MARSHALL, J.
This is an action in ejectment to recover an undivided one-half of seventy-one and sixty-seven hundredths acres of land, being a part of United States survey No. 1765, in St. Charles county, Missouri. The petition is in the usual form and the ouster is laid as of March 2, 1901. The answer is a general denial.
Eli Keen is the common source of title. The plain[366]*366tiff claims one-half of the land, subject to the payment of debts, under section 2939, Revised Statutes 1899, on the ground that she is the widow of Eli Keen, and that he died without any child or other descendants in being, capable of inheriting. The defendant clams to be the legitimate child of an alleged common law marriage between Eli Keen, a white man, and Phoebe, a negro woman.
There was a judgment below for the plaintiff and the defendant appealed. At the request of the parties the circuit court made a special finding of facts, together with conclusions of law, separately stated, which it is agreed is a fair statement of the facts, except that the defendant says that while the court found that Eli Keen and Phoebe lived together and cohabited without the sanction of marriage, and that the reputation was that they had never been married, it should have said they were never married “by ceremony,” but as hereafter shown the finding of the court covers both a ceremonial and a common law marriage, and the addition of the words “by ceremony” would materially narrow the finding of the court, and would beg the very question involved in this case. For there is no pretense that there was any ceremonial marriage, and the only question is, was there a common law marriage? The addition of the words “by ceremony” would, therefore, leave the question of common law marriage an undecided question in the case, and it is plain that such a marriage was intended to be decided by the court as well as a ceremonial marriage.
This is an action at law, and, by consent, was tried by the court without the aid of a jury. There is abundant testimony to support the finding of facts by the court, and, therefore, that finding of fact is conclusive upon the parties in this court. No instructions were asked or given, and the only question here, therefore, is, did the facts found warrant the conclusions of law reached by the trial court?
[367]*367The finding of fact is as follows:
“Eli Keen was a white man, and about 1847 or 1848, being then under twenty-one years- of age, removed to St. Charles county, Missouri, with his father, and settled in this country about that time. The woman, Phoehe, was a negro woman, and with a child, Martha, was held and owned as a slave by' the father of Eli Keen.
“On June 1, 1850 or 1851, at the administrator’s sale of his father’s personal estate and slaves, Eli Keen became the purchaser of the negro woman, Phoehe, and her child, Martha, and thereby became the owner of them and held them as slaves. Sometime after he became the owner of Phoebe, the negro woman, about 1850 or 1851, Eli Keen began cohabiting with her and continued cohabiting with her down to about 1882 or 1883. As the fruits of their intercourse, eight children were horn, who are now living, the defendant Ellis Keen being the first born, and now in the fifty-first year of his age. Of these children, six were horn prior to the general emancipation of slaves in this State in 1865, and two were horn, after that date, the youngest being horn January 2,1868.
“Eli Keen owned his own farm and home place in St. Charles county, and from the time he began cohabiting with Phoehe, the negro woman, in 1850 or 1851, he lived in his own home, on his own farm, and Phoebe lived in the same house with him and did the housekeeping. They occupied the same room and the same bed. They ate at the same table, and as the children were horn they ate at the same table with Eli Keen and Phoebe, Eli Keen sitting at one end of the table and Phoebe at the other. The children called Eli Keen ‘pa’ and Phoehe ‘ma’ and this was doné in the presence of Eli Keen and Phoehe without protest or objection from either of them. Eli Keen called the woman Phoebe and she [368]*368called Mm Eli. Eli Keen and Phoebe and the children born of their relations lived together as one family. They cared and provided for them (the children) and treated them like parents ordinarily treat their legitimate children. After the close of the war of rebellion a public district school for the education of negro children was organized under the laws of Missouri, and a public school building was erected for this purpose within a few hundred yards of Eli Keen’s residence, the site for such building being given by Eli Keen on his home farm. Eli Keen and Phoebe sent their cMldren to this school and for two terms after this school started, Eli Keen and other patrons, at the expiration of the four months’ term of the public school, employed the teacher and extended the term two months longer. Several of the older children, the defendant among them, were sent off to school in Iowa and Tennessee, Eli Keen paying all the expenses.
