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    Winslow Bierce and others vs. Enoch Pierce and others.
    For the purpose of supporting a continued possession of over forty years, under a defectively executed conveyance by a cestui que trust, who, during the whole period, had made no claim thereto, and was under no disability, the Court will presume a good title to the equitable estate in the occupant, and will enjoin the trustee holding the outstanding naked legal title from disturbing such possession.
    This is a Bill in Chancery from the County of Delaware.
    The leading and material facts in the case are: That about 1800, Enoch Pierce, senior, the father of the defendants, then residing in Berkshire, in Massachusetts, received a number of United States military land warrants in trust for the holders, for the purpose of locating the same, to the amount of 4,000 acres. When the land was located and patented, the elder Pierce was to convey to each warrant-holder his proportion; and for these services he was to receive one dollar and fifty cents for each hundred acres. He located these warrants on the 2d section of the 4th township, in the 17th range of the United States military lands in Delaware county, containing four thousand acres. ■ This .location-was accordingly ■ patented to Enoch Pierce; the father, in his lifetime, who' died in Í803 or 1804.
    In Bank.
    Dec. Term, 1846
    Mosés Byxbe, .from whom the complainants derive.their'title, commenced purchasing the rights of the; warrant-holders; before Piércé’s.'death', and,'in 1805, purchased• from the. widow-and' the administrator of Pierce, the elder, deceased, and his ten children,'álí their right, title and interest.in; the section.' These conveyances, were executed in Massachusetts, where the Pierce .family then- resided; The consideration paid by Byxbe to-,the widow, administrator and heirs, '-.was one thousand dollars. Three of the children were then minors,-who are now, in consequence thereof, claiming' three-tenths of the land so entered' and patented.' These three children áre the defendants.
    It. is claimed in the bill, and thje -depositions., of. Root and .others show, this to be the fact,.-thai'the elder Pierce had no interest, in the -land, except .his locating fee — $1.50 -per "100 acres; that he'merely’held the land and patent in trust For: the warrant-holders; and that Byxbe; soon after'the location of the land, was engaged'in purchasing up the- rights of the warrant- ■ holders. - It appears, from the papers on: file, he purchased up all the. warrants; at or about that time, except 6.00 acres out of' 4,000, and it does not appear but that he might have purchased up the 600 also.. Who,has actually the right to the warrants, covering these 600'acres, does not appear.
    ' The complainants, as purchasers- from Byxbe, have been in 'possession ever- since 1804-5, claiming title, and in the undisturbed possession upwards of thirty years.;' The -youngest of the defendants arrived at majority in the year 1812, and never set up'-any claim, to the land until .1837 — - twenty-five . years after the youngest heir arrived' of age, and thirty-three years after the complainants.have been in the peaceable -pos-. session. The defendant's have recently brought' an action of ejectment to recover thei land. The bill seeks to enjoin them from-proceeding at. law, and to quiet the .title.

