Phillips v. Gregg

The validity of a marriage is to be determined by the law of the place where it was celebrated: if valid there, it is valid everywhere. Foreign laws cannot be judicially noticed, but must be proved as facts; and in making such proof, the general principle is applicable, that the best evidence the nature of the case admits of, must be given. But this rule may be relaxed or changed, as necessity, either physical or moral, may require, and where a rigid adherence to it may produce extreme inconvenience or manifest injustice. If a parent purchase land in the name of his son, it will, primafacie, be deemed an advancement, so as to rebut the presumption of a resulting trust for the parent. The amount of an advancement by a parent to a child must be ascertained by the value of the thing a't the time of the gift. If a parent purchase land in the name of a child, the amount of the purchase-money paid, is the amount of the advancement, and not any increased value which the land may afterwards possess. The possession of one tenant-in-common, is, prima facie, the possession of his co-tenant also, unless it be attended with circumstances demonstrative of an adverse intent, such as demand by his co-tenant of his share of the rent, and a refusal to pay, saying he claims the whole.

ERROR to the district court of Allegheny county. Oliver O. Gregg and Christian Johnson against Elias Phillips and Jacob Poth. This was an action of ejectment for 70 acres of land on Coal Hill; consisting of nineteen coal lots, and another lot adjoining, of about 35 acres. The land was conveyed by the proprietaries to John Ormsby, Sen., by deed, dated September 7, 1791. John Ormsby, Sen. died intestate, in December 1806, leaving two of his five children, Oliver and Mrs Sidney Gregg, surviving him. Mrs. Bedford and Joseph had died, without issue, before their father. John Ormsby, Jun. had also died in 1795. The plaintiffs claim as the purchasers of the title of Mary Swazey, who they allege is a daughter of John Ormsby, Jun., and therefore entitled to inherit the one-third of the estate of her grandfather, as tenant-in-common with Oliver Ormsby and Sidney Gregg. Oliver Ormsby died in 1832, and the landlords of defendants are his children and heirs. The defendants relied upon three grounds of defence: 1. That Mary Swazey was not the legitimate daughter of John Ormsby, Jun., and this involved the legal objection to the sufficiency of the evidence to establish the validity of the marriage of John. Ormsby, Jun. 2. That John Ormsby, Jun. had- been fully advanced by his father in his lifetime. This ground of defence involved the inquiry, as of what time the value of an advancement in land is to be made, and by what rule it is to be ascertained. 3. That the plaintiffs were barred by the act of limitations: and this involved the inquiry, what acts of exclusive ownership will be evidence of adverse possession of one teuant-in-common against his co-tenant. The evidence given upon the trial was exceedingly voluminous, but the points raised by it will be sufficiently understood by the statement of it, contained in the following charge of the court to the jury: Grier, President. — The first question for your consideration is, whether Mary Swazey (the wife of Gabriel Swazey) was one of the heirs at law of John Ormsby, Sen. It is admitted that John Ormsby, Sen. had five children, two of whom (Mrs Bedford and Joseph Ormsby) died before their father, and without issue.- Oliver Ormsby and his sister (Mrs Sidney Gregg) survived their father. John Ormsby, Jun. (the other son) also died before his father; and the plaintiffs claim, that Mary Swazey was the daughter and only child of John Ormsby, Jun. and is therefore entitled to the one-third of the estate of her grandfather, John Ormsby, Sen. That this Mary Swazey is the daughter of John Ormsby, by his reputed wife, (Lydia, daughter of Nathan Swazey,) is clearly proved, and has not been seriously denied. But defendant’s counsel contend, that there is no evidence, or at least not sufficient evidence, that the marriage of John Ormsby with Lydia Swazey was valid. And as the learned counsel have condensed their able argument on this subject into a number of points, on which they have prayed the opinion of the court, it will be best, perhaps, to examine this subject, with reference to them. And we answer to these points: 1. They contend that (as between persons suvjuris) marriage is to be decided as to the law of the place where it is celebrated. If valid there, it is everywhere. It has a legal ubiquity of obligation; if invalid there, it is equally invalid everywhere. 2. If it be insisted that marriage has been solemnized according to the laws of the country where the marriage took place, it is necessary to prove what the law of that country was. 3. The existence of a foreign law or custom, is to be proved (as a matter of fact) by evidence to show what the law or custom is, and the court cannot presume that the law of a foreign country agrees with the law of our own in any particular point. 4. Marriage is a contract sui generis, which is regulated not by private contract, but by public laws of the state, which are imperative on all who are domiciled within its territory. 5. The onus of proof of a foreign law, like the burden of proof of other facts resting upon the party who claims, by virtue of a contract alleged to be made in conformity to it, he must prove it by competent testimony; if written, by documentary evidence; if unwritten, by the attestation of tribunals, or proofs of persons in a situation to be conversant with it; and in the absence of such testimony, he must be considered as failing in his proof. 