Morgan v. Purnell, 11 N.C. 95, 4 Hawks 95 (1825)

Dec. 1825 · Supreme Court of North Carolina
11 N.C. 95, 4 Hawks 95

Morgan v. Purnell.

From Halifax.

Common reputation in the family, is admissible as evidence of a marriage in that family; and it seems that the declarations of a member, of that family, are evidence of such common reputation; but such declarations must have been made before any contest had arisen relative to such marriage.

This was an action of detinue for slaves, tried below before Donneix, Judge. The plaintiff claimed title under a parol gift from his mother, Ann Gkmterr made pri- or to the year 1806, and offered evidence to establish the fact of such a gift. The mother was living with Peter Morgan, the. father of the plaintiff, at the time of the alleged gift, but was not his wife at that time. Defendant contended, that plaintiff’s mother was afterwards married to Peter Morgan, and defendant claimed the slaves under two bills of sale, one from the executors of Peter Morgan to Wilson Carter, bearing date 19th of May, 1812, and reciting a consideration of $470; the other from Wilson Carter to defendant, dated 26th of April, 1813, and reciting a consideration of $400: there was no evidence but these recitals, of the payment of the purchase money mentioned in the bills of sale. Wilson Carter was dead; the witness to the bill oi sale last mentioned was examined, but had no recollection of the transaction. It was proved that both the executors of Peter Morgan had removed from the state, and the witness to the bill of sale which they had made was also a resident of another state.

For the purpose of proving the marriage of Peter Mor* gan with plaintiff’s mother, defendant offered to read thr, *96deposition of one Mary Dagget, which was admitted to have been regularly taken; hut was objected to on behalf of the plaintiff as containing only the declarations of the person under whom the defendant claimed, and made subsequently to the plaintiff’s title derived from her. The objection was sustained. The deposition was as follows:

«I know nothing of my own knowledge, only that she, 'Mrs. Morgan, told me herself that she and Mr. Peter Morgan were married.

“ I know nothing of any gift for Member; I only heard the report of the neighborhood that Anna Gunter gave ’Rose to Peter her son; and I was at the house of Mr. Morgan about six months before his death, and he talked of making his will; and Mrs. Morgan requested him to give the negroes that came by her, to her children.”

Defendant then offered other evidence of the marriage. Plaintiff’s mother survived her husband Peter Morgan.

There was a verdict for the plaintiff, and defendant moved for a new tidal, on the ground that the deposition of Mary Dagget was improperly rejected. A new trial was refused, and from the judgment rendered defendant appealed to this Court.

Badger, for the appellant.

Gaston and Seawell, for appellee.

Haix, Judge. —

It cannot be contended that the Judge erred in rejecting that part of the deposition which states, that about six months before Morgan’s death, Mrs. Morgan requested him to give to her children the negroes that came by her, because, if it had any effect at all, it would only have the improper tendency to invalidate the parol gift made by Mrs. Morgan herself, and under which the plaintiff claims title.

With respect to the other part of the deposition, it is very true that the declarations of husband or wife may be received to prove whether they were married or. not; hut it must appear that such declarations have not been *97made at a time, or with a view to serve any particular purpose. (Norris' Peake 23.) In this case, it does not appear when Mrs, Morgan told the witness that she and Mr. Morgan were married; it might have been, for ought that appears, before or after the commencement of this suit. For these reasons, I cannot say that the Judge erred in the rejection of this deposition. The rule tor a new trial should be discharged.

HeNdbiisoN, Judge.

Common reputation in the family, is admissible as evidence of a marriage in that family; and it is said that the declarations of an individual of that family, are evidence of that common reputation. But such declarations must have been made before any contest had arisen in regard to the marriage. It is necessary that they should have been made not only without any view of benefiting the person making them, but also without a view of benefiting any other; that they should have flowed from a desire only of speaking the truth, which all are presumed to have, when there is no motive to declare the contrary. The person, therefore, who offers such declarations, must show that they were made under such circumstances; it is a prerequisite to their admissibility. It not appearing that those made in the presence of Mrs. Dagget were made under such circumstances, they must be rejected; for ought that appears to the contrary, they might have been made on the very day on which her deposition was taken, and with a view to this contest, to aid a purchaser under her husband’s executors to increase her legacy, or the fund for the payment of debts, or other legacies, whereby her legacy would be the better secured to her. At all events it does not appear to have been made ante litem motam.

The declarations cannot be received as coming from one privy in estate, for she had parted with her estate in the negroes before they were made; the plaintiff is there» fore not a privy in the estate which she then had.

*98As to the other ground of objection,"to wit, that it tends-to invalidate an act which she had done, I know of no such rule of exclusion. The maxim nemo audiendus est al-iegare suam turpitudinem, is applicable to parties, and not to witnesses. If a person is not infamous, or interested in the event of the cause, he is competent; if his testimony tends to impeach an act which he has done, it goes to his credit.

The deposition must be rejected for the reasons first mentioned.

As I have not considered, so I express no opinion on what effect such subsequent marriage, and sale by the husband or his executors, would have upon the previous parol gift of a slave by the wife, under our act of 1784, or any other law.

The Chiee Justice assenting as to the reasons for rejecting the deposition,

Judgment aeeirmed.