#### ANDERSON v. THOMAS.*

No. 13856.

Court of Appeal of Louisiana. Orleans.

Nov. 3, 1931.

E. M. Stafford and Daniel Wendling, both of New Orleans, for appellant.

Charles J. Mundy, of New Orleans, for appellee.

*

Rehearing denied November 30, 1931. writ of certiorari granted by Supreme Court January 4, 1933.

WESTERFIELD, J.

Plaintiff brings this suit for recognition as owner of an undivided one-third interest in certain property described in his petition. Eleanor Anderson Thomas, the record owner of the property, is made defendant.

There was judgment below in plaintiff’s favor as prayed for, and defendant has appealed.

Plaintiff claims to be the only son of Louis Anderson, Jr., one of five legitimate children born of the union of Louis Anderson, Sr., and Henrietta Anderson, who are alleged to have been married on or about .the 22d day of September, 1866. He alleges that defendant’s author in title, Racheal Anderson, one of the children of Louis Anderson, Sr., plaintiff’s grandfather, widow by her first marriage of Edward Garther, and widow by second marriage of Peter Martin, referred to in the pleadings for sake of brevity as Racheal Anderson, died February 2, 1924, possessed of the property in dispute; that Forman and John Anderson, brothers of Racheal Anderson, were recognized as her sole heirs and, as such, put in possession of the property by judgment of the civil district court; that Louis Anderson, Jr., plaintiff’s father, then deceased, was likewise a legitimate brother of the said Racheal Anderson; and that plaintiff is entitled by representation of his said father to the one-third interest in the property, the other child of Louis Anderson, Sr., having died without issue before Racheal Anderson.

•The record contains a certified copy of a marriage license issued in the parish of Lafourche to Louis Anderson and Henrietta Anderson under date of September 22, 1866, but there is nothing to show .that the marriage was celebrated. There is considerable oral testimony tending to prove that Louis Anderson, Jr., was known as the son of Louis Anderson, Sr., and the brother of Racheal Anderson, but nothing to indicate that a marriage ceremony was had.

One of plaintiff’s witnesses, Fanny Augustine, testified that she was born in 1865 and, when asked whether she was present at the- birth of Louis Anderson, Jr., plaintiff’s father, replied in the negative, explaining that he was born before she was, and consequently before 1866, the date of the alleged marriage of plaintiff’s grandparents. A photograph of a headstone having the inscription, “Louis Anderson born September 18, 1S62, died July 2nd, 1905,” is in evidence. It is apparent, therefore, and not denied, that plaintiff’s father was born four years before the date of the alleged marriage of his parents. He was, therefore, illegitimate, since the subsequent marriage did not ipso facto have the effect of legitimation without acknowledgment by his parents before their marriage by an authentic act or by the contract of marriage itself. Rev. Civ. Code, art. 19S; Van Dickson v. Mayfield, 158 La. 529; 104 So. 315. There is in this record not the least trace'of evidence tending to show the acknowledgment of Louis Anderson, Jr., by authentic act or in a marriage contract.

Fanny Augustine also testified that plaintiff’s father, Louis Anderson, was the youngest *379of the Anderson children. Plaintiff’s counsel attributes much importance to this testimony, which is without contradiction in the record when considered in connection with an admission in defendant’s answer. If Louis Anderson, Jr., was the youngest of the Anderson children, says counsel, Eorman, John, and Racheal Anderson must have been older than Louis; consequently if Louis was born four years before the marriage of his parents, his brothers and sister must have been born a greater length of time before their parents’ marriage. In the petition of plaintiff there appears an allegation in paragraph 3 -to the effect that: “Of said marriage between Louis Anderson, Sr. and Henrietta Anderson, above referred to, there was born the following named children, to-wit: Louis Anderson, Eorman Anderson, John Anderson. * * * ” To this allegation defendant replied as follows: “Defendant admits that Eorman Anderson and John Anderson and Racheal Anderson were born of said marriage, but defendant denies the remainder of the aver-ments of said paragraph 3.”

This admission by defendant .is said to establish the right of plaintiff to participate in the inheritance with his father’s brothers, Eorman and John Anderson, evidently upon the theory that their relation to their deceased sister, Racheal Anderson, is no more legitimate than plaintiff’s father, their brother, whom plaintiff represents in the succession of Racheal Anderson, his aunt, and all are in the same boat. We cannot follow counsel in this contention. The most that can be said of the effect of the allegation in the petition and the admission in the answer, together with the testimony of Fanny Augustine, is that it establishes the illegitimacy of Eorman, John, and Racheal Anderson as well as of plaintiff’s father, Louis Anderson, Jr.; but since plaintiff’s suit is in the nature of a petitory action, he must recover upon the strength of his own title and cannot rely upon the weakness of defendant’s title.

It is said that the oral testimony in the record is sufficient to show a slave marriage, all parties to this litigation being colored people and Louis Anderson, Jr., having been bom in 1862, a year previous to the abolition .of slavery, .and that while the civil effect of such marriage would be dormant during the period of slavery, it would be active, subsequent to the emancipation, by the mere fact of the parties continuing to live together as husband and wife. Ross v. Ross, 34 La. Ann. 860.

The requisites of a valid slave marriage are stated in the Succession of Young, 166 La. 285, 117 So. 150, 151, to be as follows: “In order to establish the validity of the alleged slave marriage, it is incumbent upon them (plaintiffs) to show: (1) consent of the parties ; (2) consent of the masters; (3) a ceremony; and (4) ratification by the parties subsequent to their emancipation. Succession of Walker, 121 La. 865, 46 So. 890; Johnson’s Heirs v. [Raphael], 117 La. 967, 42 So. 470."

We find no proof whatever in the record of this case which would establish a slave marriage between Louis Anderson, St., and his alleged wife, Henrietta.

Our conclusion is that the judgment appealed from is erroneous, and for the reasons assigned it is annulled, avoided, and reversed, and it is now ordered that there be judgment against the plaintiff, Willie Anderson, and in favor of the defendant, Eleanor Anderson Thomas, dismissing this suit at plaintiff’s cost.

Reversed.