Pratt v. Pierce , 36 Me. 448 ( 1853 )

Shepley, C. J. —

To establish the title of the demandant, it is necessary that he should prove, that Hezekiah Hartley Wright was the legitimate child of Hezekiah Wright. Positive proof of a legal marriage is required upon the trial of persons indicted for polygamy and adultery, and in actions for criminal conversation. In other cases, proof of facts, from •which a legal marriage may be reasonably inferred, will be sufficient. It cannot be inferred from proof of facts, which show, that there could not have been a legal marriage. Such were the facts in the case of Ligonia v. Buxton, 2 Greenl. 102.

In this case, the facts proved, do not show, that there could not have been a legal marriage. If either of the parties resided in Hallowed, or if there was no ordained miuisler then residing in Monmouth, the marriage by the ordained minister residing in Hallowed was a legal one, although the ceremony was performed in Monmouth. The presumption of law, from the facts proved, is, that the ceremony of marriage was legally performed there being no proof, that it was not. Damon’s case, 6 Greenl. 148. The presumption being that the minister did not violate the law, the marriage must be regarded as legal.

It is contended, that the demandant acquired no title by the deed made by Charlotte Wright to him, on Feb. 22, 1850, because he purchased the title knowing that person was dis-seized, and that another .person was in possession, claiming title. By the common law, no title, could have been thus acquired. In this respect, the common law has been abrogated in this State, by the provisions of the statute, c. 91, § 1, which declare, that ad the title or interest of the grantor shall pass by a deed of conveyance, if he had a right of entry, whether he was seized or not, at the time of the conveyance.

But it is said, that the statute should receive a construction, that would permit such conveyances to be valid, when made under circumstances, that would not show, that the grantee had been gnilty of maintenance, aud decide them to be invalid, when made under circumstances, that would show it. The statute makes no such distinction or qualification. It appears to have been the intention, so to alter the law, as to permit the titles of persons disseized, aud having a right of entry, to be as openly aud freely sold and purchased, as they might have been, had there been no disseizin.

When a person had been wrongfully deprived of a part of his title by disseizin, the Legislature may have considered it hard, if not unjust, to make him submit to a less of the remainder or encounter the risk, loss and trouble of litigation.

Charlotte Wright had therefore a right of entry, when she conveyed it to the demandant, and her title passed to him.

As the counsel for the tenant admit, that the title derived from the collector of taxes was presented only to prove, that those claiming under it had been iti possession under a claim of title, it will be sufficient to observe, that there is no proof, that the land was advertized in the manner prescribed by the statute then in force.

It is not insisted, that the deposition of the collector was not properly excluded. Tenant defaulted.

Tenney, Rice and Hathaway, J. J., concurred.