      T. W. Powell, for Complainants. .-
    - It is-.claimed' by -the- complainants, that .after such a lapse of .time, during, all which they have, been in • possession qf the premises,.the law: will .presume they hold by legal conveyances.' In relation to presumption, the following maxims ,have '■been established-; •. ...... : ‘
    , FirstPresumption" is. only made .in. favor of-him who is m posséssipn.' 11 Ohio'Rep. 477..., . '• . ■ • .
    Second: That whatever-was done,, was right.'
    ' Third: That what should be done, was done.
    Fourth: That, after a lapse of time; courts-will hot permit the manner in which ,a thing, was done to be. called in question.
    ' Fifth: That it applies to intermediate parties,.whether.privies or not. See 1 Fónb. Eq. 258; 1 Phil, Ev. 124',. noté'a,■ old edition ; 1 'Caine’s Rep.,89, note a; 3 Stark. Ev. 1220,; 122.7;. Matthews’. Pres. Ev.' 5, 6 and 221. ' In. 1 Pow. Mori 398'; ('Hillary v. Waller.,, 12- Yes. Rep: 239,) Sir W. Grant says: ‘‘..There-was. much occasion for,presuming conveyances of legal ‘ estates when-, from the length of'time,-., it-hád- become impossi- ‘ ble to discern in whom the legal title was- invested ■ 'Ibid. 401, note 2;'Mátthéws’ Presumptive Evidence, 221.' “.Rut,. ‘ although time, aloné-be not sufficient, in ■ cases of. this dqscrip‘.tion to afford .an inference that the legal estate has been con- ‘ véyed,' yet it ■ does- not seem necessary, in order to establish ‘ such supposition, that diréct testimony of-the fact should, be ‘‘ adduced. The courts' are' satisfied with reasonable probability, ‘.ánd .will'receive circumstantial evidence as''equally .conclusive •‘ in ibis- respect with positive. ,- Thus, the long and-frequent ex- ‘ ercise of súch.acts of ownership, by the party beneficially en- ‘ titled, as make it probable that the legal interest 'Was vested.' -‘.in him, will enable the Court to entértain-the presumption.” See, also, 3 Stark. Ev. 1227.;' See. an'instructive nóte, I Phil. Év. 124, note a; also, in 1 Caines’'Rep. 89, 2d ed. ,
    ' Another principle which comes in aid of raising a .presumption is, the rule of law by which all things done are presumed to be legally done, unless the contrary appears, (see note to 1 Caines’ Rep. 89,) omnia rite esse acta, (3 Stark. Ev. 1249) ; and, also, that, after a lapse of time, courts will not inquire very strictly for the evidence of the means by which a right was acquired, but will presume those acts to have been done which are consistent with. the possession or claim all along set up, the length of time depending upon the character of the acts to be presumed, and the situation of the - parties. If it is a deed or legal conveyance, a longer period; if an assignment of an equity, or a chose in action, or payment of money, a shorter period will suffice, and the period is shorter in proportion to the liability of losing the evidence or the solemnity upon which the act depends. Presumption thus raised .will require a shorter period, in cases where the evidence of the existence of the fact to be presumed is more liable to be lost or destroyed. This presumption, thus based upon circumstances and lapse of time, is applicable to all human affairs, and all. claims to property, whether real or personal, corporeal or incorporeal.
    The following authorities conclusively establish the position, that this presumption may be raised without regard to the statute of limitations, and in cases of corporeal property: Clark v. Furnace, 4 Pick. Rep. 245; Jackson v. McCall, 10 Johns. Rep. 380; Moore v. Jackson, 4 Wend. Rep. 63, reversing the case 6 Cow. Rep. 706 : in which the Court says — “A re- ‘ lease to the cestui que trust would be presumed after such a ‘ lapse of time,” 32 years; Jackson v. Murray, 7 Johns. Rep. 5; Vandyck v. Van Burén, 1 Caines’ Rep. 84; England v. Slade, 4 Term Rep. 683 ; Jackson v. Wolsey, 11 Johns. Rep. 450; Jackson v. Hudson, 3 Johns. Rep. 386; Corwin v. Graham, 1 Ohio Rep. 330.
    These are all cases at law where a title was raised by presumption in relation to land, and no incorporeal right in question. And it will be raised at a longer or shorter period, depending upon circumstances; Phil. Ev.; 1 Caines’ Rep. supra. “ As to time, the jury may be directed to presume a surrender or conveyance in much less time than twenty years;” Per Kenyon, Ch. J., England v. Slade, 4 Term Rep. 683, (18 years;) Jackson v. McCall,-10 Johns. 377 — a reentry presumed in 14 years; J. v. Dernarest, 2 Caines’ Rep. 382; J. v. Stewart, 6 Johns. Rep. 34. Where the heirs had been in the possession of the purchase under a sale by administrator for twenty years, it was presumed the administrator had taken the necessary steps previous to the sale; Gray v. Gardner, 3 Mass. Rep. 399; see, also, Coleman v. Anderson, 10 Mass. Rep. 105. Presumption of an exception made in the previous deed, as to a drain after 16 years, (Bergen v. Bennett, 1 Caines’ C. in Error, 1); so possession of Crown land commenced by encroachment 55 years ago, if continued down within 7 years, a grant will be presumed, unless it appears that, by statute or otherwise, the Crown could not grant; Goodlittle v. Baldwin, 11 East Rep. 488; Clark v. Furnace, 4 Pick. Rep. 245. Twenty years’ possession, connected with other circumstances, was considered sufficient to raise a presumption of a conveyance.
    Where on a perpetual lease reserving rent, none had been demanded for forty-four years, an extinguishment by some act or deed of the party was presumed; Livingstone v. Livingstone, 4 John. Ch. Rep. 294. Non-claimer of a right to cut timber for thirty years, raised a similar presumption; 1 John. Ch. Rep. 362; Cox v. Smith, Ibid, 271; Ham v. Schyler, Ibid. 7. From these cases it will appear that a presumption of the execution of a deed or the extinguishment of a claim, will be raised at all periods, depending on other facts in the case, upon which a probability may rest. In most instances twenty will do. That period will create an easement, presume the payment of a mortgage, bar a right of redemption; and short of thirty years the execution of deeds have frequently been presumed. Now, in this case, it is not at all necessary to raise the presumption of a deed; all that is necessary is to presume an assignment of the residue of the rights of the warrant-holders to Byxbe, or that at the time when he was purchasing up their claims and purchased most of them, he purchased all. For this purpose the most simple act would be sufficient. A verbal contract arid payment of .consideration, or the most informal writirig, would b'e sufficient as between these parties.
    It is suggested by, the opposite counsel, that there, should be a privity between those--who claim the benefit of the presumption and those from .whom the title would bé derived. by such presumptiori. There is nothing in any case that would sustain this position, while there are many cases in' opposition to it. Where a person had been in possession 70 years and. showed an'old lease from the lessor’s ancestor to a third person, the Court, presumed .the intermediate, assignment. 1 Phib.Ev. 124,' (n );,Earl.-r. Barter,' 2 Wm. Black. R. 1228'; 3 Stark., ,Ev. T22P. • - So' in the casé of Moore v.- Jackson, and Erwin, 4\ Wend..Rep. 63’. . That case.was this: The' elder Erwiri'and three, others, purchased a large tract of 'land, for the benefit of twelve'persons,, including themselves, and took an absolute con- - veya'nce to themselves, so that they held 4-12ths. in their own right, and -8'-Í2ths in trust for .the. others.' - The'.elder - Erwin purcháséd 1-12th of the outstanding equities. The plaintiff in ejectment claimed under Erwin',' and claimed -that the original ■ grant covered the land'in' possession of Moore-, the defendant, who claimed the land by a title derived from an entirely different source, so that there was no more privity in that case than in. this.. The questions, in the case are two. ; 1st. Did. the. grant to the elder Erwin cover the land in controversy; and 2d. could' the plaintiffs claim, as, heirs of Erwin, an interest in the 7.-Í2t.hs'which was held in trust, or were they confined to l-12th which Erwin, held in his own right and 1-12th the outstanding equity which he purchased ; 1-12-j-l-l 2=2-12. Erwin purchased in 1790; Moore purchased in 1793, but. when he took possession does not. áppéar. As the case is reported in 6 Cow. Rep. 710,-it.is said— ' '
    ' “ No claim was ever'made to any portion of the land inclutde.d in the gores, by any person in those townships, from 1791 c to the'commencement of the suit in-1816,” being ,25 years..1 Upon the.second point the Court say, (4.‘Wend. Rep. 63,) “ whether any- part of.' the legal estate in those seven-twelfths
      ‘ of the premises conveyed descended to the'heirs of Erwin, it ‘ is not necessary now to inquire. If it did so, a release to the c cestuis ■ que trust would probably be presumed after such a ‘ lapse of time.” >
    Here this prfesumption was made in favor of Moore, where there was no privity between him and cestuis. que trust. Such presumptions are made for the sake of- quieting -possessions of long standing, rights long exercised.
    It is-claimed that a presumption may 'as well be raised in favor of the defendants, that they have extinguished the outstanding claims, as in .fayor of. the complainants. But this would be entirely contrary to the principles upon which presumptions in these cases are raised. These presumptions áre only raisédin favor of those in- possession of the property,.or-who have for a long1 time claimed and exercised a right consistent with the presumption. ;■ .They are raised for thé'sake ot giving'peace to those who-have .for some time exércised á right; when the; evidence of .'such right-may have been lost by time or accident, but never-in favor of those who- claim adversely to such right or posséssi'on: -“'Where the possession is old and has gone according to the right set up, a deed' nécessáry to the title will be presumed.” .1 .Caines’-Rep. 89, nr; anon, 1 Vent, 257'; see also 1 Fonb. "Eq.-; n. g. 330. Lord' Ellenborough said “ that he would presume anything capable -of being presumed, in order- to .support a long enjoyment;”. 1.1' East, 280; .Hoe v. Ireland, 3 Stark Ev.'-1220. No case can be "found where a presumption is. raised in favor '.of a naked title, where- the 'claim- ■ ant has not -been in the enjoyment of sü.ch fight, A surrender,, conveyance, or any other act, may be presumed for fhé purpose of supporting such'.possession,'but néver against it or to destroy ■it, otherwise it would be moré difficult to raise such presumption against third persons, than it would be ■ against persons' whom, it vvas presumed had executed the conveyance..
    • Take-the" case of Earl v, Baxter above recited,'.where the intermediate assignments’from the originál-lessee, were presumed to have been mádé, in a'case brought by thé lessor against a. tenant who had been in possession seventy years. Here there was ho privity, except upon the hypothesis of'the assignment having • been made. So in the case now before the Court, though there is no privity independent, of the presumption ; yet when that presumption is raised, there is the same privity as in the last mentioned case, and .the same that always subsists between the vendor and vendee. , ' .