“Phoebe and the children were in the habit of dealing with the merchants in St. Charles and bought goods which were charged to Eli Keen, and Eli Keen paid the bills. A physician was called to visit the children when sick, wMch he charged to Eli Keen and Eli Keen paid the bills. Eli Keen at his own house introduced Phoebe to several different persons as Ms wife. To several persons, after his marriage to the plaintiff, Sophroma K. Keen, Eli Keen spoke of Phoebe Keen as his wife. So far as the evidence showed', Eli Keen was never seen out with Phoebe except when in his own house or yard. He was never seen off of the place with her. He was never known to visit friends with her. He was never known to introduce her to anybody as his wife outside of his own home, and he was never known to be with her and acknowledge her as his wife outside of Ms own house.
“WMle it was a known fact in the community in which they lived that Eli Keen and Phoebe were living together and cohabiting and raising a family of cMldren [369]*369as above detailed, it was the reputation in the community that they were so living together and cohabiting without the sanction of marriage. The reputation was that they had never been married.
“As the children grew up the evidence shows that Eli Keen put the sons, Ellis, Reason, Mathew and Mark on tracts of land owned by him and allowed them to occupy and use the same without charging them any rent. That he advised and consulted with them about the management of their affairs., That in his last will and testament executed September 5, 1900, he devised his entire estate to these children born of the relations between him and Phoebe, except the provision therein made for his wife, Sophronia K. Keen, the plaintiff, and in his will he designates and mentions them as his ‘beloved children. ’ That in his will be devised the tract of land upon which the defendant now lives, and which is in controversy in this suit, to Ellis Keen, the defendant. That by his father’s permission he had been living on this land since 1892, his father, Eli Keen, charging him no rent for the same. That the other sons, Reason, Mathew and Mark, were at and before Eli Keen’s death, living on the farms that were respectively devised to them in the will, and they are still living on such farms.
“By deed dated November 22, 1883, and recorded December, 1883, Eli Keen conveys his old home farm in St.
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MARSHALL, J.
This is an action in ejectment to recover an undivided one-half of seventy-one and sixty-seven hundredths acres of land, being a part of United States survey No. 1765, in St. Charles county, Missouri. The petition is in the usual form and the ouster is laid as of March 2, 1901. The answer is a general denial.
Eli Keen is the common source of title. The plain[366]*366tiff claims one-half of the land, subject to the payment of debts, under section 2939, Revised Statutes 1899, on the ground that she is the widow of Eli Keen, and that he died without any child or other descendants in being, capable of inheriting. The defendant clams to be the legitimate child of an alleged common law marriage between Eli Keen, a white man, and Phoebe, a negro woman.
There was a judgment below for the plaintiff and the defendant appealed. At the request of the parties the circuit court made a special finding of facts, together with conclusions of law, separately stated, which it is agreed is a fair statement of the facts, except that the defendant says that while the court found that Eli Keen and Phoebe lived together and cohabited without the sanction of marriage, and that the reputation was that they had never been married, it should have said they were never married “by ceremony,” but as hereafter shown the finding of the court covers both a ceremonial and a common law marriage, and the addition of the words “by ceremony” would materially narrow the finding of the court, and would beg the very question involved in this case. For there is no pretense that there was any ceremonial marriage, and the only question is, was there a common law marriage? The addition of the words “by ceremony” would, therefore, leave the question of common law marriage an undecided question in the case, and it is plain that such a marriage was intended to be decided by the court as well as a ceremonial marriage.
This is an action at law, and, by consent, was tried by the court without the aid of a jury. There is abundant testimony to support the finding of facts by the court, and, therefore, that finding of fact is conclusive upon the parties in this court. No instructions were asked or given, and the only question here, therefore, is, did the facts found warrant the conclusions of law reached by the trial court?