6. The marriage between John Ormsby, Jun. and Lydia Swazey (the mother of the plaintiff) is alleged by Mrs. Sarah Swazey to have taken place some time before 1791. In answer to the third interrogatory, she says; “ That John Ormsby married Lydia Swazey about forty years since; that they were married by Justice King, who was duly authorized todo so by the Spanish government, and who was in the habit at that time of marrying a great number of persons; that she was present at the marriage, and waited as bridesmaid upon Ormsby’s wife; that he lived with his wife about three years after his marriage, during which time the said Mary was born.” The courtis requested to charge the jury, that supposing these to be the facts of the case, there is no sufficient proof before them of the validity of the alleged marriage; that at the time of the alleged marriage, the country of the domicil of the parties was under the government and jurisdiction de facto of the king of Spain; that the validity of such marriage must be tested by Spanish laws; that foreign laws must be established by professors of the law of the country, or that the law regulating marriage must be procured and shown to be the existing law of the country at the time. 7. That the declaration of the parties, common reputation of the country, and cohabitation, and birth of the children during cohabitation, although circumstances from which a marriage may be presumed, in absence of direct testimony, of the fact of marriage; yet when the marriage ceremonies of the act are fully testified to, it is incumbent on the parties alleging the marriage, to show that it was performed in conformity to the law of the domicil; and failing to do that, the proof of the legitimacy of the offspring of such cohabitation entirely fails. 8. .That taking all the evidence given in this case to be true, there is no fact or accumulation of facts, from which the jury can infer the validity of the alleged marriage between John Ormsby, Jun. and Lydia Swazey. 9. That if any just inference can be drawn from the facts of the case, in relation to the alleged marriage, it must be against the validity. 10. That there is no proof that the marriage alleged to have taken place between John Ormsby, Jun. and Lydia Swazey, was a valid marriage, according to the law of the domicil. In answer to these points, the court instruct you— .'That the first five correctly state the general principles of the law on this subject, although subject to many exceptions, not necessary to be here enumerated. Story’s Conflict of Laws, sects. 118, 119, 120, &C. ...But the court are not prepared to concur in all the inferences, or the results which are alleged necessarily to follow in their application to the present case, as drawn by the learned counsel, in the last five points. It is true that by the evidence in this case, the Natchez country, (as it was then called), in which this marriage was contracted, was at that time under the Spanish government de facto, through a mistake of the true boundary line; and that, as a general rule of law, the validity of the marriage must be tested by the lex loci; and that the party alleging its validity should show that it was valid by the customs and laws of the country. But to apply the same rules and mode of proof to every case of foreign marriage which may be found laid down in the English and European courts, would be exceedingly oppressive and unjust. It was but a short time that this portion of the country was under the Spanish government, having changed more than once from France to Spain, and back again. The laws and customs of these distant colonies often differed greatly from those of the mother country, from sheer necessity. The governors, appointed by the king of Spain, had general absolute political powers, both legislative and executive. This colonial government has ceased to exist for near half a century. These edicts of the governor, and the customs of the province, are not preserved in any accessible shape or known locality. It would be useless to ransack the musty records of San Ildefonso for the appointment and powers of the governor, or seek for records of his temporary edicts, or to expect a modern Louisiana lawyer to testify to the fleeting customs and changing laws of a government defunct a half a century ago. It would be as reasonable to expect record proof of acts of parliament among the Winnebago Indians, as to suppose that the local customs and temporary, edicts of the early Mississippi colonial governments should be found registered and enrolled, or stereotyped in books, like the laws of the different European states, which have undergone little change for centuries. To exact, therefore, in all cases, the same unbending mode of proof, would be hard and unjust, and would be establishing a rule which would bastardize one-half the descendants of the early settlers on the Mississippi. The court cannot, therefore, consent to charge you, as requested by defendant’s counsel, that the proof of the marriage of John Ormsby, Jun. with Lydia Swazey, is not sufficient, in law, to establish that fact. On the contrary, if they believe the witnesses, that it was customary for protestants to be married by a justice of the peace, that such a regulation had been made by the governor, (who was the government,) at the request of the protestant immigrants, and that such marriages were held valid by the political power of the state, it matters little what opinion the catholic priests might have of the matter. It is