      S. Finch, for Respondents.
    The doctrine that certain fa.cts being proved, and other facts in harmony with them, and so. connected with them, that, without supposing the existence of the latter, the former could not be reasonably accounted for, may( be inferred or presumed from the facts proved^ is as old as .the common law, and as well founded in reason as .any other doctrine in it, and’ is nothing more or less than the doctrine of presumption; and it may be used either to establish or defeat a right, or claim of right,;’ and it is conceded that different kinds of facts, and facts of different degrees óf potency as evidence, are require^ to constitute the foundations for inferring or presuming the existence or abandonment of different claims.
    One of the most common grounds set up for the presumption of the satisfaction,, abandonment .or release of claims, js the- fact that the claimant has neglected for a long time to assert his claim, though he knew another was in possession and holding adversely the thing claimed by him; and this is reasonable, because a man will naturally claim and enjpy his known.rights, or, at least, will not for a long series of years neglect to .make a claim for what he knows to be his own, unless the expense and trouble of asserting his rights bear too great a ratio to their value. But as reason itself fixes no exact period beyond which a man ought to be presumed to have abandoned, or released, his claim, the Legislature has, both in England and this country, stepped in, and, by positive enactments, called statutes of limitations, fixed ’ various exact • periods when this presumption shall be considered sufficient and conclusive as to different classes of claims; and, as this presumption originally rested on the fact that this lapse of time and adverse possession were known to the claimant who is to be barred, has made exceptions in favor of different classes of persons so circumstanced as probably not to have that knowledge, for instance, infants, insane persons and persons residing out of the county or State where the thing claimed is situated. And though these statutes apply, in terms, only to the assertion of claims in courts of law, yet courts of chancery, and particularly those of our own State, act not merely in analogy but in obedience to these statutes; See Tuttle v. Wilson, 10 Ohio Rep. 26. But as those enactments are positive, the law on the one hand does not permit any one within the statute and not within any of its exceptions, to avoid the operation of the statute by showing that he is not within the principle on which the rule is predicated ; so, on the other, it does not allow any mere laches, that does not amount to a bar by the statute, to be used as evidence against him at all, whether it be set up to defeat his claim or to establish the claims of his opponent; Stark’s Lessee v. Smith, 5 Ohio Rep. 455; 3 Johns. Ch. Rep. 129; 1 Ohio Rep. 330; Angelí on Limitations, 341; 10 Ohio Rep. 104 and 498. And this is true even where it appears that the adverse possession was known to the claimant — much less, then, is it admissible where the law presumes a want of this knowledge, as in case of infancy, insanity or nonresidence.
    In order, if possible, to avoid the confusion and uncertainty in which the doctrine of presumption of extinguishment, grants and conveyances is involved in many of the books, (and to some extent in the gentleman’s argument,) I will attempt a classification of the different cases .in which the courts apply this doctrine, and of the different principles and rules that govern them in its application, &c.
    First: If a claimant who is within the statutory bar comes into either a court of law or equity to assert his claim, whatever it is, the presumption is by statute made conclusive.

      ' Second.: If his claims are easement only in land, or other lying in' grant,' which is not within the provisions of the statute, the common law has fixed upon-twenty .years possession as furnishing a-ground sufficient, -prima facie, to raise the presumption of a grant; but-even ;'in this, case — and a fortiori' in' cases where title to lands comes in 'question — this presump-tion is predicated-on knowledge of that possession. Daniel v. ■ North, 11 East 372, cited in 1 Cainé’s Rép. 90, in which;it - was decided that,- “ even after twenty years enjoyment of lights,' ‘a grant will not be presunaed-against a landlord notin possess:- ‘ iori, unless knowledge of -lights , having been made is brought .‘ home to him.” ; - - - .
    Third: If the'claim be a title;, either at law;or equity', to' land, then'(as the statute applies and furnishes'a positive rule on the subject,) courts-have ño-discretion, and possession is an absolute title, or it is, by itself, nothing.' But when possession is.connected with other facts, of themselves .evidence of. conveyance, and that possession, is known "to fhe claimant, then all these facts-and possession are to be fairly weighed by court or jury like any other casé of circumstantial evidence; and if the-' inference'6f the execution of,a deed, &c., be a reasonable one, ór,.in .other word's, if. the evidence. Is, sufficient-to convince a reasonable mind '.that such deed fias, in-fáct, been made, then .such ipresumptiori.is-to be drawn,-.otherwise not,;''and, in this qase,. a', greater degree of circumstantial evidence is' necessary thari is-required to sustain a grant of easement. .
    '. Fourth:' Thereis another class qfcasps of a somewhat different ñátúré, in which courts,; in -order to prevent fraud and injustice, tesorf to the legal fiction'of'presuming a grant or con-. veyance,. when...'they do not, and' have nó reason to beli.eve, such grant or deed was in.fact ever made. ■ And this doctrine, though , in principle wholly-distinct from that of presumption. proper, is, in the books, so mingled and involved with this doctrine, that if is very, difficult to separate and distinguish between the cases, so as to say on which of these doctrines each case turned ;■ and in some cases. both doctrines are applicable, and both were actually applied, under the name of presumption ■only. And hence it is that, in some of the eases, it is said that the facts are to be left to a jury, and they are to determine whether the evidence is sufficient to convince them that such deed has in fact been made or not; and in some of the cases, and in the elementary books, it is sometimes said that the Court presumes the grant or conveyance, to support the possession, without believing, or having reason to believe, that any such conveyance has in fact been made. As an instance of this kind, suppose two men to own and live upon adjoining lands, and one of them, by mistake', commences building over the division line, on the land of the other, and the other, knowing the fact, makes no objection, and gives no notice of the encroachment. A court of chancery, and perhaps of law, would not permit him, who has been thus guilty of the fraudulent silence, to come forward, after the improvement was finished, and take from the other the land which he has allowed that other to use and expend money upon as his own; for, otherwise, this silence would operate as a fraud on the other party, and the law will not allow him to profit by his. own wrong, and, to prevent this, resorts to a common device in such cases, and raises the fiction of a conveyance. And there are other cases where, it is evident, that wrong and injustice would be done by allowing possession to be disturbed, and that, too, when there is no probability whatever of the existence of a deed, &c.; and in such cases, and such oijly, can there be a rightful resort to this fiction of presumption, without or .against probability.
    Fifth: Another principle adopted by courts of equity, and somewhat connected with the doctrine of presumption, as above defined, is, that they will consider that to have been done which ought to have been done; and the obligation to grant or convey, &c., coupled with a long and undisturbed possession, in accordance with such right, frequently furnishes good ground for a presumption of conveyance in fact. And the principal’ cases cited by the gentleman are of this kind, to wit: Hillary v. Wilier, 12 Vesey, 239, cited in 1 Powell on Mort. 398; 1
      Caines’ Rep. 89, 90; 11 Wend. 59, 63; 7 Johns. Rep. 5; 4 Term- ReP- 68. And although the doctrine of presumption is, some of these eases, carried further than our courts allow —~ see 5 Ohio Rep. 455, where a right in equity to a conveyance of fee is decided to be inadmissible as evidence of, and furnishing ground for, a presumption of such deed — yet, for the purposes of this argument, their authority is not disputed.
    Sixth: Cases are cited by the gentleman, which come under another principle but slightly analagous to the doctrine of presumption of conveyance, &c. That principle is, that where any thing has been done, nothing appearing to the contrary, the law or courts presume, after a long time has elapsed, that omnia rite acta esse — that the legal forms have been observed. Such are the following cases, cited by the gentleman: Jackson v. Wolsey, 11 Johns. Rep. 446; 3 Mass. Rep. 399; 10 Mass. Rep. 105. These cases have, if any, a very remote bearing on the case before the Court.
    Seventh: It is to be remarked, that courts of equity will frequently refuse their aid to a party complainant, when they would not interpose actively against him, were he defendant, but would leave the parties to their legal rights and remedies.
    Eighth: If will be found, if we examine its origin, and it is so laid down in the books, the very ground and foundation of the doctrine of presumption of grants, deeds of conveyances, &c., is the difficulty of accounting for the possession and enjoyment without presuming a grant, &c. See 2 Starkie’s Ev. 670.
    Let us now examine the principal cases, &c., quoted by the gentleman, to illustrate the principles on which such presumptions are raised, and see how far they sustain him in this case.
    The first, Hillary v. Wilier, 12 Vesey, 239: This was bill for specific performance of agreement to purchase land, by defendant: Defendant set up want of title in complainant, and the difficulty suggested was this: that, one hundred and forty years before, the land had been deeded to a trustee, to indemnify a third person, for purchasing of other property upon trust; that if the purchaser should not be evicted out of the estate purchased/ within eleven years next after the death of certain tenants, then the trustee was bound to reconvey, &c. Held, that this was not such defect of title as excused defendant for not performing his part of the contract, and that on the ground that as he ought to have reconveyed, and so long a time had elapsed without claim, the presumption wás that he had done so.
    So, as to authority quoted from 1 Powell on Mort. 401.— This was a question between mortgagor and mortgagee; and it is admitted that, after twenty years, and no payment or demand of principal or interest, prima facie presumption of payment, satisfaction and release, arises — the presumption of payment from absence of demand, and of reconveyance from payment, because it is the duty of mortgagee to reconvey, or was so formerly, at common law.
    The case in 1 Caines’ Rep. 89, 90, decides that, where a conveyance might have been claimed and enforced, and possession had gone along with it for fifty,years, and this possession, too, known to the other party, a deed, in pursuance of such right, might be presumed. And note (a) to this case, shows that it is a rule in cases of presumption,, that the facts relied on to sustain the presumption, must be so connected with the facts to be presumed, that the presumption shall be a legitimate inference from those facts. The words are: “ There must be some ‘ fact in consequence of, or in harmony with which the pre- ‘ sumption may be made ; and that if, on the contrary, the facts ‘ appearing contravene the presumption, it cannot be drawn, as, ‘ where an insufficient deed to make a tenant to the precipe is ‘ shows, a good one shall not be presumed.” 2 Stra. 1267.
    4 Wend. 59, 63 : Is this, after a lapse of thirty-two years, a release to cestui que trust from his trustee will be presumed, and this is all of the case, so far as any principle was decided.

