#### JAMES GATHINGS, ADM’R. vs. ENOCH WILLIAMS.

The record sent up to this court should not state the points of law arising on the trial, which were decided by the judge below against the party in whose favor is given the final judgment, from which the other party appeals.

Where a marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is a want of ag® or understanding, or a prior marriage still subsisting, the marriage is void absolutely and from the beginning, and, as between the parties themselves and those claiming under them, no rights whatever are acquired by such marriage,

And whether a marriage was void or not, may be inquired into by any court, in which rights are asserted under it, although the parties to the marriage be dead.

In the trial of an action for .a slave, a party was permitted to prove by parol the contents of a bill of sale, under which he had claimed and held possession of the slave for more than thirty years, the bill of sale having been destroyed by the burning of the Register’s office.

The uninterrupted possession of a slave for a long time, even before the act of 1820, Rev. St. 65, see. 18, affords a strong presumption of a good title in the possessor, unless reasonably rebutted by a fiduciary relation, an acknowledged bailment, disability of the one alleged to be the real owner, or the like.

The cases of Irby v. Wilson, 1 Dev. & Bat. Eq. 568, and Brinegar v. Chaffin, 3 Dev. 108, cited and approved,

Appeal from the Superior Court of Law of Montgomery county, at the Spring Term, 1845, his Honor Judge Pearson presiding.

*488This is an action of detinue for a slave, Dick, the issue of a female slave, named Olive.; and the plaintiff claimed him under a sale by one.Henry Williams, and the defendant claim-e(j ag j.jje administrator of Joseph Herring, and as the administrator of Nancy Williams. Upon the trial the case appeared to be this. Joseph Herring owned the negro Olive, (the mother of the slave in controversy) and in 17-96, made a deed of gift of her to his daughter, Nancy Herring, but reserving therein the use of the negro to himself for life; and in that year, Joseph Herring died, and Henry Williams and Nancy Herring intermarried. After the death of the said Joseph, his widow and children divided his property among them, and (Williams and his wife took possession of Olive as her property, and from that time, (the latter part of the year 1790,) up to October, 1836, Henry Williams was in possession of the said Olivó and her issue, claiming and treating them as ^his own. ,It,(howeyer, appeared, that in 1789, Henry Williams intermarried with Sarah Parker, who shortly afterwards eloped and never lived with him again, but she lived up to T825. From the intermárriage of said Williams and Nancy Herring, they were reputed' and lived together as man and wife, and had a large family of children, among whom was the present defendant, She died .in .18.18, intestate, and during her life never sét up any title in herself to the negroes, nor claimed the possession,’ but acquiesced in the exclusive possession held by Williams and (he title claimed by him. In the year 1836, the defendant obtained administration of the estate of.his mother, and claimed the negroes and got them out of the possession of Henry Williams ; 'arid, while they were so out of his possession, ’ Henry Williams made a .contract of sale of the slave (Dick to the plaintiff, and executed a .bill of sale, and in a few days afterwards, the said Henry regained the possession of Dick, and delivered him to the plaintiff, and received the purchase money, $600. The defendant again got Dick into his possession,' 'and after a demand and yefusal, ,t.he plaintiff brought this action in February, 1837. (The defendant subsequently took opt administration also on *489¡the estate of Joseph Herring. For the purpose of shewing the conveyance from Herring to his daughter, the produced a copy of the deed, which purported to be made by said Herring to his daughter and to be attested by two nesses, and he shewed that Henry Williams had been in possession of the original from the year 1,79.6 until .after this suit was brought, and claimed the said negroes under it, and that .it had been subsequently burnt in the Court House; and that the subscribing witnesses had been long dead. The defendant objected to the reading of the said copy, without proof <?f .the execution of the original, but the court admitted it.

The counsel for the plaintiff moved the court to instruct the jury, that upon the evidence they might presume a valid .conveyance from Joseph Herring or his administrator, to Henry Williams or to Nancy Williams, alias, Herring ; and the court gave the instruction, that such conveyance to the f aid Nan,cy might be presumed.

And the .counsel for the plaintiff also moved the court to instruct the jury, that, after the death of the said Nancy, the validity of the marriage, which was in fact celebrated between her and Henr.y Williams, could not be questioned by the defendant, but as her administrator he was concluded thereby; andj further^ that the jury might presume upon the evidence, if necessary .to the plaintiff’s title, a conveyance from the said Nancy to the said Henry. And the court gave the instruction as prayed for in respect to the presumption of a conveyance ; but, as that rendered the other part of the instruction 'unnecessary, the cqurt .declined giving the same, though his Honor deemed .it correct in point of law.

There was a ver.dict for the plaintiff, and judgment being rendered accordingly, thedefendant appealed.