[367]*367The finding of fact is as follows:
“Eli Keen was a white man, and about 1847 or 1848, being then under twenty-one years- of age, removed to St. Charles county, Missouri, with his father, and settled in this country about that time. The woman, Phoehe, was a negro woman, and with a child, Martha, was held and owned as a slave by' the father of Eli Keen.
“On June 1, 1850 or 1851, at the administrator’s sale of his father’s personal estate and slaves, Eli Keen became the purchaser of the negro woman, Phoehe, and her child, Martha, and thereby became the owner of them and held them as slaves. Sometime after he became the owner of Phoebe, the negro woman, about 1850 or 1851, Eli Keen began cohabiting with her and continued cohabiting with her down to about 1882 or 1883. As the fruits of their intercourse, eight children were horn, who are now living, the defendant Ellis Keen being the first born, and now in the fifty-first year of his age. Of these children, six were horn prior to the general emancipation of slaves in this State in 1865, and two were horn, after that date, the youngest being horn January 2,1868.
“Eli Keen owned his own farm and home place in St. Charles county, and from the time he began cohabiting with Phoehe, the negro woman, in 1850 or 1851, he lived in his own home, on his own farm, and Phoebe lived in the same house with him and did the housekeeping. They occupied the same room and the same bed. They ate at the same table, and as the children were horn they ate at the same table with Eli Keen and Phoebe, Eli Keen sitting at one end of the table and Phoebe at the other. The children called Eli Keen ‘pa’ and Phoehe ‘ma’ and this was doné in the presence of Eli Keen and Phoehe without protest or objection from either of them. Eli Keen called the woman Phoebe and she [368]*368called Mm Eli. Eli Keen and Phoebe and the children born of their relations lived together as one family. They cared and provided for them (the children) and treated them like parents ordinarily treat their legitimate children. After the close of the war of rebellion a public district school for the education of negro children was organized under the laws of Missouri, and a public school building was erected for this purpose within a few hundred yards of Eli Keen’s residence, the site for such building being given by Eli Keen on his home farm. Eli Keen and Phoebe sent their cMldren to this school and for two terms after this school started, Eli Keen and other patrons, at the expiration of the four months’ term of the public school, employed the teacher and extended the term two months longer. Several of the older children, the defendant among them, were sent off to school in Iowa and Tennessee, Eli Keen paying all the expenses.
“Phoebe and the children were in the habit of dealing with the merchants in St. Charles and bought goods which were charged to Eli Keen, and Eli Keen paid the bills. A physician was called to visit the children when sick, wMch he charged to Eli Keen and Eli Keen paid the bills. Eli Keen at his own house introduced Phoebe to several different persons as Ms wife. To several persons, after his marriage to the plaintiff, Sophroma K. Keen, Eli Keen spoke of Phoebe Keen as his wife. So far as the evidence showed', Eli Keen was never seen out with Phoebe except when in his own house or yard. He was never seen off of the place with her. He was never known to visit friends with her. He was never known to introduce her to anybody as his wife outside of his own home, and he was never known to be with her and acknowledge her as his wife outside of Ms own house.
“WMle it was a known fact in the community in which they lived that Eli Keen and Phoebe were living together and cohabiting and raising a family of cMldren [369]*369as above detailed, it was the reputation in the community that they were so living together and cohabiting without the sanction of marriage. The reputation was that they had never been married.
“As the children grew up the evidence shows that Eli Keen put the sons, Ellis, Reason, Mathew and Mark on tracts of land owned by him and allowed them to occupy and use the same without charging them any rent. That he advised and consulted with them about the management of their affairs., That in his last will and testament executed September 5, 1900, he devised his entire estate to these children born of the relations between him and Phoebe, except the provision therein made for his wife, Sophronia K. Keen, the plaintiff, and in his will he designates and mentions them as his ‘beloved children. ’ That in his will be devised the tract of land upon which the defendant now lives, and which is in controversy in this suit, to Ellis Keen, the defendant. That by his father’s permission he had been living on this land since 1892, his father, Eli Keen, charging him no rent for the same. That the other sons, Reason, Mathew and Mark, were at and before Eli Keen’s death, living on the farms that were respectively devised to them in the will, and they are still living on such farms.