      Jackson v. McCall, 10 Johns. Rep. 377, 380: This was an action of ejectment, in which the plain tiff claimed over the division line and fence between plaintiff and defendant, after forty-one years’ possession on each side up to said line, and when ancestor °f lessor of plaintiff (when under the proof the presumed he was in possession,) admitted that the line, as it then stood, was right, and that he was present when the King’s, surveyor fixed it, where it had always since continued to be. Held, the line could not be disturbed; and this was really all decided in the case. The Court, to be sure, in argument say, that they might, or the jury might have presumed from: 1st. An order of the council recognizing the survey. 2d. An original survey by government for Provoost, in 1664. 3d. A subsequent recognition of the allotment and survey made in the patent to McKinsey, in 1665, of adjoining lands, &e. 4th. Possession forty-one years, with the knowledge and without objections by the other party, that a patent issued to him in accordance with said survey, &c., and even from such long and recognized possession and other circumstances, the jury might also have presumed a deed from Provoost to McDonald.

      Jackson v. Murray, 7 Johns. Rep. 5, at most only decides : that after twenty years’ possession and proof before the jury of an agreement to convey the land, it may be left to the jury whether a deed has not, in fact, been made in pursuance of such agreement.

      Jackson v. Wolsey, 11 Johns. Rep. 446, 450, only decides : that the existence and execution of a deed from commissioners appointed under the statute to make partition, might be proved by one of the commissioners, and by the counsel who drew the deed, without proof of loss, and that, in such cases, it is to be presumed, in the absence of any proof to the contrary, that it was legally, that is, in proper form, executed. There execution is proved by witnesses, and its legality or formality only presumed.

      England v. Slade, 4 Term Rep. 683, decides: that where trustees are directed to convey to a devisee at majority, the jury may presume he did so after a less period than twenty years.

      Jackson v. Hudson, 3 Johns. Ch. Rep. 375, 388 : Defendant in ejectment having no title in himself, set up in defence an .outstanding title in the Mohawk .'Indians.. Plaiptiff showed that no claim had been made by them' since the American war, and that, so far as could be ascertained, the' Mohawks were extinct as a tribe, and so there was • no proof of an outstanding subsisting titleand defence failed. , , '

      Jackson v. Damárest, 2 Caines’ Rep. 381; This was a cáse •of presumption, not of grant or conveyance of any kind, but of matter in-pais,” to wit: the entry of landlord according tp his right after-abandonment of premises.
    3 Mass. Rep. 399, decides: that after twenty years, presumption-arises'that administrators, after .proof of order to sell and actual sale, took the' necessary steps previous'to sale, &c.- . • '
    10 Mass. Rep.-105: Same presumption as to regularity of steps necessary, previous'to tax sale,. &c. .. < ,

      Bergen y. Bennett, 1' Caines’ Cases in Error, 1, 18/: This Was a bill by mortgagees against mortgagors to redeem premises sold Sixteen years before under -power of sale. in mortgage, oh the ground- that, in notice of sale, the lands were advertised for-sale subject to a resérvatiori of a right of drain- ten feet wide,, and Court refused .to open sale and let in compláina-nt.to redeem, especially as the jiiortgagofs, had known.'and -.'acqujéscéd in the sale so long. ' .. ■
    - Livingstone v. Livingstone, 4 Johns. Ch. Rep. 294: This was'a- bill for discovery óf counterpart of indenture of lease binding lessee to payment of, rent and for account of rent- for forty-four years,, filed after the expiration of that period and "no rent paid or demanded, and -the Court refused relief arid discharged the bill on the ground- that the claim .for rent had been abandoned. . ■ . ....
    • 1 Johns. Ch. Rep. 357, 362: In this-case, a'deed-in fee re-, served the right of cutting" and hewing tinaber and grazing cat-tie in woods, not appropriated -or' fenced ini . Held; that the" rights reserved ceased as soon as the premises - were- fenced in- ■ by grantee, and, especially, as the premises had been' enclosed, ,for thirty years, and during all that "time the right had"'not" been claimed, and this was the whole of. the decision-; and, though' the Court, in this and some of the other cases, made remarks about presumption of release and extinguishment of right, yet the decisions in this and the other cases could be easily supported without any resort to this docrine, and did not depend upon it.

      Earl v. Baxter, quoted in Phil. Ev. 124, note: Of this case, we know nothing but what can be gathered from these few words: “ An original lease, for a long time, being pro- ‘ duced and proof given of possession for seventy years, it will ‘ be left to the jury to presume the c mesne assignments.’ ” This is all we know of the case, and is certainly too meagre an account of it to be set up as authority for any thing; and all the features of the case not expressed in these words, from which the gentleman seeks to draw conclusions, have been supplied by his imagination.
    And now, on a review of all the cases quoted by the complainant, it will be found, that in no case has a presumption of conveyance, &c., been sustained, except where the party presumed to have conveyed was aware of his right, or .of the possession and claim of the party to whom the conveyance was presumed to have been made, and, in most of the cases, both circumstances were united. Such was the case in 4 Wend. 63, so much relied on by the gentleman, and the release was from trustee to cestui que trust, who was entitled to it. The gentleman says it was in favor of Moore, but it is sufficient to reply, that it was to cestui que trust, and if Moore was in a situation to avail himself of a release to another, that circumstance does not affect the principle on which the presumption is founded. If any inference could be drawn from that case, affecting the present, it would be that a presumption arose in this case that E. Pierce had released to the outstanding warrant-holders; but this could not affect complainant, for he is not in a situation to avail himself of it, as he does not in any way connect himself with these warrant-holders.
   Birchard, J.

In this case, our great difficulty has been to ascertain the facts which are controverted in the bill and answer. After the lapse of half a century, it is remarkable that a living witness has been found, by either party, capable of throwing much light upon a transaction so ancient. subjects of ordinary occurrence, the memory of few men is to-be trusted after the lapse of over forty years. The patent of the United States, executed in 1802, purports to vest in the elder Pierce the entire legal and equitable estate, in the four thousand acres of land, which is the subject of this litigation. These complainants assert that he was the mere agent of the persons entitled to the warrants, and held the legal title as trustee for them. The fact is denied in the answer, which was, that respondent’s ancestor was the owner of both the legal and equitable estate in the entire tract. We must rely upon the proof for our own conclusions.

