The opinion of the court was delivered by
Rogers, J.
The plaintiffs claim title under Mary Swazey, the daughter of John Ormsby, Jun., and Grace, daughter of John Ormsby, Sen., and the defendants under the heirs of Oliver Ormsby son of John Ormsby, Sen., who died seised of the premises. In deducing title, it becomes material for the plaintiffs to prove that Mary Swazey was the legitimate daughter of John Ormsby, Jun., and as such entitled to one-third of her grandfather’s estate. On this arises one of the principal questions in the cause.
Mary Swazey was the daughter of John Ormsby, Jun., by Lydia, who was the daughter of Nathan Swazey. It has been proved by testimony which leayes the matter clear of any doubt, that John Ormsby, Jun,, and Lydia Swazey, were married by a justice of the peace, and that Mary Swazey was the issue of the marriage. The marriage was celebrated in due form, within the limits of the present state of Mississippi, which at that time de facto was under the colonial government of Spain, although it has been since ascertained by commissioners appointed by this country and Spain, that the spot where the marriage took place was within the territory belonging to. the ,United States.
These facts are proved by the father and mother of Mary Swazey, and by other ancient witnesses, who have been examined by the plaintiffs and defendant, and by the repeated acknowledg[168]*168ment of John Ormsby, Jun., in his lifetime. Notwithstanding (his mass of testimony, the defendants contend there is no legal proof of the legitimacy of Mary Swazey,and that consequently the plaintiffs are not entitled to recover. The general principle is, that between persons, sui juris, marriage is to be decided by the laws of the place where it is celebrated. If valid there it is valid every where. If invalid there it is equally invalid everywhere. To this rule, as to almost every general rule, there are well recognised exceptions, and among others may be classed those marriages celebrated in foreign countries by citizens entitling themselves, under certain circumstances, to the benefit of the laws of their own country. That a foreign marriage, valid according to the laws of the place where celebrated, is good everywhere also, seems to be a rule of universal application, I mean-as recognized in England and in this country. But our courts have not established, e con-verso, that marriages of citizens not good according to the place where celebrated, are universally, and under all possible circumstances, to be disregarded. The best course unquestionably is, to be married according to the laws of the country where the marriage takes place, for then no question can arise. But if this cannot be done on account of legal or religious difficulties, the law does not say, “that citizens shall not marry abroad according to the forms and ceremonies recognized as valid and binding in their own country. The common law, under which we live, considers marriage in no other light than a civil contract; such a marriage as has been celebrated between these parties would be clearly good. Now supposing that the colonial laws of Spain viewed marriage as a sacrament to be celebrated only according to the forms prescribed by the catholic church, (of which, by the bye we have not a shadow of evidence,) still it may admit of a very serious doubt, whether, under the very peculiar circumstances of this case, the marriage would be held bad by the courts of this country, so as to bastardize the issue. The marriage took place between persons who were subjects of Spain defacto only, in a country, the boundaries of which were unsettled, and in dispute between Spain and the United States, both parties claiming it, and which was subsequently found, on accurate survey, to be in truth within our limits. But this is a question, which we are not bound to decide, as we are with the defendant in error on other grounds. The only point is, the manner the colonial laws of Spain, as to the mode of celebrating marriages, are required to be proved. It is an established principle that foreign laws cannot be judicially taken notice of; the well settled doctrine being, that no court takes judicial notice of the laws of a foreign country; but they must be proved as facts. In what manner, then, are they to be proved? and this, it is obvious, will vary according to circumstances.' The general principle is, that the best testimony or proof shall be required that the nature of the thing admits of; or in other words, that no testimony shall [169]*169be received which presupposes better testimony attainable by the party who offers it. And this rule applies as well to the proof of foreign laws as other facts. In this, as in all other cases, no testimony is required which can be shown to be unattainable. Church v. Hulbert, 2 Cranch 237. Generally speaking, authenticated copies of written laws, oi; other public instruments of foreign governments, must be produced. They are required to be verified by the sanction of an oath, unless they are verified by some other high authority, which the law respects not less than the oath of an individual. 