Strange, with;whom was Winston, for the plaintiff:

The first question presented in this case is, are the persons claiming under Mrs. Williams, alias Nancy Herring, at liberty to dispute the validity of her marriage with Williams.— .Qn the part of the appellees it is contended they are estopped. *490Estoppels in pais aie gaining favor with the courts, and they are increasing list oí them. 2 Smith’s Leading cases, page 458. And they have for some time been more favorable to jjje doctrine 0f utility in estoppels, and more hostile to their technicality ; lb. 460, and also American Notes, 467. It must be confessed that the case of Irby v. Wilson, 1 Dev. & Bat. Eg. 668, on the first blush, makes against our position, for in that case it was held that the wife was not estopped to hold her property against those claiming as next of kin, or under the next of kin of the husband as mere volunteers, and to shew the invalidity of the marriage. That, however, is not so strong as the case of a purchase from the husband, and indeed, in that case, the estoppel was not relied on, but the fact of the invalidity of the marriage was first brought forward in. the plaintiff’s own bill, and the case is decided upon uncontested facts, and without any reference to authority, either by the court or counsel. In Mace v. Caddie, 1 Cond. Rep. 232, a woman who had lived with a man claiming to be his wife, was estopped upon his bankruptcy to claim the goods found in his possession as her own. In Morganv. Bridges and others, 1 Barn. &. Aid. 647, it is held by Lord Ellenborough, that where a party misrepresents his name, it estops him to deny its being his true name. In Glasspóole v. "Young and others, 9 Barn. & Cresswell, 696, the doctrine set forth in Mace v. Caddell, is approved, although in the particular case, by reason of the woman herself having been deceived in relation to the marriage, it was thought inapplicable. The case of Blades v. Tree, 9 Barn. & Cresswell, 167, is no departure from, but rather an affirmance of that doctrine, for there it was held that the woman held out by a man as his wife, although not married to him, would have the same power to bind him as his wife, but, in that case, as the death of the husband revoked the authority of a wife to bind her husband’s estate, so did it that of a mistress. In Edwards v, Farebrother, 2 Moore & Payne, 293, the court refers to the decision in Mace v. Cad-dell, with approbation, and forbears to decide in like manner upon the grounds, first, because, upon the finding of the jury, *491it became unnecessary; and secondly, out of respect to a Nisi Pritls decision of Lord Tenterden, in Edwards v. Bridges, 2 Stark. Rep. 396, in. which he did not seem to think the proposition clear. In Truck and wife v. ¿Staines, 1 Bos. & Pul. 293, it is held, if an executrix treat the goods of her testator as her own, and afterwards marry, and then treat them as the goods of her husband, she shall not be allowed to . object to their being taken in execution for her husband’s debt. The case of Fenton v. Reid, 4 John. Rep. 62, is a strong case to. shew, that even where there is direct proof of a former marriage and existence of a former wife at the time of the marriage, and where the parties then lived together for a long time, the court will go far to presume a re-marriage after the death of the first wife. And the case of Jackson v. Clads, 18 John. Rep. is to the same purport. In this State, cohabitation, reputation, and acknowledgment of parties, are held proof of marriage; Morgan v. Purnell, 4 Hawks, 95. Weaver V. Cryer, 1 Dev. 337. It is well settled, that a man who lives with a woman holding her out as his wife, is estopped to deny it, when charged with liabilities as her husband. Stephens’ N. P. 732. And why should not the converse of the proposition hold? And indeed it has been held to do so — vide same authority. And in the case of Campbell v. Tremlowe, 1 Price, 81, it is strongly intimated, that so complete is the es-toppel as to persons cohabiting as man and wife, that although it should be proven that they were never married, they would still be excluded from giving testimony in behalf of each other.