Azariah Root, the only witness that speaks from any direct knowledge upon the subject, testifies to conversations which occurred in 1798 or ’99. He states, in substance, that Pierce said he had no interest in this and another four thousand acre tract, except for location fees and expenses; that he had not purchased any warrants at that time; and that he claimed one dollar and fifty cents, or two dollars, for locating each hundred acres, or two hundred acres for locating each quarter township of four thousand acres. This statement of itself, after so long a period has elapsed, would be of little weight were it uncorroborated by other facts and circumstances. But when we consider that, at that time, there was no way provided for satisfying the bounty land warrants issued for military services during the war of the revolution, save by uniting enough to entitle the patentee to a quarter township, and that the President of the United States refused to issue the patents so as to show the respective interests of each warrantee in the premises; there is to be found in the nature of the transaction that which would tend to fix, in the memory of one dealing in lands and warrants, a statement like the one made to Root by Pierce, even if nothing were to be gathered from the notorious fact, that nearly every patent that was issued for a quarter township, although absolute on its face, was held by the grantee in trust, either • for -himself' and others, or" entirely for others.- .This' Patent was indisputably so held. The fací is established by the recitals of the elder Pierce in. sundry deeds which- are-in' evidence.- A deed executed, Oct. 16, 1801, by E.. Pierce, to the' heirs of.Moses Ashley, deceased;"contains this recital: “ .Whereas, I, Ebenezer Pierce, * * * did, oh the fourth of 4 March, 1800, * * * as agent fora-nupaber of persons, locate 4 army land warrants, among which .was. one in the name of ‘.Moses Ashley, late of'Stockbridgé, *: * for four hundred acres, ‘ being« No. 11, and one other for one hundred acres, being No. ‘ 4580; one other in the name of. Peter Maynard, for one’ hum ‘ deed acres; being'No. 4683, and .one other in the name of ‘-Samuel Phipps,,for one hundred acres, being No. 4120; all ‘ which' warrants are located in my name, in the second , section ‘. of. .the fourth township ip the seventeenth range; in -the' tract ‘of land appropriated to satisfy army warrants.” .This deed further recites conveyances of all the above warrants to Moses Ashley, which had'been issued for other than his oWh military services; .that at his death, the whole'descended to. his three-children, Mo.ses Robert, Richard Henry, and Thankful, as heirs at law, and that they are the legal owners'; that their, mother, the widow, Thankful Ashley; had' paid $10'! 50, as their natural guardian, in full'satisfaction of and-for his trouble and expense. In consideration-of which he-granted, with the usual covenants, to. warrant and defénd the title, &c. Similar recitals-and covenants are contained in 'other deeds, embracing in' all fifteen hundred- acres of the land in controversy. -, -They tend to corrobórate the evidence of Root, .and aré sufficient, in connection with it, to overthrow that, part of the answer which denies in' toto the trust alledged in the bill. The! fact being established' that E. Pierce, held only a naked legal title, coupled with an equity, equal to one dollar and fifty cents, upon each hundred acres, it by no. means necessarily follows that the whole of the remaining equity is in these complainants, and that they are entitled-to a decree. AH of these recitals and the testimony may be consistent with the hypothesis assumed, by respondent’s eounsel: That the outstanding equities of. the owners of the warrants were, in some instances, extinguished by purchases, and became vested in E. Pierce after the locations were made, or after the patent itself was issued to him. That course was frequently pursued by locators of this class of land warrants; and if not pursued in this case, it is quite clear that no one can interfere with the legal title vested in the trustee save ■ those who represent the trust estate.

We come, then, to consider the extent of interest which the complainants have "shown by purchase, occupancy or otherwise, by either direct or presumptive evidence. They show.title to whatever interest Moses Byxbe had. in1 the. tracts claimed by them respectively, under deed from him. Byxbe’s title is, 1st. A defective tax deed and possession since 1804. 2d. A deed from the heirs of ,E. Pierce, dated Dec. 24, 1806, by which he acquired seven-tenths of the entire four thousand acres, or seven-tenths of all the interest in the whole tract', of which E. Pierce died seized. Byxbe, under the deed from the heirs of Ashley, acquired the right to the lands embraced in warrants 11, 4580, 4683 and 4120, amounting to seven hundred acres................... ...... .... 700 acres.

Under Charles Kilbourne, to warrant ..4506 for 100 “

“ Henry Sewall, “ ...1895 “ 300 “

CC cc Samuel Tilley, ...5163 100

CC cc Isaiah Tiffany, ,2175 “ 200 “

cc cc Jacob Rolph, 100 ...6409 “

c: Ebcnezer Balantine, “ 300 ... 127 “

Z. Herrick, CC ...4401 “ 100

D. Jewett, CC cc ...4452 “ 100

Thadeus Frisbee, cc cc ...4107 “ 100

Wm. Woodward, cc cc ..3876 100

Walter Dean, cc cc ... 519 300

Thos. Marshall, cc cc ,..1348 « 500

cc John Holdridge, cc cc 923 “ 200

cc Elijah Murray, it cc ..4627 “ 100 CC

cc Israel Smith. cc cc ..5066 “ 100 cc

In all, 3400 acres,

Leaving six hundred acres unaccounted for. To an undivided three-tenths of this only, equal to one hundred and eighty can the defendants in any Court claim title, provided the principles of law are such as to sustain the several conveyances above mentioned. Some of these conveyances, however, are defectively executed, and others are not fully proved, as for instance, that in the name of Thomas Marshall, for five hundred acres. The conveyance in this instance was by persons representing themselves to be the. executors of Thomas Marshall, who assumed to convey, forty-three years since, under a power conferred upon them by the last will and testament of said Thomas; and the will itself is not produced, although the deed and possession have remained with Byxbe since its date. Defects of other descriptions exist as to others of them. Old conveyances, some of which were made under powers of attorney, but in the name of the attorney instead of the name of the principal; but possession of both title, papers and lands, have continued over forty years in him.

In reference to all these, we hold that time has cured the defects, and in support of a possession of such long standing, we will presume enough in their favor to sustain the titles of the occupants to all the lands which they purport to convey. It is not to be presumed that any of those persons who were once entitled to the warrants, and who, forty-three years ago, attempted to transfer .their rights to Byxbe, and who have never since set up any claim to tiiese lands, have yet any remaining interest therein. There is nothing in the case tending to show that any of the persons who are to be affected by this presumption against their equities, were ignorant of their rights, or under any disability which prevented them from asserting them in due time, or which would operate to prevent the running of the statute of limitations in an analogous case at law. We hold, therefore, that possession and time united, have vested in the complainants a perfect title in equity to all the rights which the holders of the warrants ever had to the land in controversy.

But, on the part of the complainants it is further urged, that this presumption should be extended so far as to secure them in their entire possessions; that we may presume that Byxbe purchased up all the rights outstanding, from the fact that he purchased so large a proportion of the whole.

This would be pressing the doctrine of presumption far beyond what would be warranted by the law and the facts.

The respondent has already recovered, in ejectment against one of the complainants, an undivided three-tenths part of the land, which he occupies, and the complainants, by their counsel, admit that the statute of limitations would not bar the claim of the three minor heirs, whose interests are represented by respondent, Pierce,, by reason of their continued absence from the State.