2 Cranch 238. The usual modes of authenticating, are by an exemplification of a copy under the great seal of the state, or by a copy proved to be a true copy, or by the certificate of an officer authorised by law, which certificate must itself be authenticated. Foreign unwritten laws, customs and usages, may be proved, and must ordinarily be proved by parol evidence. And the usual course is to make such proof by the testimony of competent witnesses instructed in the law, under oath. But although these- are the usual modes of authentication, yet they may be relaxed or changed as necessity, either physical or moral, may require, where there is reason to believe they are unattainable, and where a rigid adherence to them may probably produce extreme inconvenience or manifest injustice. In short, the peculiar circumstances of the case must enter largely into the consideration of the question, of the competency of the evidence. In the firs' p'-pe it is a matter of no inconsiderable weight, that the adop r m the strict rule, in'its application to the early settlers on the Mississippi, may jeopard the rights, and bastardize the issue of many of our citizens. It- must be recollected that this marriage took place fifty years ago, at a period when the boundary line between the United States and Spain was in dispute and unsettled; and that the place where it was celebrated has been since ascertained to have been within our limits. It must not be forgotten, that the territory was in a state of transition from France to Spain, from Spain to France, and from France to the United States, for most of the time under a colonial or territorial government, nor is it certainly known whether or where the edicts of the governor or superintendents of those provinces are preserved, whether they are in the archives of France or of Spain, or whether they remain among the local records of the present state of Louisiana or of the state of Mississippi. It may be, and most probably is, impossible, to procure an authenticated copy of the edict or law by which marriage may have been regulated at that time within the colonial government of the Spanish monarchy. Nor will such proof be required; but it is contended that it might have been proved by the oath of witnesses instructed in the law; but whether the testimony of counsel, •at the present day, as to the temporary edicts or fleeting customs of a colonial government which was ever in a state of fluctuation, and which has long since passed away, could be obtained; or if ob[170]
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The opinion of the court was delivered by
Rogers, J.
The plaintiffs claim title under Mary Swazey, the daughter of John Ormsby, Jun., and Grace, daughter of John Ormsby, Sen., and the defendants under the heirs of Oliver Ormsby son of John Ormsby, Sen., who died seised of the premises. In deducing title, it becomes material for the plaintiffs to prove that Mary Swazey was the legitimate daughter of John Ormsby, Jun., and as such entitled to one-third of her grandfather’s estate. On this arises one of the principal questions in the cause.
Mary Swazey was the daughter of John Ormsby, Jun., by Lydia, who was the daughter of Nathan Swazey. It has been proved by testimony which leayes the matter clear of any doubt, that John Ormsby, Jun,, and Lydia Swazey, were married by a justice of the peace, and that Mary Swazey was the issue of the marriage. The marriage was celebrated in due form, within the limits of the present state of Mississippi, which at that time de facto was under the colonial government of Spain, although it has been since ascertained by commissioners appointed by this country and Spain, that the spot where the marriage took place was within the territory belonging to. the ,United States.
These facts are proved by the father and mother of Mary Swazey, and by other ancient witnesses, who have been examined by the plaintiffs and defendant, and by the repeated acknowledg[168]*168ment of John Ormsby, Jun., in his lifetime. Notwithstanding (his mass of testimony, the defendants contend there is no legal proof of the legitimacy of Mary Swazey,and that consequently the plaintiffs are not entitled to recover. The general principle is, that between persons, sui juris, marriage is to be decided by the laws of the place where it is celebrated. If valid there it is valid every where. If invalid there it is equally invalid everywhere. To this rule, as to almost every general rule, there are well recognised exceptions, and among others may be classed those marriages celebrated in foreign countries by citizens entitling themselves, under certain circumstances, to the benefit of the laws of their own country. That a foreign marriage, valid according to the laws of the place where celebrated, is good everywhere also, seems to be a rule of universal application, I mean-as recognized in England and in this country. But our courts have not established, e con-verso, that marriages of citizens not good according to the place where celebrated, are universally, and under all possible circumstances, to be disregarded. The best course unquestionably is, to be married according to the laws of the country where the marriage takes place, for then no question can arise. But if this cannot be done on account of legal or religious difficulties, the law does not say, “that citizens shall not marry abroad according to the forms and ceremonies recognized as valid and binding in their own country. The common law, under which we live, considers marriage in no other light than a civil contract; such a marriage as has been celebrated between these parties would be clearly good. Now supposing that the colonial laws of Spain viewed marriage as a sacrament to be celebrated only according to the forms prescribed by the catholic church, (of which, by the bye we have not a shadow of evidence,) still it may admit of a very serious doubt, whether, under the very peculiar circumstances of this case, the marriage would be held bad by the courts of this country, so as to bastardize the issue. The marriage took place between persons who were subjects of Spain defacto only, in a country, the boundaries of which were unsettled, and in dispute between Spain and the United States, both parties claiming it, and which was subsequently found, on accurate survey, to be in truth within our limits. But this is a question, which we are not bound to decide, as we are with the defendant in error on other grounds. The only point is, the manner the colonial laws of Spain, as to the mode of celebrating marriages, are required to be proved. It is an established principle that foreign laws cannot be judicially taken notice of; the well settled doctrine being, that no court takes judicial notice of the