Boone v. Purnell

Admissibility in evidence of General Reputation in regard to Marriage — Right of the Court to permit Evidence to be Withdrawn after it has been once Admitted. Evidence by a witness of reputation of marriage is admissible, so long as it appears to be a general reputation; so soon as it appears, however, on cross-examination, or otherwise, that the witness is speaking from information given him by some individual, even of the existence of a general reputation, such evidence is merely hearsay, and as such is inadmissible. General reputation in regard to marriage may be proved by the testimony of a witness speaking from his own knowledge of the existence of such general reputation ; except in cases of adultery or bigamy, in which strict proof is required. Such evidence is also admissible to negative a presumption of marriage arising from cohabitation. It is admissible as a fact to show whether or not a marriage exists. Where testimony was objected to, but ruled admissible by the Court, and was afterwards withdrawn by the party offering it, with the consent of the Court, before the bill of exceptions embodying it was presented, before the prayers were submitted, and before the counsel of either party had gone before the jury, an exception taken to the withdrawal of the evidence should be overruled.

Appeal from the Circuit Court for Baltimore County. This was an action of Ejeetmeni, brought by the lessors of the plaintiff, (now appellants,) for five-sixths of one-third of a lot of ground in the village of Mount 'Wasliington, in Baltimore county. The appellants claim as descendants of John Cockey Burley Boone, who died in the year 1824, and who as they contend was twice married, and had by his'first marriage (to Betsy Parlett,) two children, Stephen and Eleanor, of whom Eleanor died childless; and Stephen died leaving children and grand-children, who are the plaintiffs. The defendant claims that the said John Cockey Burley Boone was never married to Betsy Parlett, his children by her being illegitimate, and that he had but one legitimate child named Prudence, who left two children, John C. R. Chamberlaine and Elizabeth P. Chamberlaine, under whom, by divers mesne conveyances, the defendant derived his title. The legitimacy of said Stephen and Eleanor was the only -question in the case. Six bills of exceptions were taken by the plaintiff below. First Exception: The view taken of this exception by the Court, renders a statement of its nature unnecessary. Second Exception: The defendant having read in evidence the deposition of Jemima Guineavan, the plaintiff objected to all that portion of said deposition as follows:- “She heard in the neighborhood that William Parlett, whom she has seen, was a son of the mother of said Stephen and Eleanor, that it was the reputation of the neighborhood that the above J. R. C. B. Boone was the father of said Stephen and Eleanor Parlett;” and they further objected to the following portion of said deposition: “But it was also the belief and report of the neighborhood that said Boone, and the mother of said Stephen and Eleanor, whose name she has heard in the neighborhood was Betsy Parlett, were not married;” that it was not admissible evidence to go to the jury, which'objection the Court (Emory, J.) overruled and permitted the same to be read to the jury. To this ruling the plaintiff prayed leave to except. Third Exception: The defendant having offered in evidence the deposition of Sarah Blufford, the plaintiff objected to the reading to the jury the following part of the deposition included in brackets: [“ that said John C. R. Boone never was married until he married Betsy Hale,” and also “ Betsy Dew and John ,C. R. Boone never were married to her knowledge and belief; it was the general reputation of the neighborhood that they lived together illicitly,”] as incompetent evidence to go to the jury. This objection the Court overruled, and per-milted the same to be read to the jury. To this ruling the plainti if excepted. Fourth Exception: The defendant having offered in evidence the deposition of Andrew Barrett, the plaintiff objected to all that portion of the deposition included in brackets, as follows: [“ Cannot say whether or not Stephen’s mother was dead, when he first heard the report above alluded to; deponent heard the report before her death that they were never married, always heard it was the report through the wholo neighborhood .where deponent lived, that they were never married,”] as not admissible evidence to go to the jury. This objection the Court overruled and permitted the said evidence to be read, leave being allowed the plaintiff to reserve an exception thereto; after the testimony was closed on both sides, but before any prayers had been submitted, or the counsel of either party had gone before the jury, the counsel for the plaintiff presented a bill of exceptions embodying said exception; when the defendant’s counsel immediately prayed the Court to exclude from the evidence before the jury the passage of said deposition so