¶1The opinion of the court was delivered, by
¶2There can be no doubt that the adverse possession was intended to be by the mother and children, as widow and heirs of Hammond. Then why shall the supposed fraud of Hammond upon the mother have the effect of making this adverse possession enure entirely to her benefit ? To punish him for his fraud ? The punishment does not reach him; and his children, not claiming through him, must not be required to bear it for him. They have committed no fraud upon their mother that entitles her to oust them of this claim. Certainly they are no more to blame for the results of the illegal marriage than she is for the fact. If she can claim the land at all, it is by reason of the adverse possession kept up for them and her, which gives them a title in common; and she cannot change this result by showing fraud in one with whom neither of them ever had any legal connection, and in hostility to whose title they are all claiming. It is not the fraud, but the adverse possession, that gives the title ; and the question is, who had this possession ? Where a man dies, leaving an illegitimate family of children, and their mother, and they continue in the possession of his land for twenty-one years claiming it as their own as his heirs and widow, they obtain a title as such: and so the court ought to have instructed the jury, and ought not to have allowed the mother, after that, to change the nature of her adverse claim; and to oust her children because they are bastards, and because their father had cheated her.
¶3Judgment reversed and a new trial awarded.