“By deed dated November 22, 1883, and recorded December, 1883, Eli Keen conveys his old home farm in St. Charles county, the place where he and Phoebe lived for so many years, to Phoebe, designating her as ‘Phoebe Keen,’ she to have and to hold for and during her natural life, and providing therein that upon the death of Phoebe and of himself, Eli Keen, the title to said farm should vest in Lettie Ann Skinner, Phoebe Wise, Mary Phillips, and Alice Cora Brown, the daughters of said Phoebe Keen. In this deed Eli Keen expressly reserves to himself 'the use of one room in the house, which he designated in the deed as the room now occupied .and used by him. In this deed Eli Keen [370]*370does not describe or designate Phoebe as his wife, nor does he mention or designate these daughters of Phoebe as his children.
“About 1882 or 1883, the exact date does not accurately appear from the testimony, the intercourse between Eli Keen and Phoebe Keen ceased. She remained in this home farm for several years, and then moved to St. Charles, Missouri, where she lived to the date of her death in 1896. About 1883 Phoebe ceased to buy goods at the stores on Eli Keen’s credit. Her bills were thereafter charged to Phoebe Keen and she paid them.
“On August 22, 1883, Eli Keen was married to the plaintiff, Sophronia K. Keen (nee Barrett), in Wood county, West Virginia, upon license issued in accordance with the laws of West Virginia. The ceremony was performed by a minister of the gospel of the Methodist Episcopal Church South, and from the date 5f their marriage, down to the date of Eli Keen’s death, on February 22, 1901, they have lived together as husband and wife. Prior to their marriage Eli Keen informed the plaintiff that he was an unmarried man, and had no children or other persons dependent upon him. The plaintiff had no knowledge or information whatever of Eli Keen’s relations with the negro woman, Phoebe, until a number of years after her marriage with him, and in fact received no definite information concerning these relations between Eli Keen and Phoebe, until very shortly before Eli Keen’s death, namely in December, 1900.
“Eli Keen left no child or children or other descendants in being other than the defendant Ellis Keen and his brothers and sisters, the children of the relations with Phoebe, the negro woman.
“The plaintiff in due form of law filed her renunciation of the last will and testament of Eli Keen, her husband, on April 1, 1901, declining to accept the provisions made for her in said will.
[371]*371“On April 1, 1901, by her election in writing executed, acknowledged, filed and recorded according to law, plaintiff elected to take one-balf of ber husband’s estate, subject to the payment of his debts under the provisions of section 2939, Revised Statutes 1899.
“The tract of land described in the petition was owned by Eli Keen at the time of his death. The defendant is in possession thereof. It is all in cultivation and the rental value thereof is four dollars per acre per annum. Eli Keen told other parties that he had never been married! until he married the plaintiff in 1883. There was no evidence of any kind of any marriage contract or agreement between Eli Keen and the negro woman, Phoebe, other than is set forth in the above statement. The course of living between them continued and remained the same from the beginning of their cohabitation in 1850 or 1851 down to their final separation and the cessation of their intercourse in 1882 or 1883. In the deed made by Eli Keen to Phoebe in November, 1883, conveying to her the old' home place, above-mentioned, although made after Eli Keen’s marriage to plaintiff, the plaintiff did not join.”
“conclusions or law.
“My conclusions of law from the above facts are that no marriage at common law ever existed between Eli Keen and Phoebe Keen, and that Eli Keen died without any child or children, or other descendants in being capable of inheriting from him, and that plaintiff is entitled to recover possession of one undivided half of the lands described in petition. Damages are assessed at the sum of one hundred and fifty-six, dollars. Monthly rents and profits are assessed at the sum of $11.94.”