objected to, and not allow the jury to consider the same, and the Court thereupon permitted the defendant to withdraw the said testimony and- gave the instruction to the jury that the same was not in evidence and should not be considered by them. To this allowance by the Court of the withdrawal of said testimony the plaintiff prayed leave to except. Fifth Exception: Was abandoned. Sixth Exception: The plaintiff offered the following prayers: 1. If the jury believe from the evidence that John C. E. B. Boone and the mother of Stephen P. Boone lived together and cohabited, and that said Stephen was an off-spring of such cohabitation, and that the said John C. E. B. Boone acknowledged said Stephen to be his son and called him by the family name of Boone, they must find that said Stephen was' a legitimate son of said John C. E. B. Boone, unless they find satisfactory proof to the contrary. 2. If the jury believe from the evidence that John C. R. B. Boone cohabited with the mother of Stephen P. Boone, and that said Stephen was an off-spring of such cohabitation, and that the said John C. R. B. Boone acknowledged said Stephen as his son, and always treated him as such, and that the said Stephen lived with said John C. R. B. BoOne, and was brought up by him as if he were his legitimate son, and that the said John C. R. B. Boone in his last will and testament expressly named said Stephen as his son, and gave him the family name of Boone, and provided for him by bestowing upon him a large portion of his property, they must find that these acts of the said John C. R. B. Boone amounted to a daily assertion that the said Stephen was his legitimate son, and they must presume that he was such, unless they find stronger proof to the contrary. 3. If the jury believe from the evidence that John C. R. B. Boone and the mother of Stephen P. Boone lived together and cohabited, and that said Stephen was an off-spring of such cohabitation, and that the said John C. R. B. Boone acknowledged said Stephen as his son, and in his last will and testament gave him the family name of Boone, and provided for him as his son, and that the said mother died before said John C. R. B. Boone, and that after the death of said mother the said John C. R. B. Boone declared that his wife, the mother of said Stephen, was dead, and pointed out the spot in the family burial ground of the Boone family where she was buried, and expressed a wish to be buried by her side, and was buried by her side in conformity with his wish as aforesaid, and that the said Stephen was also there buried by the side of his said parents, and that a long period has elapsed since the death of the said Stephen and his said parents, they must find that the said Stephen was a legitimate son of the said John C. R. B. Boone, unless they find strong, distinct, satisfactory and conclusive evidence to establish the fact that the- said John C. R. B. Boone never was married to the mother of the said Stephen. 4. Repeats the prayer immediately preceding to the word “ unless,” and then proceeds as follows: unless there is evidence to show that there is no reasonable possibility of a marriage ever having taken place between the said John C. R. B. Boone, and the said mother either publicly or privately at any place, either in the State of Maryland or beyond the limits of the State of Maryland, at any period before the death of the said mother. 5. If the jury believe from the evidence that John C. R. B. Boone and the mother of Stephen P. Boone lived together and cohabited, until said cohabitation was terminated by the death of said mother, and that Stephen P. Boone and Eleanor R. Boone were the oil-spring of such cohabitation, and that he called them his sou and daughter and gave them the family name of Boone, and brought them up as his children and provided for them as such, and that there was a reputation that he was married to said mother as well as a reputation that, he was not so married, and that after the death of the said mother, he said that his wife, the mother of Stephen, was dead, and pointed out the spot in the burial ground of the Boone family where the said mother was buried, and spoke of her to the children of Stephen and Eleanor as their grandmother, and expressed a wish to be buried by her side, and was there buried, and that said Stephen was also there buried, and that many years have elapsed since the death of said Stephen and his said parents, they must find that the said John and said mother were married, in the absence of conclusive proof to the contrary; and the statement of a witness that the said mother cohabited with one Charles Parlett previously to her said cohabitation with said Boone, and any evidence that said Parlett was living at the time of the cohabitation of said mother with said Boone, and any reputation that said mother and said Boone were never married, does not appear such conclusive proof. 