not probable that ecclesiastics who hold marriage to be a sacrament, or religious ordinance, and, therefore, wholly within their control, would be disposed to uphold customs and laws so contrary to their prejudices and interests, although such marriages among protestants are sanctioned by the comity and laws of almost every catholic government in Europe, and reprobated by few, save the ignorant and fanatical rabble of Mexico. I am of opinion, therefore, that from the history and circumstances of the country, it would be almost impossible to give evidence of a higher nature, tending to show a valid marriage fifty years ago, in the settlements on the Mississippi, and that, if the jury believe the testimony, they may be justifiable in pronouncing the marriage valid. The very peculiar situation of this country at that time, (the territory being actually a portion of the United States, and claimed to be under Spanish authority by mistake of the true situation of the boundary line,) would render it very probable that the government de facto would, in the unsettled and uncertain state of the country, while the Americans were commencing settlements under claim of right, not be disposed to refuse the comity usually allowed by government to the conscientious scruples of persons of different religious creeds. In such unsettled times, if it appears, from the testimony of ancient witnesses, (whether lawyers or not,) that marriages were made before a magistrate by the license of the governor de facto, which were common, and esteemed and reputed valid marriages at the time, it would matter little what view a catholic priest might be disposed to take of them; and yet I doubt whether even by the common law, the fruit of such a marriage would be treated as illegitimate; but it is unnecessary to decide that point at present. The credibility of these witnesses is, of course, for the consideration of the jury. If this connection was not intended or considered by the parties as a valid and binding marriage, but a mere temporary concubinage, of course the fruit of it could not inherit; but if it was celebrated as testified, and intended andv treated by the parties for a time as a valid marriage, during which time Mary was born, the mere fact that after a separation ha.d taken place, the wife may have married again, under the advice of a priest, who may have acted as her conscience-keeper, will not affect the legitimacy of the child. If you find that this marriage was valid under these instructions, and that Mary Swazey is the legitimate child of John Ormsby, Jun., you will, of course, perceive that the plaintiffs will be able to recover according to their claim in this case, unless the defendants have shown some good defence. They have set up two other grounds of defence: 1. That John Ormsby, Jun. was advanced by his father to his full share of his father’s estate, and therefore had no claim to any further portion thereof. If this be trite in fact, it would constitute a good defence to the plaintiff’s claim. Is it supported by the evidence? An advancement is an irrevocable gift by a parent in his lifetime to his child, on account of such child’s share of his estate after the parent’s decease. Hengst’s Estate, 6 Watts 86. What are the facts in the case? On the 1st April 176.9, John Ormsby, Sen., entered three applications for adjoining tracts of land, one in his own name, one in the name of his son John, and one in the name of his son Oliver. That he intended these applications for his two children, (who were very young at that time,) is evident from the fact that he suffered them both to treat them as their own. He took out no patents for them, himself, but left his sons to complete the titles on their respective tracts, by taking out patents when they came of age, which would show pretty clearly that he did not use his childrens’ names for himself, but intended as a gift or advancement to each, of the money paid for them, in entering their respective applications. When Oliver came of age he paid the purchase-money of his, and got a patent; and John, when he came of age, being indebted to his father, conveyed his tract to his mother, (by whom it was afterwards sold,) and the purchase-money applied to the payment of John’s debt to his father, after he (John) had left this Country. Now, wherein has John been advanced more than Oliver? — and what right has Oliver to say that John shall be charged with the advanced value of his tract, when it was sold to pay his debt to his father, as an advancement; and because Oliver retained his tract, he is to be charged nothing. I question, if Oliver ever thought of such a thing, and it was left to the ingenuity of the counsel for his heirs to make the discovery. Besides, if a man haying several children, and being owner of one or more tracts of land, should make a deed to one of his sons' of his proportionate share of his father’s estate, it should justly be called an advancement to that proportion. But, if a man, having two sons, should give one the one-fourth in value of his estate, and by the labour and improvements of that son, or from any other circumstance, that advancement should rise in value to be equal to the other three-fourths of the father’s'estate at the time of his death, the value of the advancement, would be reckoned at the time it was advanced, and not at the time of the parent’s death. Oyster v. Oyster, 1 Serg. Rawle 422. Again, if a parent should contract with A B for a tract of land for one of his sons, and pay the hand money, say 100 dollars, and leave his son to go on, pay the balance of the purchase-money, and complete the contract, and get his legal title, in calculating the value of the advancement to this son, it would be the money paid by the father when he made the contract, and not the whole value of the tract after it was paid for and improved by his son. What did the father do more, in this case, for John? He paid 7 shillings 6 pence for the application and the surveyor’s fees; 5 dollars, perhaps, for John, and left him to complete his title. He did the same for Oliver; and, if this be a correct view of the facts, I cannot see with what propriety the h.eirs of Oliver can set up this as a defence in this case, more especially after O. Ormsby took possession of the whole personal estate of his father, and never rendered any account. 