The same absence, together with their infancy and ignorance of their rights until the year 1835, when they first began to assert them, prevents the lapse of time from defeating their claim. And again, the deed of 1806, from the adult heirs to Byxbe, necessarily raises -a presumption that, at its date the heirs of the elder Pierce held an interest in some of the warrants that were merged in the patent to their ancestor; else why should Byxbe at that day offer to pay the sum of five hundred dollars for a conveyance of their title ? If the whole equity was in the warrantors, save the locator’s lien, the heirs were bound to convey, on the payment of the expenses of E. Pierce in making the location and the production of the assignments. In the conveyances made by Pierce in his lifetime, his uniform charge for locating was one dollar and a half for each hundred acres. He had conveyed, in his lifetime, fifteen hundred out of the four thousand acres to the owners of warrants at that rate, and an equal charge for the residue would have left, at the date of Byxbe’s purchases from the warrant-holders, a sum not exceeding fifty dollars, as the extent to which the heirs of E. Pierce had any claim for location fees. Why should Byxbe have given more, but for the reason that he then knew that Pierce held, as to an undivided portion of the land, both the legal and equitable title ? It seems to us that the inference is, that he would not otherwise have paid that sum — that he would have tendered the fees due and demanded a deed, and if not voluntarily exeouted, that he would have enforced in chancery a conveyance. The presumption arising from this portion of the evidence isj not that Byxbe had purchased in the rights of the warrant-holders to the remaining' six hundred acres, but that Pierce'had made such purchases after procuring the patent or making the locations. This presumption is supported by the patent and the ’absence of any-claim"by-any person under the’ warrants of Parker, Barnard, Jackson and Winchell, who, were entitled to the six hundred acres for .which Byxbe had no title. • The course commonly pursued in locating this class.of warrants was^ for a person owning one or. more warrants to induce - the owners of others to imite with’him,, until the .whole would be sufficient to entitle them to ,a tract of four thousand acres, when the patent" would be issued in the name of the' one authorized to surrender the warrants,-also strongly sustains" this presumption. ■ ■. ■ . • •

Under these" views, "the complainants'are entitled to a decree for ah undivided interest of all of the four thousand acre tract, except one hundred and eighty acres, .which; reduced to'-'fractions, will give to Pierce an interest in, each tract Owned by each' complainant separately," equal to nine two-hundredth •parts of the whole, or at the rate of four acres and one-half in each hundred acres, subject", however, tó'the'clainis of the several complainants as. occupying'claimánts for the value of their improvements and the- taxes which they have paid, after deducting1 the válue ,of any -rents and profits, they may-have derived from the" land. ' . '• '•’ .

', A decree may be drawn up accordingly,-referring the case to a master. < ' ..." . " " ,


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    Lyon, Buck and Wolf vs. William McCadden.
    Sworn copies of estimates from the office of the Resident Engineer, are competent " evidence in an action against* ¿‘contractor, by a sub-contractor, to recover for'work . done* bn the .public works, for the-purpose of ascertaining the value of the work done:' " ‘ : • . • - . ’ ", * '
    This is a Writ or. Error to the Supreme Court; of Muskingum County, riiade returnable here. • '.
    ■ .The original action was assumpsit, for work and labor, &c. The declaration . contained only the common counts, to which wás/intérppsed .the plea of the'general 'issue, with notice ofsetoff.:' A’t the . October ‘ térm of the Supreme. Court, 1.844, in Muskingum county,, the: case was submitted to a jury, who found-a verdict for plaintiff below of $3,137.97, upon which the Court rendered'judgment.
    • During the progress of the trial the' following bill of excep.tions' was taken: • • . ' , . ' ■ ' •
    “Be it remembered that,, upon the trial of this cause, the ‘ plaintiff gave in evidence a.written agreement, signed by the ‘plaintiff and. defendants,- and ...’which was in "the'plaintiff’s • handwriting; and was as follows,-to wit: ‘McCadden agrees ‘ to perform fill'the.work on'Lyon’s (Taylorsville) section-of "e' public works, lying above the-locks, and also the excavátioñ of ‘ the lock-pits; above .low water, at his prices; and agrees, to . ‘ give Lyon fifteen hundred dollars, .as .premium; on the Same.- ‘ The payments to be made as. the'work progresses. Taylors- ‘ ville,-Ohio, Nov. 21, 1836. . ' .
    “William McCadden,.
    “Lyon, Buck & Wolf.’”
    • The plaintiff then- gave in. evidence the contract entered into, in October, 1836, between the defendants and the State of Ohio,' referred to . in the agreement between plaintiff, and defendants, which contained, among other things, the following: The contract prices were stipulated for all work enumerated; and it provided that the Board of Public Works should appoint some suitable engineer to inspect the works, with power to direct the mode and manner of doing the work; to direct changes in the work, and determine the compensation to be paid the defendants on account of a change, and to require work to be done not stipulated for in the contract, and fix the price to be paid therefor; and, to prevent all disputes, such engineer should determine when the work was completed according to the contract, and' certify the same in writing, under his hand, to the Board of Public Works, together with his estimate of the amount of the various kinds of work therein specified, which shall have been done under the contract, which estimate shall be final between the parties: ■ And thereupon the Board covenanted and agreed, within ten days after notice of such certificates and estimates, to pay the defendants the amount which should be due them, at the prices stipulated. The plaintiff then, for the purpose of showing the amount of work which had been done by him upon said section five, gave in evidence sworn copies of what he claimed to be the estimates of the engineers of the State having superintendence of the work. These sworn copies were objected to by the defendants’ counsel, but admitted by the Court. The evidence rejecting them was as follows: The assistant engineers, stationed at the different sections on the line of the Muskingum river improvement, made estimates of work done, from time to time, as they were directed, and transmitted these estimates, on detached pieces of paper, to the resident engineer, in McConnelsville. These estimates consisted of quantities and kinds of work, and the prices were annexed and carried out by the resident engineer after they reached his office. The resident engineer also examined these estimates, and corrected ■ them when he deemed them erroneous, sometimes increasing and sometimes reducing their estimated amount of work. The resident engineer then caused these estimates, thus corrected, to be registered in a book kept for that purpose. The original papers, transmitted by the assistant engineers to the office at McConnelsville, were sometimes filed, and sometimes thrown aside, as of no further use. There are no regular and complete files of them in the office. The estimates entered in the register, were entered, sometimes in the. handwriting of Messrs. Curtis and McAboy, the resident engineers at different periods, and sometimes in the handwriting of Mr. Straughn, and other persons employed in the office; and all the copies offered in evidence were copied from the register above described, excepting one called the final estimate; and with respect to that, the evidence was, that the witness asked Mr. McAboy, the resident engineer then in charge of the Muskingum Improvement, to furnish him with final estimates of the work done by defendants, who had contracts for other sections beside section five, and that, from a file of papers marked “Final Estimates,” the said McAboy handed the> witness certain papers, from one of which, purporting to be a final estimate of section five, a copy was made by witness, and given in evidence as above stated. This last mentioned estimate showed work done by plaintiff to the amount of seventy dollars more than that which preceded it, which was copied from the book, and increased the verdict of the jury in that sum. Neither the book nor paper were signed or certified, nor did the witness know in what handwriting they were.
    In the course of the further progress of the cause, it was proved by the defendants that the plaintiff, during the progress of the work, had said, that he did not expect to receive his pay faster than the defendants received it from the State; once, that in July, 1840, just before the completion of plaintiff’s work, the plaintiff admitted that, according to the scale of compensation prescribed by the State, (reserving per centum,) he had been paid more than was due to him, and that plaintiff said he had stopped or suspended his money in the hands of the acting member of the Board of Public Works; and the defendants further gave, in evidence, a letter of Leander Ransom^ Esq., the said acting member of the board, as follows :