Secondly. Some of the cases cited under the last head, may seem to have gone upon the ground of presumption, which ought always to be made in favor of existing possession, and in fact they have no doubt gone in part on that ground. And we lay it down as a well established legal position, that great length of time creates a presumption which a jury should be instructed to make in favor of existing possessions, unless the contrary is shewn clearly to be the fact. And} therefore^ in this case, if the • defendant is not estopped *492to deny the invalidity of his mother’s marriage, he is met by a presumption which he cannot surmount,- and the deed of gift referred to in the case, does not affect that presumption, go ag {0 weaji;en jts force> And this presumption is not, as many have supposed, confined to questions relating to real property. I refer to Best on Presumptions, 144. In Gaskill v. Marshall, 5' Carr, éo Payne, 38', Lord Tenterden says, “ if plaintiff had been in possession of the goods a very long time, it might have beén otherwise evidently meaning that it would have created' a presumption of right in his favor. In Locke v. Armstrong, 2 Dev. & Baf. Eq>. 147, the court speaks strongly in favor of presumption from lapse of time, “ whatever may be the character of the transaction;,” and even considers it of peculiar strength in tiré casé of Slaves. In Morrison v. McElratfy é Dev. & Bat. 474, much stress is laid* upon lapse of time.' In Morgan v. Henley, 1 Dev. & Bat. 432, this cóürt expréssés most favorably of presumptions in favor of long possessions, and particularly meets the objection to the presumption growing out of the deed of gift in this case. In the case of Candle v. Lunsford, 4 Dev. & Bat. 409, the court lays down the broad doctrine, that “ from long possession, presumption of eVery thitag. arises, necessary to constitute a title in the possessor.” In the late case of Green v. Harris, 3 lred. 219pthe court re-affirms more strongly, if possible, the same position. In Rogers v. Mabre, 4 Dev. 180, the strength of such presumption is very fully discussed. In this case, there is a special presumption growing out of the transaction of delivery, by Mrs. Herring, to all the children, of the property after the death' of her husband, which seems to me perfectly conclusive of the case; for it is laid down in Burton on Real Property, 304: “ After'a considerable lapse of time, as 40 years, it may be presumed, if necessary,' that a person was executor or administrator who appears to have acted in that capacityin support of which position, he cites the case of The King■ against The Inhabitants of Barnsley, 1M. & S. 377. And the same position is found hr Best on-Presumptions, 145.-

*493Ru&fxn, C. J.

If it were admitted, that the instruction prayed for, as to an estoppel on the defendant to deny the riage of his parents, was correct, and that it was erroneous to refuse it; the judgment rendered in favor of the person, gainst whom the error operates, could not be affected; for that would be no ground for reversing it, nor could it for that reason be affirmed, if, for some other error against the appellant, it ought to be reversed. It is to be regretted, therefore, that such points should be stated in the record, as they almost necessarily draw the Court into discussions not material to the' decision of the cause, in order to avoid an inference from our silence of an approbation of the position. Such is the case on this occasion,- as the counsel for the plaintiff has pressed this point in the argument here. We have therefore to say, that We think that part of the instruction was properly refused; not because it was immaterial, but because it was entirely erroneous. The death of one of the parties to this marriage makes no difference, as to the power of enquiring into its validity,for any and all purposes. There is a distinction in the law between void and voidable marriages, where, even, they were regularly solemnized. The latter, which are sometimes ■ called marriages de facto, are such as are contracted between persons, who have capacity to contract marriage, but are for-' bidden by law from contracting it with each other: as to which, therefore, there was a jurisdiction in the spiritual Courts to declare the nullity of the marriage. But until the nullity was thus declared, as an existing marriage, it was re-' cognised as valid'-both in the canon and- common laW; and,as there can be no proceeding in the ecclesiastical Court against the parties,- after their death or that of one of them,that event virtually makes the marriage good- ah initio to all-intents, and the wife and husband may have dower and cur-tesy and the issue will be legitimate. Co. Lit. 32, 33. But1 where the marriage is between persons, one of whom has no' capacity to contract marriage at all, as where there is a want' of age, or’understanding, or a prior marriage still subsisting!’ the marriage is void absolutely and from the beginning, and’ *494may be enquired of in any Court. For, although, in such there may be a proceeding in the ecclesiastical Court, it is not to dissolve the marriage, but merely, for the convenience 0|. tjje partjeSj j;0 gn4 the fact and declare the marriage thereupon to have been void, ab initio ; and no civil rights can be acquired under such a marriage. It is said to be no marriage, but a profanation of marriage, and the factum is a nullity..— Thus, “if a man, seized of land, take a wife, and, during the marriage, he taketh another wife, and the husband die, leaving both wives, the latter shall not have dower; because the marriage between them is void’. And if a woman take a husband, and, living the same husband, she marrieth another, who is seized of land and the second husband dieth, she shall not have dower of his land: causa patet. Perk. 3, 304, 305. The same doctrine is laid down by Lord Holt in Hemming v. Price, 12 Mod. 432, and is found in Riddesden v. Wogan, Cro. Eliz. 858, and in many other cases. Bigamy repels the right to administer on the estate of the husband or wife, and to a distributive share, and to the acquisition by the husband of the personal property oí the wife by the marriage. Upon these points there are numerous cases in the English Books; and we have acted on the same principles in this State. Irby v. Wilson, 1 Dev. & Bat. Eq. 508. Brinegan v. Chaffin, 3 Dev. 108. As to the manner of enquiring into matter of this sort, it cannot be doubted that it must be by the jury, as of any other question of fact, or mixed question of fact and law. Owing to the peculiar division of jurisdiction between the ecclesiastical and common law Courts in England, it was held in early periods, that no special matter, avoiding a marriage, as bigamy for example, could be specially pleaded in a real action, but that the plea must be in the general form of ne unques accouple in loyal matrimonie, and that, upon issue joined thereon, a writ was sent to the Bishop of the Diocese, within which the other party alleged the marriage to have been celebrated, and his certificate in return was conclusive both of the fact and legality of the marriage. Dyer 368. Robins v. Crulchby, 2 Wils. 122. But that necessarily *495could only extend to marriages within England ; for the Bishop had no better means of enquiring into the fact of marriage in another country than the civil Judge, and had no more authority to pronounce on its legality. Hence it is clear law in England, that, as to foreign marriages, the plea must conclude to the country and the trial be by the jury and not by certificate. Ilderton v. Ilderton, 2 H. Bl. 159. A fortiori it must be so here, as w'e have no Bishops, who have a legal ecclesiastical jurisdiction to determine on marriages and certify them. Of course, this conclusion is a complete answer to the notion of an estoppel; for what the law pronounces void cannot estop. It may be true, that, as respects third persons, people, who hold themselves out to be man and wife, may be responsible, as if they were what they profess to be : as a man may be liable for articles furnished to a woman he calls his wife and lives with. But it cannot affect the right of property, as between themselves.

