Counter declarations, except such as are made under circumstances of peculiar seriousness and solemnity(a), will not suffice to overturn it(b); much less circumstances in the conduct of the parties, which excite merely a suspicion that no marriage was celebrated (c). Even the preamble to an Act of Parliament, reciting that the husband was then unmarried, has been held [*]incompetent to destroy the presumption(d). And it seems not improbable, that the presumption of marriage arising out of the circumstances

(b) Hervey v. Hervey, supra; Hilliard v. Phaley, 8 Mod. 180.

(a) As declarations in an an- a 3, a fact which was urged as swer to a bill in Chancery, or a throwing additional discredit on formal declaration in writing made the marriage. The evidence of purposely to prevent disputes in the witnesses, however, called to the family. Goodright v. Moss, corroborate the asserted illegitimaCowp. 591. cy of the child (the father of the defendant) tended on the whole to prove, according to common reputation, that a marriage had actually been had. Upon this Mr. Baron Garrow observed to the jury, that the plaintiff stood on the strength of his own case, and was bound to satisfy them that no marriage had taken place. The jury after hearing the counsel for the defendant, but without requiring any witnesses to be heard on his part, expressed their opinion that there had been a marriage between the parties from whom the defendant derived title, and found a verdict accordingly.

(c) Goodtitle d. Lloyd v. Lloyd, Shrewsbury Sum. Ass. 1822, before Garrow, B. In this case, it appeared that the grandfather and grandmother of the defendant cohabited very shortly after the death of the former husband of the grandmother, even while in her weeds; -that though the grandfather had represented himself as having been married to her at various places, no register of the marriage could in any of these places be found; and that the grandfather, after noticing her in his will as his affectionate wife, whom he had married in 1752, changed the figure 2 into

(d) May v. May, Bull. N. P. 112.

cused, an actual marriage with the mother must be proved by positive

above enumerated would not be considered completely answered, although proof should be adduced of a marriage having taken place which was clearly invalid; as such proof does not necessarily exclude the supposition, that at a subsequent time a legal marriage was solemnized(a).

Whether a purchaser would in any case be compelled to accept a title, the validity of which depends on the disputed fact of a marriage between parties now dead, where there is only presumptive evidence as to such fact, is a point yet undetermined. But it is conceived that the courts would not in all cases, or even generally, compel a purchaser to accept a title so circumstanced; for they will not oblige a purchaser to take a title which depends on a matter of fact, that either [*]does not admit of satisfactory proof, or is not properly proved(b); and although a verdict may have been obtained in favour of the marriage, yet if the facts on which that verdict was founded are not clear and strong, since it can afford but little assurance against future controversy, the reality of the marriage must

(a) Haydon v. Gould, 1 Salk. 119; Wilkinson v. Payne, 4 T. Rep. 468; Standen v. Standen, ib. cited, and in Peake's N. P. Cases,

32.

(b) Smith v. Death, 5 Madd. 371. The rule upon which courts of equity proceed in suits for the specific performance of agreements to purchase, where a fact essential to the title rests only in presumption, seems to be this: "If the case be such, that sitting before a

jury, it would be the duty of a judge to give a clear direction in favour of the fact, the fact is then to be considered as without reasonable doubt; but if it would be the duty of a judge to leave it to the jury to pronounce upon the effect of the evidence, then the fact is to be considered as too doubtful to conclude a purchaser." Per Sir J. Leach, V. C., in Emery v. Grocock, 6 Madd. 57.

