendant. But if the jury believed from the testimony, that the slave in controversy was given solely and alone to Mitchei, that then his subsequent sale to the defendant, Sellars, is good in law; or if the jury believed the slave in controversy was given to the plaintiff, Eliza Ann and William D. Mitchei, jointly, that then this action could not be maintained by the plaintiff alone.”
    The jury returned a verdict for the plaintiff, upon which judgment was entered.
    
      Webber and Lacy, for plaintiff in error.
    
      R. C. Foster, jr. for defendant in error.
   Green, J.

delivered the opinion of the court.

The marriage of the defendant in error to Mitchel, he having at the time another wife, to whom he was lawfully married, was' void to all intents and purposes. This transaction must be considered, therefore, as'though the marriage had never taken place. Her condition was not in law changed thereby. She continued a feme sole, and Mitchel was a stranger. If thus situated, her father gave the negro in question to her, she was not the less capable of taking and holding the title, because of her void marriage to Mitchel. True, the father supposed she was lawfully married, and that the property he was bestowing on her, would by virtue of the marriage vest in Mitchel. But that did not máke it a gift to Mitchel. He made the gift, supposing a certain legal relation to exist between his daughter and Mitchel, and that from that relation, certain legal consequences would result. If in point of fact, this legal relation did not exist, does not the conclusion follow, that the legal consequences did not result? It is said the father gave the property because he thought his daughter was married. That may be true, but it does not follow that he must be therefore considered as giving it to Mitchel. True, he might have done so; and if he had, the present defendant in error would clearly have no right to maintain this action. But the question of fact was fairly left to the jury. They have found that the negro was given to the daughter. There was evidence on both si des; and upon weighing all the proof, the jury have come to a conclusion with which we are satisfied. This court has uniformly held, that there must be a great preponderance of evidence to induce the reversal of a judgment, where there is no error in law. When Mitchel- sold the negro to Sellars, the defendant in error was willing to the sale, and so expressed herself after-wards, and after she bad heard that he had another, wife. But, she was then an infant, and wholly ignorant of her rights. If she had made the sale herself, she would not have been bound by it; much less can she be bound, because she consented that her supposed husband should make the sale.

It is alleged, that in thus consenting to the sale, she was guilty of a fraud on Sellars, the purchaser. This cannot be, seeing she supposed Mitchel had a lawful right to make the sale, and that she had no right to prevent it. Her conduct was perfectly fair, taking into consideration the want of knowledge under the influence of which she acted. But it is said she confirmed the sale afterwards. The answer is, she was still an infant, and as she could make no contract binding on her, nothing she could say in affirmance of one already made, could bind her. This suit is the most conclusive- evidence of her intention to disaffirm the sale. It is said that the suit should have been in the name of Davis, the father. Such suit could not have been sustained, because he certainly parted with the- property. If he gave it to Eliza Ann, it belonged as much to her as if she had never thought of a marriage.

The court is therefore-of opinion that there is no-error in this record, and that the judgment be affirmed.

Judgment affirmed.  