Addison Sapp v. Penelope R. Newsom, 27 Tex. 537

Bell, J. One of the most important questions in this case arises upon the charge of the court below, respecting the validity <of the registration of the deed under which the defendant in the court below claimed, in the county of Menard. This court is not, at present, able to enter upon the consideration of this question, because Mr. Justice Moore feels himself interested in its decision in such a manner as, perhaps, to disqualify him for acting upon it judicially. This question must, therefore, in the absence of the chief justice, be passed over.

But as we are of opinion that the judgment of the court below must be reversed on grounds not connected with the question of registration in Menard county, we will proceed to express our opinion upon two of the questions which are presented by the assignment of errors. The first and most important question in the case, so far as the right of the plaintiff below to recover is concerned, is the question of the validity of the contract of marriage between her parents, Robert Conn and Delilah Allen. Robert Conn and Delilah Allen were married in Texas by bond, on the 23d day of July, A. D. 1830.

The plaintiff, Penelope R. Newsom, is the offspring of that marriage, and was born in the year 1831. Robert Conn died in the year 1835. If the validity of the bond marriage between the parents of the plaintiff be denied, then, under the facts developed in this case, it cannot be claimed that she was legitimated, either by the act of the Consultation, of the 17th of January, A. D. 1836, or by the act of the Congress of the Republic of Texas, of the 5th of June, A.

D. 1887; because both of those acts prescribed conditions as to the legitimacy of the issue of bond and other irregular marriages, which do not appear, in the case of the appellee, to have been complied with. It was not until the act of the Congress, of the Republic, of the 5th of February, 1841, that the issue of such marriages was legitimated unconditionally.

If, then, the bond marriage between Robert Conn and Delilah Allen, in 1830, was not a valid marriage, it would follow that the plaintiff below, Penelope, was not the heir of Robert Conn at the time of his death in 1835, and could not inherit his estate; because, although the act of the 5th of February, 1841, would make her legitimate, it could not retroact to divest the rights of those upon whom descent was cast as the heirs of Robert Conn, at the time of his death in 1835.

These conclusions remit the plaintiff below, in the assertion of her rights as the heir of Robert Conn, to the question of the validity of the bond marriage of the 23d of July, 1830. We are of opinion that the contract entered into between Robert Conn and Delilah Allen, on the 23d day of July, 1830, was a valid contract of marriage. We do not deem it necessary to discuss the Mexican laws respecting the manner in which marriages could be contracted at that time. Those laws regarded marriage not only as a civil contract, but as a religious rite or sacrament.

Regarding marriage as a sacrament, the formalities with which it should be celebrated in Catholic States, usually conformed to the decrees and usages of the church.

The condition of Texas, however, in the year 1830, being such as to render it impossible for the inhabitants to celebrate the rite of matrimony in accordance with the forms prescribed by the decrees of the church, without going beyond the limits of the province, and subjecting themselves to great dangers in traveling to one or two distant points, where ministers of the established religion could be found, we think it the duty of the courts, upon the highest considerations of public policy, to hold that the marriages contracted in those times should be regarded as mere civil contracts, and should be sustained as valid, whenever the consent of the parties and the intention to enter into the state of matrimony, and to assume its duties and obligations, is clearly shown.

The error of the court below, for which the judgment will he reversed, is to be found in the charge of the court in reference to the three years’ statute of limitations.

The court said : “ To entitle the defendant to the protection of the statute of limitations of three years, as set up in the defence, he must connect his title with the proceedings of the Probate Court, under whose orders and decrees he derives title, and his deeds must also have been duly recorded from the government to those under whom he claims, down to himself; if any such link in the chain is wanting, the statute of three years cannot avail the defendant.” In this instruction there is error.

It is true that it was necessary to connect the deed under which the defendant claims with the orders and decrees of the Probate Court, but it was not necessary that all the links in the chain of title should appear to have been duly recorded. The records of the Probate Court of Jasper county having been destroyed by fire, the question whether or not there had been a valid order of sale by the Probate ' Court of the land in controversy, was a question of fact for the jury; and if the jury believed that there was, in fact, an order of sale, its validity would be presumed until the contrary was shown.

The judgment of the court below is reversed and the cause remanded. Unversed and remanded.