I.
Marriage.
At the time Eli Keen and Phoebe began living together and cohabiting in 1850 or 1851, the law of this [372]*372State was that: • “Marriage is considered in law as a civil contract, to which the consent of the parties capable in law of contracting is essential.” [R. S. 1845, ch. 115, sec. 1.] Eli Keen was a white man, and Phoebe was a negro, and the law of this State at that time further provided: “All marriages of white persons with negroes or mulattoes áre declared to be illegal and void.” [R. S. 1845, ch. 115, sec. 3.]
These provisions were carried without -change into the revision of 1855. [R. S. 1855, ch. 108, secs. 1 and 3.] Section one aforesaid was carried unchanged into the revision of 1865. [Gr. S. 1865, ch. 113, sec. 1.] And section three was consolidated with section two of the prior revisions so as to make it read: “All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as of the whole blood, and between uncles and nieces, aunts and nephews, white persons and negroes, are prohibited and declared absolutely void; and this prohibition shall apply to illegitimate as well as legitimate children and relatives.” [Gr. S. 1865, ch. 113, sec. 2.]
Section 1 aforesaid has been carried into all the subsequent revisions and is now the law in this State. [R. S. 1879, ch. 50, sec. 3264; R. S. 1889, ch. 108, sec. 6840; R. S. 1899, ch. 50, sec. 4311.]
• Sections 2 and 3 as thus consolidated were carried without change into the revision of 1879. [R. S. 1879, ch. 50, sec. 3265.] By the revision of 1889 said consolidated section was amended so as to insert between the words “aunts and nephews,” and the word's “white persons and negroes, ’ ’ the words ‘ ‘ first cousins. ’ ’ And the section as so amended was carried into the revision of 1899 (R. S. 1899, ch. 50, sec. 4312) and is the law now.
Thus it appears that, under the laws of this State, marriage has always been considered “as a civil con[373]*373tract, to which the consent of parties capable -in law of contracting is essential.”
The courts of this State in dealing with common law marriages have always held that “marriage is a civil contract, to which the consent of parties capable in law of contracting is essential.” [State v. Bittick, 103 Mo. l. c. 191; State v. Cooper, 103 Mo. l. c. 273; Banks v. Galbraith, 149 Mo. 529.]
There is no pretense in this ease that there was any ceremonial or statutory marriage between Eli and Phoebe and as he was a white man and she was a negro, there could never have been a legal ceremonial or statutory marriage between them. From the time their relations began in 1850 or 1851, until the emancipation of slaves, Phoebe was incompetent to make any kind of a civil contract, and if she had during that time attempted to enter into a common law marriage it would be void, and she could have repudiated it after she became free. [Johnson v. Johnson, 45 Mo. 595.]
When Eli and Phoebe began their relation to each other and until 1865 it was not possible or legal for them to have entered into the civil contract of marriage, because she was not competent to contract, and because any such thing as a marriage between them was then and is now illegal and void. In addition to this the trial court found the fact to be that there never was any common law marriage entered into between them.
It is argued, however, that although she was not capable of contracting marriage prior to 1865, nevertheless at that time she became capable in law of doing • so, and that as she continued the relations with Eli after that time and until 1882 or 1883, a common law marriage must be presumed. There are several very potent reasons that would deter any court from indulging in any such presumption, to-wit: First, the law made such a marriage illegal and void (and since 1879 such a marriage has been a crime that might be punished as a felony or a misdemeanor. E. S. 1879, ch. 24, [374]*374sec. 1540'; R. S. 1889, ch. 47, art. 8, sec. 3797; R. S. 1899, ch. 15, art. 8, sec. 2174), and therefore no one will he presumed to have entered into or attempted to enter into, an illegal and void marriage; second, the trial court found the fact to he that there never was any such common law marriage entered into after or before 1865; third, there was no change in their manner of living together after 1865; and, fourth, the conduct of Eli and Phoebe after 1865 shows that they never had entered into any common law marriage at any time. For instance, in 1882 or 1883 they ceased to live together, their relations terminated. She remained on his farm for several years after that and then moved into St. Charles, where she lived up to the time of her death in 1896, and he went to West Virginia and on August 22, 1883, he married the plaintiff herein and continued to live with her until his death in February, 1901.
