Bryan v. Watson , 20 Ga. 480 ( 1856 )

By the Court.

Lumpkin, J.

delivering the opinion.

pL.] [2.] The two first objections may be considered together. They assume that letters of administration should show upon their face that they were granted to a free white citizen; and consequently, that it is inadmissible by parol to add to or contradict them, by proving that the intestate was a free person of color.

The letters, of themselves, show nothing. The most that can be contended for is, that the presumption of law is, that they were granted upon the estate of a free white person. ■Now presumptions of law are of two kinds: First, such as are made by the law itself; or, as they are called, presumptions of mere law. Secondly. Such as are to be made by a Jury, or presumptions of law and of fact. Again. Presumptions of mere law are either absolute and conclusive: as for instance, that a bond or other specialty was executed upon a valid consideration cannot be rebutted by evidence, so long as the presumption is not impeached for fraud ; (4 Burrow, 2225;) or they are not absolute, and may be rebutted by proof. And such is the character of the presumption arising from the face of these letters. The presumption of law is, that they were granted upon the estate of a free white person. Still, this presumption is not conclusive, but is capable of being rebutted or susceptible of explanation by the testimony.

[3.] [4.] The next two assignments of error may also be disposed of together.

Was it competent for the witnesses, Joseph Rush and Mary Rogers, to testify as to the general reputation in the •neighborhood where he resided, that Joseph Nunez was a free person of color, and .that such was their own belief?

Mr. Cfreenleaf says : “ Upon the same principle it is eon■sidered that evidence of general reputation, reputed ownership, public rumor, -general notoriety and the like, though, composed of the speech of third persons, not under oath, is •original evidence, and not hearsay, the subject of inquiry •being of many voices to the same fact.” (1 Green. Ev. §101.)

As to the opinion of the witnesses, it was given in connection with and as a mental deduction from all the facts which «orne within their knowledge, and to which they had deposed.

[5.] Defendant’s Counsel objected to any evidence, that Joseph Nunez took and held the property in dispute by descent, it appearing that he claimed it under the will of James Nunez, his father, and Eanny Gralphin, his aunt; and which wills were not produced.

This exception assigns to the plaintiff a position which he refuses to occupy. Joseph Nunez does not derive title to-these slaves under and by virtue of the testaments of these ancestors. On the contrary, he claims by descent. The contents of the wills were not elicited at his instance nor for his benefit, and were very properly suppressed by the Court.

[6.] Was there any evidence to establish that the title of Joseph Nunez accrued prior to the Act of December, 1818 ?

A non-suit was moved, on the assumption that there was mo such proof. And the ground was well taken, provided the facts substantiated it. Because, if the title did not accrue prior to that Act, it could not be acquired subsequently. JBut the record does not warrant the assumption. On the contrary) not to cite any other fact, it shows that James Nunez died in 1809 ; that Nanny, the mother of Patience, went immediately into the possession of Eanny Gralphin, his sister; that Eanny Gralphin died in 1817, or the beginning of 1818, and that Nanny then passed into the possession of Joseph Nunez.

Besides, it is in proof that Eanny Galphin never did, in -fact, own Nanny; that after the death of her brother James, :and while she had possession of this woman, she was always considered as belonging to Joseph Nunez; and he derived his title directly from his father.

[7.] Was the Court right in allowing plaintiff to submit to •the Jury the testimony of Ward and the two Cosnahans ?

Plaintiff had made out a prima facie case. It had been •■assailed vigorously by the defendant; and the purpose of this proof was, to fortify his title, thus attacked. It was, we apprehend, competent to do so. It is a matter of every day practice in the Courts.

[8.] Should the exemplification from the Inferior Court of Burke County have been admitted in evidence ? Surely, for •as much as it was worth. What signifies it that the proceeddng was not at a regular term; and that the order passed, -omitted to recite that the applicant, Joseph Nunez, was a free person of color; and that it did not appear that the guardian appointed, did give any security in terms of the law, still it tended to demonstrate that Jos. Nunez considered himself, •and was so considered by the Court, a free person of color. The proceeding took place in 1818, and as Jos. Nunez must have been born prior to the death of his father, in 1809, or within the usual period of gestation thereafter, he was upwards of thirty years old at that time. He was not, therefore, entitled •-to a guardian as a minor. It never was pretended that he iwas a lunatic. The proceeding, then, must necessarily have been based upon the fact that he was a free person of color; •arid it was- so understood by the Court and every body else at that time.