      «0. Wolf,'Esq. . • * ’ “ Colubíbus, May 14, 1841.
    , . “Deav'Sir: — Tours of'the lltli 'instant, addressed' to Mr. Medbiiry, was this morning.' , At the time payments were made on the Muskingum, a few days since, Mr. McCadden presented a statement; the purport of which was that you. owed him some six or seven thousand dollars, for work . done under your contract,.ás a snb-conttactor, and. that, he found he should not-be paid for,a long time, at any rate, were' th'e money paid to you, Not lmowihg.any thing ábout the ¿matter,’ further than the. statement' above'referred to, I told Mr. Buck, who .was' present, that we must defer making-a payment on your section 'until s,ome arrangement should.he made with McCadden; or a -different aspect presented to this affair. Our estimate pan be made on-your work at any time, when .some .person is-present who is authorized-to receive 'it.an’d. receipt for it,-provided .the. McCadden- difficulty is'arranged,-if any .'-really exists. Asmo estimate has been made, the money remains in the State Treasury. l . • 1 , , ' . v' . ■
    “ Very respectfully, . • ' '• ,',-N‘LEANDÉR'RANSOM.”
    No-svidencé.' was. given,, oii';..either, ¿idé,- of any 'payment: By 'the-¡State to the defendants, after tHe/date of that letter, before the--commencement’of the s.uit,.- Defendants' asked' the Court to instruct the jury, that the plaintiff., could not. recover in this ac.tipn,,' if'the', jury believed' .-th'e evidence' as' jtb tlie, 'plaintiff’s saying that he - did not .expect to be paid fas.tér than the-'defendants' received it ..from the State, unless'.there, was- proof tbsatisfy the. jury’ that money had been received by'the. defendants,, bn account ofpláintiff’s work, from the -State, before 'suit brought'; .which-instructions the Court refused- to give.T.o which opinion' of the'Court, the'defendants, also except;-and they pray that this, their, bill of exception’s- to’.- said • several opinions of the Court,'may be .signed and; sealed'and made part of the récordin said cause.; which is accordingly done:
    The érrors assigned are, that the C.oui.t erred - in admitting copies of the estimates.,to 'go in evidence to the jury,-and in ¡refusing the instructions to the jury as requested by defendant’s counsel.' -
    Isaac Parrish, for Plaintiffs in Error.

      M. Stitivell, for Defendant in Error.
   Read, J.

We find no error in the ruling of the Supreme Court upon the circuit. In establishing the amount of plaintiffs’ claim, resort was had to the estimates of the engineers, as evidenced by sworn copies. It is made the duty of resident engineers, by the requisition of the Board of Public Works, and is necessary to the correct discharge of their official duties, to keep records of their proceedings. Estimates, mesne and final, those made during the progress of the work and after its completion, should be preserved. That the resident engineers, upon the several sections of the public works, have kept such record, is a fact well known. It is equally well known, that-all the hands, contractors, and persons employed upon any particular work, look to the records of the resident engineer for the requisite estimates, mesne and final, to enable them to ascertain their rights and make settlements. This is the universal practice and understanding. It never was supposed by any body that a person upon a particular section must go to Columbus, to the office of the Board of Public Works, to ascertain facts which could be procured from the office of the resident engineer. The very object of the office of resident engineer is to make estimates and furnish evidence of it; and precisely what the resident office furnishes, constitutes the records of the office of the Board of Public Works. Ingenuity is quite active, oftentimes, in suggesting reasons, why money should not be paid to hands and contractors for labor performed; and much distress is sometimes manifested lest the Court should compel a man to pay his honest debts. But in this case we can discover no violation of principle in the admission of evidence, as' it was nothing more than the admission of sworn copies of a record from a public office. And, beyond the estimates therein made and contained, were those referred to in the contracts, and by the understanding of all parties, as the evidence upon which to base payments and make final settlements, and determine what was due between the parties. There is nothing in the objection that these were copies of copies; they were the copies of the record. There is no doubt the record was made up of facts contained on paper, brought there for that and other purposes. This is the way all records must be made up. The thing to bé recorded must precede its being recorded.

As to the fact, that some of the money due from the State to the original contractors was retained, at the instance of Mc-Cadden, by the public officers and constituted a bar to a recovery, the Court were not called upon to charge respecting that matter. And the presumption is, if it did constitute a bar, that the fact was found in favor of McCadden, as he recovered a verdict and judgment. But I do not perceive any thing in the objection. McCadden could have but one satisfaction, and the fact that he attempted to secure the payment of his debt, can constitute no bar to a judgment on the original demand.

The fact that McCadden may have said, from timo to time, that he did not expect his pay any faster than the defendants received it from the State, amounts to no defence. It cannot be construed into a contract not to sue. If so, it is without consideration, and not binding. There is no error apparent upon the record.

Judgment Affirmed.


author: Birchard, J.

text:
    Lawrence S. Humiston and others vs. John Anderson’s Administrators.
    Jt is error in the Common Pleas to dismiss an appeal from a Justice of the Peace, for the reason that his transcript docs not state the form of action, or that he has omitted to send up a bill of particulars.
    This is a Writ of Error directed to the Supreme Court for the County of Trumbull.
    The facts of the case are contained in a very voluminous record, but may be stated in few words, thus:
    On the 17th June, 1844, the plaintiff and defendants entered an amicable action before a justice of the peace in the township of Bazetta. The defendants in error filed their bill of particulars, claiming one hundred dollars, and, by consent of parties, the cause was continued, and finally tried and judgment rendered for plaintiff, July 1, 1844, for $ 17 and costs of suit. On the 3d day of July, 1844, the plaintiff entered bail for appeal, and, on the 8th day of said July, took his transcript and filed it in the Court of Common Pleas, which commenced its session six days before — on the 2d day of July. -
    In Bank.
    Dec. Term, 1846.
    At the succeeding term of Octob.er, and on the 10th day 6f the term, an entry w'as made in the journals of the Common Pleas in these words: “ On motion to the Court by Mr. Tut- ‘ tie, counsel for the appellee, it is-ordered that the appeal taken ‘ in this cáse be quashed, for the the reason that the transcript ‘ of the proceedings of the justice, filed in this case, does in no ‘ manner set forth the cause of the plaintiff’s action nor the ‘ nature or the items of the plaintiff’s demand, and that no bill ‘ of particulars and no statement of the nature or items of the ‘ plaintiff’s claim has been filed in this Court; whereupon, it is ‘ considered that the appellee recover of the plaintiff his cost ‘ to be taxed, and that this cause be remanded to the justice, to ‘ be proceeded in as if no appeal had been taken.”
    , At the next succeeding term, a motion was make to reinstate the proceedings, which was' refused, and a bill of exceptions was taken, from which, with the transcript and1 journal entry, the above facts appear, and, also, that, the-bill of particulars had been filed with the transcript, but, being in the form of an instrument- upon which other payments were due, the plaintiff had taken it from the files, and that the plaintiff or his counsel had no knowledge of Mr. Tuttle’s motion or the order of Court till he offered to file his declaration within rules, after the .close of the October term, 1844.
    Errors were assigned, and, upon the circuit, the Supreme' Court reversed the decision, of the Common Pleas and reinstated the appeal; to reverse which decision, this writ is prosecuted.

      McConnell &/■ Tuttle, for Plaintiffs in Error.

      M. &f C. G. Sutliff,-. for Defendants in Error.
   Birchard, J.

• There is really but one question in this case, and that is decisive of its merits. Although more. haye been argued, with great industry, we shall notice but one, not solely for want of. time, but because,- also, their, determination either way will, not' affect the decision. ""Was the appeal-dismissed rightfully ? The facts stated in the journal entry, as the ground of the dismissal, are two — ’

First: Neglect,.by the Justice, to state the form of action and nature of the claim.