With respect to the opinions given against the defendant, which alone are properly before us, as the defendant' is the appellant, we concur with his Honor. If the doctrine of admitting an ancient deed, that is, one more than thirty years old, without proof of execution, is to apply to any conveyance of a chattel, it ought to do so to this; as the possession of the property and the custody of the deed have been, during the whole time, in the same hands, under a notorious claim of title, and it is actually proved, that the witnesses have both been long dead. If then the original had been produced., it would seem that under the rule, it ought to have been read._ If that be so, as its destruction, while in the custody of the law, has been clearly established, a copy is necessarily evidence ; for the copy is sufficient to establish the contents of the original, in such a case, and that is the whole purpose for which the original would be produced. But, without determining that point, we think it was evidence, and very strong evidencé, in aid of the length of time and other circumstances, on which the jury might and ought to presume a conveyance from Joseph Herring; the original ownar of the slave.— *496Here a man has been in exclusive possession of a female slave forty years, taking her immediately upon the death of the former owner, and raising a number of children from her, and tjje tjme cia¡mj[ng them under a deed from the former .owner, which he had in his possession and shewed, under .which a life interest was reserved to the maker of the deed, and the absolute property given to a person, under whom the .possessor claimed. The unqualified possession for so great a period, by itself, affords a high presumption of a title 5 but .when to it is added the fact, that the possessor really had an .instrument purporting to be a deed from the former owner, .that never was impeached by any relative or representative of the former owner, it amounts to plenary evidence, on which to found a presumption, that there was a conveyance by this instrument, as a genuine one, or by some other.

In like manner, as between themselves, we think the actual possession of Henry Williams, which is stated in the case to have been exclusive and on a .claim of right by him against every person — including, therefore, Nancy Herring — continued from 1796 to 1818 in ,the lifetime of Nancy Herring, without any claim of title b.y her, and with acquiescence in his claim of title and possession: and such possession of Williams, continued farther .to 1836, without any question of its rightfulness by any person claiming under her, does afford a .very strong presumption in fact and law, that in some manner he had acquired her title, whatever it was, ft is true, that those two persons lived together, and that, though not man and wife, they were reputed and acted as such; and, therefore, it might be a question, in which of them the possession was, as -prima fp.de it would be deemed to be with the title. .But that point is not left to inference, as it is stated affirmatively, that Henry Williams had the possession, and that it was claimed exclusively by him, and that in that claim the .other party acquiesced, without setting up any in herself. Under such circumstances, the character of the possession is not dubious, but clearly in Henry Williams, upon an assertion of right in himself adverse to all others. As Nancy Herring *497was then sui juris, she is affected by such possession, as any other person would be; and there can be no doubt, that her action for the slave would have been barred by the statute of limitations. So, too, the possession for the great length time is ground for presuming a conveyance from her as from any other person. That we ought in this State to apply such a presumption to slaves, in a peculiar manner, is clearly to be deduced from the act of 1820, which makes a possession, that would protect the possessor from the action of the owner under the statute of limitations, that is, three years adverse possession, the owner being under no disability, amount in itself to a title. That act does not reach the present case, because Nancy Herring died two years before it passed. But the policy, which dictated it, requires the court to adopt and apply the doctrine of the presumption of a conveyance to the case of slaves in a peculiar manner. So much of the substance of our citizens consists of slaves, and the right to property in them is so vigilantly guarded, and the inconveniences arising from divesting the possessors of female slaves after long possession and the charge of bringing up their families are so manifest, that the Legislature felt bound to make the short adverse possession of three years constitute a good title ,• and in like manner calls upon the courts and juries to presume a good title upon long possession, unless reasonably rebutted by a fiduciary relation, or an acknowledged bailment, disability of the owner, or the like.

Per Curiam, Judgment affirmed.