2. But the last, and main point, relied on as matter of defence in this case, is the statute of limitations. In order to gain a title by the statute of limitations, there must be a continuous, notorious, and adverse possession for twenty-one years. That Oliver Ormsby and his heirs have had the possession of this property for upwards of thirty years, is not denied; and the only question is, whether this was an adverse possession, claiming it as his own, in exclusion of his co-tenants. This is a question of fact for you to decide on the principles of law which shall be laid down to you by the court. “ The possession of one tenant-in-common, is prima facie the possession of his companion also, and it therefore follows, that the possession of the one can never be considered as adverse to the title of the other, unless it be attended with circumstances demonstrative of an adverse intént, such as demand, by the co-tenant, of his share of the rent and refusing to pay, saying he claims the whole; or when one joint tenant bade the other go out of the house, and he went out accordingly. On the same principle it was decided that although the entry of one is, generally speaking, the entry of both, yet if he enter claiming the whole to himself, it will be adverse.” Lodge v. Patterson, 3 Watts 76. When one tenant-in-coinmon enters and takes the whole rents and profits for thirty or forty years, or even for twenty-one years, a jury may presume an ouster; and there might be cases when a jury ought to presume an ouster — as, when one tenant takes exclusive possession of the whole property, and the other stands by and sees him do it, makes no demand, especially if he be needy, and no reason can be assigned why, if he had any claim, he should not pursue it immediately; and there might be cases when one tenant-in-common might receive and appropriate all the rents for more than twenty or over thirty years, and yet a jury would not presume an ouster — as, when the children of a family are settled (as is so often the case in this country) over the face of the earth, and some of them are resident a thousand miles off, have no knowledge of the death of their ancestors, or have been purposely kept in ignorance of the rights by the son who takes possession; or when the party who takes possession, keeps an account of the rents received and expenses laid out, showing an intent to settle with the heirs when they shall appear, and many other like circumstances which may be easily imagined. Let us endeavour to apply these principles to the cirumstances connected with this case. At the death of John Ormsby, Sen., in December 1S06, Mrs Gregg, one of the heirs, is married, and living with her husband— (it is not in evidence when her husband died) — Mary, the granddaughter, is a minor resident in Mississippi; Oliver Ormsby, the other heir, is resident in Pittsburgh, a man of business, living near the premises, and having land of his own adjoining, he takes out letters of administration on his father’s estate. Now it is a very common custom in this country for the executor or administrator to take possession of the land, as well as the goods of the deceased, especially if the other heirs are at a distance and settled in the world; and much more especially if the estate of the deceased should happen to be encumbered with debts; as it is better for all concerned that the rents should be applied to the payment of the debts, than that any portion of the estate should be sold; it not unfrequently happens that by general consent of the heirs, the rents are received Toy the administrator, and so applied; and this is so frequently done, that in some parts of the country it is a prevalent notion that the administrator has a right so to do; accordingly, we find that Oliver Ormsby takes possession of all his father’s property and leases it out, and reserves the rents; and as his sister was living in the neighbourhood, (whose right to a share of the rents he could hardly be supposed to deny,) and yet no division is made or rents paid to her, it would render it very probable that the father’s estate was in debt, and it was deemed proper that the rents should be appropriated to that purpose. Now, as I have stated to you, when one tenant in common enters into possession, it is considered the possession of all his co-tenants, unless he show, by some unequivocal act, that he entered for himself alone, and claiming the whole. The presumption is, that every man acts honestly till the contrary is proved, or there be some evidence of a contrary intention. Now, if Oliver Ormsby had brought up some sham title to the whole estate — had set up a claim to it all, as his own — if he had even fraudulently confessed a judgment against his father’s estate, and had the land sold, and thus got a title to himself — however wrongfully — this would have been