In view of these facts no court would indulge a presumption of a common law marriage, for one of the things that must appear to warrant the: existence of a common law marriage is that the contract between the contracting parties was that the relation of husband and wife should continue for their joint lives and that neither one, nor both, could rescind the contract or destroy the relation. [State v. Cooper, 103 Mo. l c. 273; Banks v. Galbraith, 149 Mo. l. c. 536.] The conduct of the parties is a conclusive demonstration that Eli and Phoebe never entered into a common law marriage.
The defendant, however, contends that the case of Lee v. Lee, 161 Mo. 52, is decisive of this case, because, it is said, while Phoebe was incapable of making or entering into a contract of marriage prior to 1865, still as Eli was her master, his consent could supply her want of capacity to contract, and that the effect of his marriage to her was to manumit her. Lee v. Lee, supra, was, however, essentially different from the case at bar. The facts in that case were that a marriage before [375]*375the war between two slaves, with the consent of a master, had been entered into, and afterwards dissolved with his consent, and another marriage entered into by the man with another slave, with the consent of the master, and a marriage ceremony performed between the latter after their emancipation, and after the man’s death a snit in partition was begun between the children of the first marriage and the widow of the second marriage and her children, and the question was whether the children of the first marriage were entitled to inherit from the man. It was expressly said that it was not necessary to decide whether the first marriage was legal or not, because by section 2920, Revised Statutes 1899, it was provided that “the children of all persons who were slaves, and were living together in good faith as man and wife at the time of the birth of such children, shall be deemed and taken to be legitimate children of such parents,” and upon this statute the decision was rested.
No such case is here presented, and hence that decision affords no support for the contention in this case.
The result is that there never was any kind of a marriage between Eli and Phoebe — either ceremonial, statutory, or common law.
II.
The defendant contends, however, that as section 2918, Revised Statutes 1899, provides that “the issue of all marriages decreed null in law, or dissolved by divorce, shall be legitimate, ” the defendant is a legitimate child of Eli Keen, and capable of inheriting from him; and’ further contends that this section was not intended to legalize void marriages, but to make the children of illegal or void marriages legal. And’ incidentally it is urged, that in Green v. G?een, 126 Mo. 17, it was held that children of a marriage entered into in good faith hy a woman, with a man who had a wife at the time, were legitimate, and hence, it is claimed that as marriages, where either party has a former wife or hus[376]*376band living, are declared to be- void (R. S. 1899, sec. 4313), and as the marriage between parents and children, grandparents and grandchildren, brothers and sisters, uncles and aunts, nephews and nieces, and between first cousins, are prohibited and declared by the same section of the statutes to be void that prohibits marriages between whites and negroes and declares such marriages to be void, therefore, the children of a marriage between a white person and a negro, are as much legitimate under- section 2918, supra, as the children of any of the other marriages so prohibited or declared void.
The logic employed and the conclusion reached might be conceded, but it would avail defendant nothing in this case, for the simple reason that there was no marriage of any land between Eli and Phoebe and therefore the statute relied on (sec. 2918, R. S. 1899) can have no application here.
This case is different from the case of Green v. Green, supra, in this, that in that case Green “was married in due form, ’ ’ while here there was no marriage of any hind or character shown. Hence the application of the statute (sec. 2918, R. S. 1899), to the children of the Green marriage, and the inapplicability of the statute to the case at bar.
The conclusion follows that the judgment of the circuit court was right, and it is therefore affirmed.
All concur, except Robinson, Jabsent.