still be considered as insufficiently shown. On the other hand, if the circumstances which oppose the presumption be slight aud inconclusive, the objection that the fact to be presumed is doubtful, especially should a considerable lapse of time have intervened, will not be allowed to prevail: the Courts are most reluctant to give countenance to objections of this kind, and thereby to create disputes in families, without good and sufficient reason. Such was the opinion entertained in a late case by Lord Eldon. A title was objected to by a purchaser on the ground of the illegitimacy of J. Robinson, through whom the vendors claimed. In support of the objection it was shown, first, that the register of his father and mother's marriage could not be found; secondly, that notwithstanding the father, at the time of the asserted marriage, was owner of a power which enabled him to limit a jointure to his wife, he did not make a settlement on her until [*]after J. Robinson's birth; thirdly, that in the deed executing the power of making a jointure on his wife, the father covenanted that he was seised in fee, whereas, if J. Robinson were legitimate, he was only tenant for life, remainder to his son in tail; and lastly, that the father in his will described his son in an unusual and pointed manner, as an infant of a certain age, and professed to devise the estate to him, as though the testator were the absolute owner. In answer to these circumstances, besides constant cohab itation and general reputation, it was shown that, in the parish register of births and baptisms, J. Robinson, as also an only daughter, were described as children of M. Robinson and Elizabeth his wife, and that in the register of the mother's burial she was described as widow of the late Colonel Robinson.

On this state of facts, Lord Eldon considered the just inference to be in favour of J. Robinson's legitimacy, and said, that if the question were merely between different branches of the family the legitimacy could not be stated to the jury as a point fairly questionable; and that although the case of a purchaser was very different, yet admitting that principle of distinction, the court ought to hesitate long before it would act upon such grounds to the destruction of legitimacy, the fact not appearing ever before to have been called in question(a)(1).

In those cases in which it is necessary to prove a descent of the estate upon a collateral and remote heir, titles are not unfrequently deficient in proof of the extinction of families nearer in the line of inheritable [*]blood. This deficiency, it is true, may not endanger the immediate enjoyment, as the person claiming to be heir is entitled to hold until another claimant appear with a better title. But on a sale the ill effect of the want of evidence immediately shows itself. A purchaser justly expects to be made certain of a permanently secure possession, and requires, if not positive, at least satisfactory proof of the vendor's title. . So that in the case supposed, if the descent be recent, as it is manifest that such assurance cannot then be given, the title must remain unmarketable. Lapse of time, however, alters the case essentially. If thirty or forty years have intervened since the descent took

(a) Lord Braybrooke v. Inskip, 8 Ves. 417, 422, 431.

(1) Knoxv. Jenks, 7 Mass. 488. Gray v. Gardner, 3 Mass. 399. Coleman v. Anderson, 10 Mass. 105. Perkins v. Fairfield, 11 Mass. 227.

place, an inference arises from that circumstance, which will support the present possessor's title: it will be presumed that his claim as heir is just to repel the presumption other facts in evidence must render it probable, that there is a nearer heir in existence under disabilities which will prevent the time from running against him as a bar(a). The presumption in question will receive confirmation from the circumstance of other sales of land held under the same title having been previously effected, when the objection under notice was at once insisted on and overcome. In most cases, it should therefore seem, that titles thus situated may, without much apprehension, be accepted by purchasers on the ground of time alone(1). And if the difficulty which a person nearer in the line of descent (should there be any such) would experience in enforcing his claim by a possessory action be also taken into the [*]account, this consideration would form a still further, and to a willing purchaser supply a most powerful reason, for being satisfied with the title(2).

(a) Floyer v. Strackley, Nels. See also Roe v. Hasland, 1 Bla. 13; 12 Vin. Abr. 57, pl. 2, S. C. Rep. 404.

(1) Where a tenant at will remained, after the death of the lessor, in the exclusive and uninterrupted possession of the lands demised, claiming title for a period of fifty seven years, it was held that a restoration of the lands to the heirs of the lessor, and then an ouster of them immediately after the death of the lessor, dissolving the original relation might be presumed, and that by virtue of such possession, there arose a presumption of a perfect title in the tenant. Camp v. Camp,

5 Con. R. 291.

(2) Van Dyk v. Van Beuren et al. 1 Caine, 84. Higgenbotham v. Burnet, 5 John. Ch. 184.