laws of a foreign country; but they must be proved as facts. In what manner, then, are they to be proved? and this, it is obvious, will vary according to circumstances.' The general principle is, that the best testimony or proof shall be required that the nature of the thing admits of; or in other words, that no testimony shall [169]*169be received which presupposes better testimony attainable by the party who offers it. And this rule applies as well to the proof of foreign laws as other facts. In this, as in all other cases, no testimony is required which can be shown to be unattainable. Church v. Hulbert, 2 Cranch 237. Generally speaking, authenticated copies of written laws, oi; other public instruments of foreign governments, must be produced. They are required to be verified by the sanction of an oath, unless they are verified by some other high authority, which the law respects not less than the oath of an individual. 2 Cranch 238. The usual modes of authenticating, are by an exemplification of a copy under the great seal of the state, or by a copy proved to be a true copy, or by the certificate of an officer authorised by law, which certificate must itself be authenticated. Foreign unwritten laws, customs and usages, may be proved, and must ordinarily be proved by parol evidence. And the usual course is to make such proof by the testimony of competent witnesses instructed in the law, under oath. But although these- are the usual modes of authentication, yet they may be relaxed or changed as necessity, either physical or moral, may require, where there is reason to believe they are unattainable, and where a rigid adherence to them may probably produce extreme inconvenience or manifest injustice. In short, the peculiar circumstances of the case must enter largely into the consideration of the question, of the competency of the evidence. In the firs' p'-pe it is a matter of no inconsiderable weight, that the adop r m the strict rule, in'its application to the early settlers on the Mississippi, may jeopard the rights, and bastardize the issue of many of our citizens. It- must be recollected that this marriage took place fifty years ago, at a period when the boundary line between the United States and Spain was in dispute and unsettled; and that the place where it was celebrated has been since ascertained to have been within our limits. It must not be forgotten, that the territory was in a state of transition from France to Spain, from Spain to France, and from France to the United States, for most of the time under a colonial or territorial government, nor is it certainly known whether or where the edicts of the governor or superintendents of those provinces are preserved, whether they are in the archives of France or of Spain, or whether they remain among the local records of the present state of Louisiana or of the state of Mississippi. It may be, and most probably is, impossible, to procure an authenticated copy of the edict or law by which marriage may have been regulated at that time within the colonial government of the Spanish monarchy. Nor will such proof be required; but it is contended that it might have been proved by the oath of witnesses instructed in the law; but whether the testimony of counsel, •at the present day, as to the temporary edicts or fleeting customs of a colonial government which was ever in a state of fluctuation, and which has long since passed away, could be obtained; or if ob[170]*170tained, would be more satisfactory than the testimony which has been procured, is not very clear. At this distance of time, better testimony of the facts of the marriage of obscure individuals cannot be expected. It is sufficient to satisfy the scruples of the most fastidious. Before the defendants can be permitted to allege that such proof should not be laid before the jury, it was incumbent on them, under the peculiar circumstances of the case, to show that there was better in existence attainable by the plaintiff:— that a justice of the peace was not authorized to celebrate marriages between persons who professed the protestant faith. It is very probable that a regulation, similar to one of which the witness speaks, was made by the local authorities. For in the documents collected by order of congress, we are informed, that the superintendant of the province of Louisiana was authorized to permit intermarriages between new settlers, and Spaniards of both sexes, witli a view to the more easy incorporation with the natives. In that instance the laws of marriage were relaxed, and it is very likely that the conscientious scruples of protestant settlers were respected by the colonial government. The witnesses distinctly prove 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 or superintendant, to whom the power was intrusted at. the request of protestant emigrants, and that such marriages so celebrated were held valid by the political power of the state. Although it might be possible to give higher evidence than this of the marriage, yet it would be unreasonable to Vequire it, as to a marriage celebrated between citizens of the country fifty years ago, in the settlements on the Mississippi. The only plausible exception which has been taken to the evidence is, that the testimony does not proceed from witnesses learned in law. But this objection is entitled to less weight as it respects the ceremony or validity of marriages, in which every citizen is so much interested, and with which in general they are so well acquainted. In Roman catholic countries, and in some protestant countries, marriage is treated as a sacrament, but in this as a civil contract. It is very likely it is held to be a sacrament in the colonial governments of Spain, although it is bymo means improbable, that as the vvilnesses state, in the then Spanish province of Louisiana there was a relaxation in the laws favourable to the conscientious scruples of perr sons of different religious creeds.