6. If the jury believe from the evidence that John C. R. B. Boone cohabited with the mother of Stephen P. Boone, and that there was a reputation that he was married to said mother, and if they believe from the evidence that said Stephen was an off-spring of such cohabitation, and that said John recognized said Stephen as his son, and in his last will and testament called him his son, and gave him the family name of Boone, such cohabitation, recognition and reputation offered legally sufficient proof that said John was married to said mother, and reputation that the said parents of said Stephen were not married, and evidence that said mother had cohabited with one Charles Parlett antecedently to her, said cóhabitation with said John, and evidence that said 'Charles Parlett was living during her said cohabitation with said John, can have no legal effect to disprove her said marriage with said John, proved as aforesaid. 7. If the jury believe from the evidence that John C. R. B. Boone cohabited with the mother of Stephen P. Boone, and that said Stephen was an off-spring of such cohabitation, and that th§ said John C. R. B. Boone recognized said Stephen as his son, and in his last will and testament called him his son, and gave him the family name of Boone, and that the. said Stephen and his said parents died many years ago, such cohabitation and recognition as aforesaid, offered legally sufficient proof that the said John was married to the said mother, unless they find conclusive proof to the contrary, and that no declaration or declarations of said John that he never was married to the said mother, can have any legal effect as evidence against the proof of marriage as aforesaid, unless it has been shown that such declaration or declarations were solemnly and deliberately made. 8. If the jury believe from the evidence that the mother of Stephen P. Boone lived with John C. R. B. Boone, and cohabited with him, and that the said Stephen was an offspring of such cohabitation, and that the said John acknowledged said Stephen as his son, and in his last will and testament declared him to be his son, and gave him the family name of.Boone, and that the said Stephen and his parents died many years ago, they must find that the legitimacy of the said Stephen is established by competent proof, and that the defendant has produced no evidence in this cause, legally sufficient to overthrow such proof of legitimacy. 9. If the jury believe from the evidence that the land claimed in the declaration in this action is a portion of the land of which John C. R. B. Boone died seized, and that Stephen P. Boone, Eleanor Burke and Prudence Chamberlaine, were his legitimate children, and that the plaintiff’s lessors are children and grand-children of said Stephen, and that John C. R. B. B. Chamberlaine and Elizabeth P. Boone, are the children of the said Prudence, and that some time after the death of the said John C. R. B. Boone, the said John C. R. B. B. Chamberlaine and the said Elizabeth P. Boone claimed possession of the said land as heirs of said John C. R. B. Boone, or that it was so claimed for them by their guardian, they must find that no such possession of said Chamberlaine and Elizabeth, and those claiming for or under them' could be adverse to the title of the plaintiff’s lessors to an undivided portion of said land as heirs of said John C. R. B. Boone, until there had been an ouster of said plaintiff’s lessors by the said Chamberlaine and Elizabeth, or those claiming for or under them, and a lapse of twenty years subsequent to such ouster and before the commencement of this suit, and that no reception of the profits or deeds of conveyance of said land by the said Chamberlaine and Elizabeth, or by those claiming for or under them, would amount to an ouster of the plaintiff’s lessors, and that such ouster would only bo by an expulsion of the plaintiff’s lessors from said land, a refusal to allow them to enter thereon or an open notorious and uniform denial of their title to an undivided portion thereof, known to the plaintiff’s lessors twenty years before the commencement of this suit, and the burden of proving such ouster and knowledge thereof as aforesaid, is on the defendant, and in the absence of proof of such ouster and knowledge thereof by the plaintiff’s lessors twenty years before the commencement of this suit, the plaintiff is entitled to- receive an undivided portion of said land as claimed in the declaration. 