The opinion of the court was delivered by
Gibson, C. J.For civil purposes, reputation and cohabitation are sufficient evidence of marriage; and there is evidently enough in the case to show that the plaintiff’s father and mother were married in fact. But there is said to be the same evidence of a precedent marriage of the mother with another man, who was alive at her second marriage; and hence a supposed dilemma. But the proof being equal, the presumption is in favour of innocence; and so far is this carried in the case of conflicting presumptions, that the one in favour of innocence shall prevail. Starkie on Ev. pt. IV. 1248-9. It must be admitted that this principle is not immediately applicable here, inasmuch as there is no conflicting evidence, and the facts supposed to result, are consistent with each other; but it establishes that the same proof that is sufficent to raise a presumption of innocence, may be inadequate to a presumption of guilt. To say the least, then, the jury were not bound to draw the same conclusion of marriage from the same evidence, without regard to consequences; and to have instructed them that they were, would have been error. On the contrary, they were bound to make every intendment in favour of the plaintiff’s legitimacy, which was not necessarily excluded by the proof. But was the evidence in fact, exactly balanced 1 The presumption of marriage from cohabitation may be rebutted by evidence of separation, without an apparent rupture. Jackson v. Claw, 18 Johns. 346. And here there was a separation, without an apparent cause, for eleven years, which independent of any rule of presumption, would be sufficient to give the evidence of legitimacy a decisive preponderance.
*453The facts connected with the remaining point arc, that the plaintiff’s father made an actual settlement on the land in 1798, by building two cabins on it in succession, clearing and cultivating U portion of it, designating his boundaries, and residing on it till his death in 1800; after which, his widow sold the improvement to íí person under whom the defendants claim, The lessee of Mobely v. Oaker, 3 Yeates, 200, and the lessee of Clark v. Heckethorn, id. 269, are inapplicable to the case of an improvement so recent as the present, At an early day this species of title was of sp little ac- ■ count, that it was sold as a chattel in a course of administration. 2 Yeates, 378; but in 1800, it had gradually acquired the consistence of an indefeasible estate; and although it might still be lost by abandonment, the evidence of an intention to produce that effect, was required to be clear and satisfactory. Here there is no pretence of abandonment, as b.oth parties claim by the improvement begun by Zinn, the title to which was clearly in his daughter when it was sold by her mother; so that the fifth section of the limitation act of 1785, (which has been held to operate only on equitable titles then existing,) being out of the way, the question simply is, whether she is barred by her mother’s alienation; and it is clear that, unless there is something peculiar in the case, she is not. No equity arises from the supposed application of the price to her maintenance. A sale for that object could be ordered only by the Orphans’ Court, with which the law has deposited the requisite discretion. Neither could a supposed necessity to interpose for the preservation of the inheritance from a total loss, by abandonment of the improvement, give an additional sanction to the act of the mother. I will not undertake to say that there may not, even at this day, be an abandonment by an infant. Whether any thing but an intentional relinquishment of the title, of which the circumstances are but evidence, can be effectual, and whether an infant be not incapable of such relinquishment, by reason of want of discretion, are points that may hereafter be worthy of consideration. But, whatever be the motive, it is clear that a parent has no power to divest the infant’s estate; and we discover nothing in the case to induce us to disturb the judgment.
Judgment affirmed.