The plaintiff in error also alleges, that John Ormsby, Jun. was advanced by his father in his lifetime to the full amount of his share of his father’s estate.
The 1st of April 1769, 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, as whose heirs the defendants claim title. It is a general rule in equity, that when a man buys land in the name of another, and pays the [171]*171consideration-money, the land will generally be held by the grantee in trust for the person who so paid the purchase-money. But this doctrine must be taken with some exceptions, which are not inconsistent with the general principle. For when a parent purchases in the name of the son, the purchase will be deemed prima facie an advancement, so as to rebut the presumption of a resulting trust for the parents. The moral obligation of a parent to provide for his children, is the foundation of the exception; or rather, of the rebutter of the presumption; since it is not only natural, but reasonable, to presume, that a parent by purchasing in the name of a child, means a benefit to the latter, in discharge of the moral obligation, and also as a token of parental affection. In addition to the legal intendment, that the application was designed as gifts to his two sons, it may also be inferred, that such was his intention, from his subsequent conduct. He suffered his sons to treat the land as their own, took out no patents himself, but left them to complete their titles for their respective tenants, by procuring patents when they arrived at age. Oliver, when he came of age, paid the purchase-money for his tract, and obtained a patent in his own name, and for his own use. And John, when he came of age, being indebted to his father, and to others, conveyed his tract to his mother, (by whom it was after-wards sold,) and the purchase-money applied to the payment of his debts. This was after John had left the country. We are therefore fully warranted in saying, that this was a gift by the father to the son, of a tract of land, at the time of the application. Every fact in the cause leads us to the same conclusions. The conveyance from John to his mother was for a nominal consideration, and that it was with the assent and approbation of the father, is an inference which fairly results from all the circumstances attending the transaction, and with a full understanding that it should be sold, and the proceeds applied to the payment of the debts of John. For it appears, thdt the property conveyed to the mother was sold, and the proceeds passed to the credit of John, viz: the sum of 600 pounds, received from Culbertson, the purchaser. It cannot be viewed in any other light than the payment of a debt, out of the proceeds of property, understood and acknowledged to be the property of John. The father explains the transaction by an “N. B.,” to be a memorandum of the different payments on his son John’s account. There is nothing which indicates that he had made or intended a gift to his son of the sum of 600 pounds. It is an account stated, as debtor and creditor, between himself and son, in which he charges him with payments on his account, and credits him with money received in his character of trustee, oras the recipient of the money of the wife, avho was the trustee. When we recollect the habits of John, his indebtedness to his father and others, connected with the subsequent conduct of the father in crediting the amount received, we cannot bring ourselves to believe that the conveyance was intended as a' gift, to the mother, of the premises. We are constrained to think it [172]*172was designed for the honest purpose to which it was afterwards applied. It may have been that, at the time of the conveyance, John was not indebted to his father in the whole amount of the account, but there were debts then owing, and for which the father became responsible, and afterwards paid. If, then, this was intended as a gift by the father to his sons, it was an advancement to them, at the time of the application, to an amount equal to the sum, viz: seven shillings and six pence, actually paid by the father. The subsequent rise in the value of the property, caused by the improved condition of the country, cannot be taken into the account. The rule is to charge the child with the value of the thing at the time of the gift, and no better rule can be established to ascertain that value, than the amount which the parent has actually paid on account of the purchase. If a parent purchase land in the name of the son, and pay only part of the purchase-money, it will not be pretended that the son is bound to bring into hotch-pot. more than the amount paid, whatever artificial or real value the land may have obtained at the time of the death of the parent.
As to the statute of limitations. In the charge of the court to the jury there is no error, nor in truth is there any error assigned; although the counsel, in the argument, took exception to part of the charge. In those exceptions he has totally failed. The law on this point is so well settled, that it would be a waste of time to examine particularly all the positions laid down by the court.
Judgment affirmed.