clear evidence of intention to claim the whole, in exclusion of his co-tenants, and the statute of limitations would have made his bad title a good one. If he had made a partition with his sister, (Sidney Gregg,) either denying the legitimacy of his niece, or, in ignorance of her existence, this would have been evidence of his holding adversely to her claim, and the statute would have run. Even if he had returned the land of his father’s estate to the assessor as his own, it might be a circumstance from which to infer that he intended to claim it as his own. Have you any evidence of any acts of Oliver Ormsby tending to show that he entered adversely to the other heirs, or set up any claim to the exclusive ownership when he entered, or at any time after, before the year 1S20, when he had the land assessed in his own name? The plaintiff’s counsel called on defendants to produce the books of Oliver Ormsby, in order to see if he had not kept an account with the heirs of the receipts from these lands, and expenditures for improvements and repairs. They were not produced. If their contents would have shown any thing to benefit defendants, it is not probable they would have withheld them, The taking out of this patent in trust for the heirs, and the taxing of these lands, as'the property of Ormsby’s heirs, up to 1S20, although they are circumstances that might not be absolutely inconsistent with a claim in Oliver to the exclusive ownership; yet, in the absence of evidence of any uneqnivocal act evincing such intention, they are corroborative of the prima facie conclusion, or inference of the law, that this entry of O. Ormsby was not adverse, but enured to the benefit of his co-tenants. The petition, in the orphans’ court, given in evidence, if it had related to this land, and had been followed by a division of it between O. Ormsby and his sister, would have been conclusive evidence either of his ignorance or denial of his niece’s claim, and of an,adverse possession from that time, though if you believe the testimony, (as the niece -was a married woifian at that time, and has ■continued so ever since,) the statute would not be a bar. The petition shows, if not ignorance of his niece’s existence or claim, yet that he did not feel certain enough of their existence to acknowledge them. One witness swears that he spoke to her concerning his niece, when she was a child, and it would seem not impossible, as it is evident, from-the titles produced, that they had some knowledge Of John’s marriage, and not at all unlikely, that, as he communicated to his brother his joy at hearing that his wife had got a divorce from a catholic priest, and got married again; that the history of his previous connection with her was no secret, although, probably, the family may have always had some doubts as to her legitimacy, owing to this letter of John’s about his wife’s conduct; for in the letter of O. Ormsby, of March 12, 1825, to his niece, he neither affirms nor denies her legitimacy, seems evidently willing to admit her claims, if he can be satisfied on that point, and although he speaks of knowing of John’s marriage by report, but denies that John acknowledged it, yet he speaks of having seen letters of his niece directed to his father and mothér. ' By this letter, and that of •March 1828,it evidently appears that he was much perplexed what 'to do on the subjéct. He expresses no intention of wronging his niece, or denying, hér claims, provided he is satisfied of her legiti■macy; but as, by this time, the value Of this property was beginning to appreciate very-fast, he seems evidently disposed -not to be too candid in letting her know the extent of her claims. He appears, also, by this letter, to have requested his friend (Mr Stockman) to forward any vouchers or papers which might tend to establish his niece’s rights. And this Mr. Stockman swears that, after examining into the subject, O. Ormsby acknowledged his niece’s claims, and hoped she could be induced to take s'ome definif'e sum for her release of ’them. This may account, also,.for his want of explicitness as to their amount in'his letter. In reviewing the whole circumstances of this case, the question must occur to almost every one, why'has this estate remained so long unsettled? Oliver Ormsby surely never intended to take his helpless sister’s share without compensation. Why not some partition between them, or settlement of the estate, if they did not suppose there was some distant claimant which might disturb it, whose claim, if fairly substantiated, they did not feel disposed to evade? In fine, as I have stated, the question of adverse possession is for you. The possession of one tenant in common is prima facie the possession of the other; but if you can find any unequivocal act of Oliver Ormsby, showing that he had denied the title of his niece, and intended to hold adversely to her, before May 1815, then the statute of limitations is a bar — if not, it cannot avail the defendants. on the subject of the evidence of marriage, cited Story’s Con. of Lazos 103; 1 Eng. Ecc. Rep. 365; 3 Phil. Ev. 58. On the subject of advancement, 4 Serg. 8? Razóle 333; 6 Walls 311; 5 Razóle 219; 2 Wms. Ex’rs 923, 937; 3 Pr. Wms. 317; 2 Pr. Wms. 441; 6 Res. 721; 8 Res. 51; 16 Mass. Rep. 202; 1 Jltle. 632; 1 Eng. Cond. Cha. Rep. 444; 4 Whart. 524; 2 Wash. 92S; Sorin on Wills 337,pi. 3, sect. 18; 1 Serg. 8? Razóle 312. on the first point, cited Story’s Con. of Laws 109, sect. 118,119, 120; Recopilación de leges de las Indias Lib. 7, tit. 22, Lazo 3. On the second point, 1 Serg. 8? Razóle 442; 6 Watts S6; 17 Mass. Rep. 358.