10. If the jury believe from the evidence that the land described and claimed in the declaration in this cause is a portion of the land of which John C. R. B. Boone died seized, and that the plaintiff’s lessors-are legitimate descendants and heirs at law of said John, and that' John C. R. B. B. Chamberlaine and Elizabeth P. Boone are also heirs of the said John, and that some time after the death of said John, the said Chamberlaine and Elizabeth claimed possession of said land as heirs of said John, but find no evidence to show that the land described and claimed in the declaration has been held by continuous enclosure for twenty years before the commencement of this suit, the right of entry of said plaintiff’s lessors has not been barred by the operation of the statute of limitation. ,11. If the jury believe from the evidence that John C. R. B. Boone died seized of the land described and claimed in the declaration in this cause, and that the plaintiff’s lessors are legitimate descendants and heirs-at-law of said John, and that after the death of said John, one John C. R. B. B. Chamberlaine and one Elizabeth P. Boone claimed and held possession of said land, claiming the same as heirs-at-law of said John, they must find that the said Chamberlaine and Elizabeth could not hold said land adversely to the title of the plaintiff’s lessors to one undivided portion thereof, until after an ouster of said plaintiff’s lessors, and subsequent possession for twenty years, and if the jury believe that there was such an ouster, but believe that at the time of said ouster any of the plaintiff’s lessors "were married women and continued under coverture until the commencement of this suit, they must find that the right of entry as respects the undivided portion in said land of said married women,- continuing under coverture as aforesaid, has not been barred by ¿dverse possession. 12. If the jury believe from the evidence that the land described and claimed in the declaration in this cause, is a-portion of the land of which John C. E. B. Boone died seized, in the year 1824, and that the plaintiff’s lessors are legitimate descendants and heirs-at-law of said John C. E. B, Boone, and that at some period after the death of said John C. E. B. Boone, one John C. E. B. B. Chamberlaine and one Elizabeth P. Chamberlaine, now Elizabeth P. Boone, claimed said land of which said John C. E. B. Boone died seized, as aforesaid, as his heirs, and in the year 1835, divided said land between them by deeds of partition, such deeds of partition were null and void so far as the undivided portion of the plaintiff’s lessors in said land was concerned, and if they find that after-wards said Elizabeth P. and her husband Samuel Boone, and said John C. E. B. B. Chamberlaine and wife, conveyed by deed or deeds, said land to Grafton L. Dulany, such deed or deeds were also null and void so far as the undivided portion of the plaintiff’s lessors was concerned, and if the jury find that the defendant holds and claims the land sued for in this action, by virtue of subsequent conveyances connecting his title to said land to the title of said Elizabeth and John C. E. B. B. Chamberlaine, by the deeds aforesaid, then the plaintiff is entitled to recover one undivided portion of said land as claimed in the declaration. 13. Upon the evidence offered in this cause, the jury can not find that the right of entry of the plaintiff’s lessors has been barred by the operation of the statute of limitation, and if the jury believe from the evidence that the plaintiff’s lessors are legitimate descendants and lieirs-at-law of John C. E. B. Boone, and that said Boone died, seized of the land described and claimed in the declaration, the plaintiff is entitled to recover an undivided portion of said land. 14. Was withdrawn. 15. If the jury believe from the evidence that John C. E. B. Boone cohabited with the mother of Stephen P. Boone, and that said Stephen and Eleanor Burke were the off-spring of such cohabitation, and that said John recognized said Stephen and Eleanor as his children such cohabitation and recognition offered legally sufficient proof of marriage between said John and said mother, until such proof of marriage is overthrown by stronger proof to the contrary, and if the jury further believe that after the death of said mother, the said John was married to one Elizabeth Hale, and that said marriage with said Elizabeth Hale, occurred in the year 1791, or about seventy-five years ago, as shown by the proof of such marriage offered in this cause, and further believe from the testimony of George Reed, a witness sworn and examined on the part of the defendant, that said Reed is now seventy-six years of age, they must find that said Reed could have no pei’sonal knowledge of an alleged cohabitation between one Charles' Parlett and the said mother of Stephen, before the said cohabitation between said John and said mother, and if they find no other evidence of cohabitation between said Parlett and said mother than hearsay report and reputation, they cannot from said evidence presume a marriage of said mother with said Parlett, so as to invalidate the marriage between the said mother and said John, proved by cohabitation and recognition as aforesaid. .16. If the jury believe from the evidence that John G. R. B. Boone and the mother of Stephen P. Boone cohabited, and that such cohabitation is proved by the direct testimony of a Avitness or witnesses Avho saAV them living together as man and wife, such cohabitation is proof of marriage, unless OA7erthroAvn by stronger proof to the contrary; and from hearsay reputation or report that the said mother cohabited with one Charles Parlett, before her said cohabitation with said John, they 'cannot presume that there was a legal marriage between said mother and said Parlett so as to invalidate any marriage between said mother and said John, proAmd by cohabitation as aforesaid, and if they find no other evidence of a cohabitation between said mother and said Parlett, than hearsay reputation or report that they did cohabit as aforesaid, they must find that a marriage between said Parlett and said mother is not established by any legally sufficient proof of such marriage. 