[Phillips v. Gregg.] 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 and treated by the parties for a time as a valid marriage, during which time Mary was born, the mere fact that after a separation had 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 true 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 1769, John Ormsby, Sen., entered three applications for adjoining tracts of [Phillips v. Gregg.] 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 purchasemoney 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 having 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 heirs 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. [Phillips v. Gregg.] 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-common enters and takes the whole rents and profits for thirty or forty years, or even for twenty-one years, a jury may presunie 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 1806, 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 [Phillips v. Gregg.] 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 by 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 1820, 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. [Phillips v. Gregg.] 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 1820, 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 woman 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 mother. By this letter, and that of March 1828, it evidently appears that he was much perplexed what 'to do on the subject. He expresses no intention of wronging his niece, or denying her claims, provided he is satisfied of her legitimacy; 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 examin'ing into the subject, O. Ormsby acknowledged his niece's claims, and hoped she could be induced to take some definite 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 |