Senser v. Bower

For civil purposes, reputation and cohabitation are sufficient evidence of marriage. In all cases of conflicting presumptions on the Subject of legitimacy, that infavour of innocence shall prevail. The alienation of an improvement right by the widow, after thé death of her husband, leaving an infant two years of age, will not bar the right of such infant to recover the land, when it arrives at'full age, even if thé consideration received by the widow should have, been applied to the . support and maintenance of the child. ■ Query ? Whether there can be an abandonment of a right by an infant.

Error to the special court of Centre county, (Reed, president.)- This was an action of ejectment for one hundred and fifty acres of land brought by Andrew Bower and Susanna his wife, against John Senser and others. The evidence upon -which the plaintiff’s title was founded, was, that about 1796, Daniel Zinn left the house of a neighbour, with-Catherine Kiielinger, for the purpose of beibg married, they soon'1 returned, find it was understood that they were then man and; wife; that they lived and cohabited together as such, and had1 issue one daughter, the present plaintiff! That about 1798, they' moved to the land in dispute, cleared two or three acres and fenced it, built a cabin and stable, and resided there about three' years, when Daniel Zinn died. The evidence given for the defendants, as they contended, established two grounds of defence. First, they proved that many years1 before the alleged marriage of Catherine Kiielinger with Daniel Zinn, she and Jacob Kiielinger left the house of a neighbour, to go and be married, that they returned soon after as man and wife, lived and cohabited together as such, for several years, and had issue two sons; that Jacob Kiielinger went to the western country, and had been absent about seven years, when his wife married Daniel Zinn; there had been a report that he was dead, but about a year after Daniel Zinn died he returned and took up with his wife again. Upon this evidence, the defendants contended that the second marriage of Catherine Kiielinger was illegal and void, and the issue of it illegitimate; and therefore the plaintiffs could not recover. The second ground of defence was — that upon the death of Daniel Zinn, leaving his widow and infant daughter, the present plaintiff, the actual settlement was not complete, and at all events insufficient to support the widow and child, and therefore the widow sold what right they had to one Hinton, under whom t¡he defendants claim, and have been in possession for twenty-three'years before suit brought, having, during that time, made valuable improvements. It was also in proof that Susanna, the plaintiff, was raised and supported by her mother. Many points of law, growing out of these facts were'put to the court by the counsel on one side and the other, upon which they were requested to instruct the jury, all -of which were resolved into two questions. First. Whether,, under the evidence, Susanna Bower was' the legitimate daughter of Daniel Zinn, upon whom the law would cast an inheritance, and — Second. Whether the right which Daniel Zinn had, by virtue of the acts done upon the land, was such an inheritance as the law would cast upon the heir; or whether it was not such an imperfect right that might pass as a chattel. The court below was of opinion, that in every aspect of the case, the plaintiffs were entitled to recover; and so instructed the jury. To which opinion the defendants took an exception. The proof of each marriage of Catherine Kiielinger was the same, and the first marriage being first established, no other marriage could be established by the same kind of proof: the same witness who proved the marriage of the plaintiff’s father and mother, also proved that'the mother was then the wife of Jacob Kite-linger, who was in full life. The first marriage being thus proved by legal evidence, there can be no presumption of a second marriage, because it is a presumption of crimej The children of the ' first marriage are certainly legitimate, and that of the second is as certainly not so. The inceptive right to the land in dispute was sold for a valuable consideration, by the mother, when the plaintjff was two years old, and incapable of maintaining that right; and that consideration applied to her benefit and support: can she now, after the lapse of twenty-three years, recover this land from the defendants who have made it valuable by improvements, and who never had notice of any claim of the plaintiff. The plaintiff is now claiming in an equitable action, and surely she is met by a superior equity in the defendants. 1 Yeates, 523. An infant cannot maintain that kind of occupancy which is necessary to give or complete a right under the act of assembly. Mobely v. Oaker, 3 Yeates, 200. Clarke V. Heckelhorn, id. 269. 11 Serg. Rawle, 341. The effect of the infant receiving the benefit of the sale by the mother, 2 Dissesare, 232. 3 Dissesare, 20-24. 4 Dissesure, 445j. As to the legitimácy of the plaintiff, 3 Black. Com. 92. Davis v. Houston, 2 Yeates, 289. As to the lapse of time before suit brought. Jackson v. Thomas, 16 Johns. 293 Jackson v.- Wheat. 18. Johns. 40. 5 Day, 181. Jackson, ex dem, v. Ellis, 13 Johns. 118-40-513. As to the defendants’. Want of notice. DayV. Dun-ham, 2 Johns. Chan. 182. Billinglon v. Welsh, 5 Bin. 129¡ Jackson - v. Henry, 10 Johns. 185. Hibernia Turnpike Co. v. Henderson, 8 Serg. Sf Rawle, 2191 whom the court declined to hear.