17. If the jury believe from the evidence that John C. R. R. Boone and the mother of Stephen P. Boone, did agree to live together and cohabit as man and wife, and did so live together and cohabit, until such cohabitation wais terminated by the death of said mother, and find no other evidence than hearsay report and reputation, that said mother had before such cohabitation been married to one Charles Parlett, and hearsay report and reputation that said Parlett was living, during her said cohabitation with said John, they must find that such living together and cohabitation as aforesaid, constituted a legal marriage between said John and said mother, and the jury must presume from the facts of living together and cohabitation as aforesaid, that the said John and the said mother did agree to live together and cohabit as aforesaid, if they find no evidence to show that the said mother did not voluntarily and by consent live with and cohabit with said John, but did so against her own will and inclination. 18. If the jury believe from the evidence offered in this cause that John C. R. B. Boone and Elizabeth, the mother of Stephen Parlett Boone and Eleanor Boone, lived and cohabited as man and wife, and that said Boone repeatedly acknowledged said Elizabeth as his wife, and that he held her out to the world as his wife, and was visited by the neighbors as such, and that said Stephen and Eleanor were the children of said John and Elizabeth, and were acknowledged by him as his children and were treated by him as sneli, they must presume that the said John G. R. B. Boone and said Elizabeth were married, and that said Stephen was his legitimate son, notwithstanding they may find that there was hearsay evidence of said Elizabeth being married to one Parlett, previously to her cohabiting with said John, and notwithstanding they may find there was only hearsay evidence that said Parlett had returned during said cohabitation with said Boone, or after the death of said Elizabeth. The defendant prayed the Court to instruct the jury as follows: 1. That the fact that John C. R. B. Boone cohabited with Betsy Parlett, and that the off-spring of such cohabitation were recognized by him to be his children, and provided for in his will, ’and were described therein by the surname of Boone, and assumed and passed by that name, and the declarations o'f said Boone, and the other facts and circumstances' offered in evidence on the part of the plaintiff as tending to prove a marriage of said John C. R. B- Boone and Betsy Parlett, if the jury believe the witnesses testifying thereto, is evidence sufficient of itself to raise a presumption of the intermarriage of said parties, but if the jury further find that at the time of the said cohabitation the general reputation of the neighborhood in which they lived ‘was, that they were not married, but were living together illicitly, and that the general reputation within the family of the said Boone, then and subsequently was, that their intercourse was so illicit, and that the said John O. R. B. Boone, after said cohabitation, repeatedly declared. that he had never been married to the said Betsy Parlett, then the facts and circumstances taken together afford evidence tending to rebut such presumption of marriage, and if the jury from the whole evidence in the cause find that the said John C. R. B. Boone and Betsy Parlett were never married, the plaintiff will not be entitled to recover. 2. That if they find that previously to the intercourse between the said John C. R. B. Boone and Betsy, the mother of the said Stephen and Eleanor, of which the said Stephen and Eleanor were the fruit, the said Betsy was married to one Parlett, and that the said Parlett was not then dead, but in life, and that he survived the time when the marriage of the said Boone and Betsy Parlett is alleged and claimed on the part of the plaintiff to have taken place, then, even if the jury should find a marriage in fact between the said Boone and Betsy, in the life-time of her said former husband, Parlett, such marriage would be invalid and void. The Court granted the first, second, third, seventh, ninth, tenth, eleventh, twelfth and thirteenth prayers of the plaintiff, which were conceded by the defendant, and the two prayers of the defendant; the fourteenth prayer of the plaintiff was withdrawn, and the Court refused his fourth, fifth, sixth, eighth, fifteenth, sixteenth, seventeenth and eighteenth prayers; to the granting of the prayers of the defendant, and to the refusal of the prayers of the plaintiff, he excepted, and the verdict and judgment being against him, he appealed.