[9.] We see no error in the principles laid down in the ■first, second and third requests made by the plaintiff’s Counsel and charged by the Court. As to the fourth, my brother Benning and myself differ in opinion. While he holds with this Court, as I understand him in the position taken when this case was up before, (14 Ga. R. 198,) that “ the status of the African in Georgia, whether bond or free, is such that he has no civil, social or political rights or capacity whatever, • except such as are bestowed on him by statute,” yet he insists that the power of a free person of polor to dispose of‘ slaves, by sale or otherwise in this State, is- conferred, or rather, perhaps, is to be inferred from existing legislation,

I have no disposition to re-argue this question on my part, •but beg leave to refer to the opinion of this Court just cited. I would merely add that were the right in question plainly deducible from other acts, which I maintain it is not, still I should hold that the Act of 1819 is a limitation or restriction upon this power. The title to these slaves or to any other owned by free persons of color, must have accrued anterior to 1818. And the Act of 1819 declares that all such “ shall remain in the owner or in his or her descendants after his or her death.” (Prince, 799.) So soon, therefore, as the descendants of Joseph Nunez were cut off or before extinct, in which line alone the title could be transmuted, and that, too, by operation of the Statute, the title became forfeited to the State.

[10.] We see no reason why the Court refused to give in totidem verbis the second and fifth charges, as requested by defendant’s Counsel, namely: that if Joseph Nunez was a free person of color, that is, of mixed negro and white blood, or mixed negro and Indian blood, that before Walton, his administrator, could recover, it must be shown that the title of his intestate to the negroes vested prior to 1818; and that if it originated subsequent to that time, the plaintiff must fail. By law, all titles to slaves which had not vested at that date, were forfeited. And that being the case, it would be needless and improper to inquire into the validity of the defendant’s title. Bryan’s possession would be sufficient to protect him against any other than the true owner.

[11.] We do not concur with Counsel for the plaintiff in their view of the law as set forth in the eighth and ninth requests to charge. On the contrary, we hold that under the Act of 1819, property can be transmitted by descent to the illegitimate offspring of the father, provided they be free persons of color, whether the mother be a free white woman, an Indian or a free person of color. Such, we believe, was the-intention of the Legislature. ,

[12.] The eleventh request should, have been complied’ with. The fact that Joseph Nunez did not register himself' as a free person of color, if it exists, and that notwithstanding said failure or refusal, no effort was made to subject him to the penalty prescribed by law for such conduct, was certainly a circumstance, slight though it may be, which the-Jury had a right to weigh, on the trial of the issue submitted! to them.

[13.] We are not prepared to indorse the doctrine enunciated in the instructions of the Court, to the effect that “ if a person has any negro blood, he is disabled from conveying slaves.” On the contrary, we should say that to put him under such a disability, he must have one-eighth of African blood in his veins. If he is descended from one who stands further off than the third degree or generation to him or her-who was or is not a free white citizen of this State, or of any other State whose Constitution and Laws tolerate involuntary-servitude, he may exercise all the rights and privileges of a freeman: and amongst the rest, may contract and be contracted with as to slaves or any other species of property*. (Cobh, 531.) ■

[14.] Nor do we subscribe, in the last place, to the proposition, that the term “ descendants” in the Act of 1819, includes collaterals; and that slaves held under that Statute- “ might ascend as well as descend both as to lineals and col-laterals.” “Descendants” says Bouvier, “ are the posterity or those who have issued from an individual, and include his children, grand-children and their children to the remotest, degree.” (1 Law Dic. 448, citing Ambler, 327; 2 Bro. C. C. 30; Id. 230; 3 Bro. C. C. 367; 1 Rop. Leg. 115;) and. again: “ The descendants from what is called the direct descending line. The term is opposed to that of ascendants.”' (Id.)