Second: Neglect to send up the bill of particulars.

The first furnished no pretext-for quashing the appeal. No magistrate’s proceedings are void for a defect of this description. If it were held sufficient to avoid his judgment, on certiorari, very few justice’s judgments would be worth any thing. Superior courts have never required technicality at the hands of Justices of the Peace, and were they to attempt it, the thing would be found impracticable. Those officers are not, in general, professional men, who are familiar with legal technicalities and the subtle niceties which distinguish the different forms of common law actions : and the public welfare does not require that they should attempt to live up to nice rules, which, in their courts, would subserve no great good, and in which they are.not supposed to be well versed.

' The other ground of dismissal was as bad as the first. The statute directs magistrates to send up the bill of particulars with their transcripts. Suppose he had neglected to do so, as the Court found, (incorrectly, it seems.) ■ This fault should not have lost to the plaintiffs the right to appeal, which they had perfected. It did not appear to the Court that the plaintiffs were even in default. Had it so appeared, all that could have been done with propriety, would have been to direct them to become nonsuit.

An objection has been'urged to' our taking any notice of any matters except what transpired on the motion 'to reinstate the proceedings. To this it is sufficient to .observe, that the before us purports to be a record, and all of the Record, of the entire proceedings ■ had in- this cause, Before the Court of Comiiion.Pleas. The Supreme.; Court, únder the general'assignment’ of errors, were therefore bound • to inquire whether any .error had-occurred; Which' appeared on' the face, of the record, and they found the one we-have noticed. . • '

Judgment Affirmed! ■


text:
    William and Flora King vs. Beck, Administrator of Christian King. The Same vs. The Same.
    A deyise of realty to one and his heirs, to be used by the devisee f6r lifé'/with remainder oyer to a third person, will not vest the fee in the devisee,-under the rul.e in Shelley's case, if such, construction would defeat the manifest intentions of the testator. . ’• ’ •
    The Words heir Or heirs’, in a will, if such was the clear intent of the testator,'may be construed child or children, and they will take as purchasers.
    A similar, devise of personalty, if such» be the clear int.ent of the testator, will vest ■ Such personalty, after the determination of the life estate, in the child or children; as purchasers.
    -These cases were reserved- in .Fairfield 'County.
    They are bills of review, filed to review decrees rendered at the December term, 1843, of the Court in'.Bank,-in tw.o. cas.es, to wit: William and Fiord King-v.'Beck,. Adm’r.of ■Christian King,' and Beck, Adm’r of Christian King, v;- William and Flora King. .The first-was a bill in cháncéiy,' to compel the administrator to-convey certain bank-stock, 'standing .in their names. The second was a-'petifio'n,-by,the adpiinistrator of Christian King, to sell lands. Both depended upon the construction and effect of a clause in William King’s will, which reads as follows: ' '
    In Bank.
    Dec. Term, 1846.

      “ If it so please God, that at the time of my decease, I should ‘ die without any lawful heir or heirs, born in wedlock, in such ‘ case I will and bequeath all the property I may be possessed ‘ of before my decease, to my brother Christian, without any ‘ reservation, to be used by him while he lives; and, if it so- ‘ please God, that, at the time of brother Christian’s decease, ‘ he should be possessed of a legal heir or heirs, born in wed- ‘ lock, I then will and bequeath all and every kind of property * which might be considered mine, in my lifetime, and of which ‘ the said Christian may be seized at the time of his decease, c to such heir or heirs, and no other. But should I myself die, 1 without lawful heirs, and also my brother Christian die with- ‘ out heirs born lawfully, as above stated, I then will what may ‘ be considered my share, after my brother’s decease, and not ‘ before, to my two sisters’ children, Ish and Cassel, in equal £ dividends or shares, and not to be used by any of them until 1 they come to the age allowed by law.”
    The testator died, possessed of both real and personal property. Christian King survived the testator, and died, leaving heirs of his body. The sister of the testator had children living, both at the death of the testator and at the death of Christian King.
    The Court, in substance decreed, in the one case, that Christian King, under the will, took the personal property absolutely to himself, and in the other, that he took a fee in the land; and hence that both the personal and real property devised by the will, was subject to the payment of the debts of Christian King. In this respect, it is claimed, the Court erred, and to reverse those decrees these bills of review are brought.
    T. Ewing, for Complainants in Review.

      H. Stanbery, (Attorney General,) and P. Van Trump, for Defendants.

      These cases were argued at length in open court. Printed arguments were also submitted by Mr. Ewing and Mr. Yan Trump; but as they covered substantially the same ground embraced in their previous arguments, they are omitted.
    The original cases, with the arguments in extenso, may be found in 12 Ohio Rep. 390.
   Read, J.

In the construction of wills, the intention of the testator must govern, if it be not unlawful or inconsistent with the rules of law. The control over intention, by the rules of law, applies not to the construction of words, but the nature of the estate. A testator may use such words as he may please, to convey his intention; and such intention, if clearly manifested, will be carried into effect, if it be not unlawful, and does not create an estate forbidden by law. A testator has the perfect right to choose his own language, but not to create an estate which the law does not permit. He would have no right to create a perpetuity, or in any sense to break down or violate the fixed principles of property.

If, then, in the case under consideration, it was the intention of the testator to give a life estate only to Christian King, with a remainder in fee to his children, if any, at the time of his death, and a contingent remainder over to his two sisters’ children, Ish and Cassel, it would be perfectly legal, for the estates created are lawful; and the only question would be, has he employed words which manifest such intention?

It is perfectly legal to give a life estate to one and remainder-over in fee to another. If, in the present instance, the testator had devised a life estate to Christian King, with a remainder over to a stranger, and a contingent remainder over, there would have been no doubt about the -will at all; the estates they created would have all been legal, and been carried into effect. The whole doubt and confusion in this case grows out of the employment of the words heir or heirs.” If the word children had been used, there would have been no doubt; but it is contended that the word “ heirs ” has a fixed legal meanjng, and is always a word of limitation and not purchase, and hence would bring the estate devised to Christian King and his heirs within the rule in Shelley’s case, and vest the entire fee in Christian. The rule in Shelley’s case is not a rule of construction, but a law of property.- It is not designed to give a meaning to words, but to fix the nature and quantity of an estate. If the estate for life, created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee, or donee. The testator may use the word “ heir,” and take it without its usual, legal sense, if he employ words respecting it to show that he did not use it in its ordinary legal sense; or if the plain intention manifested in the will shows that it was not employed in its usual legal sense. A mere presumed intention will not control its legal signification and operation; but with words of explanation, showing the manifest intent of the testator, it can be made a word of purchase. If, where the word “heir” is used, there be superadded words of limitation, establishing a new succession, the first donee or devisee would take but a life estate. The expressed intent, then, of the testator, will affix the meaning to the word “ heirit is said a mere implication will not.

What then was the intention in this case ? To ascertain this, we must look to the words and the motives of the devisee. We must not start out with the presumption that it was the design of the testator to create an estate tail, and construe the words of the will to effect that object. That was only a family law-in England, designed to build up families,-cheat creditors, and prevent forfeitures, and is in no wise consistent with the spirit and genius of our own government and laws, or the habits and feelings of our people. Our statute forbids it, and such I believe is the case in all, or very nearly all the States in this Union. Nor is there with us any disposition to strain a point to bring a case within the operation of the rule in Shelley’s case, a rule which had its origin in feudal tenure, and was first adopted to secure to the lords the profits and perquisites incident to inheritances; and, as an after thought, the additional reason that it was necessary to prevent an abeyance of the fee. It is at best a mere artificial technicality; and just in proportion as it lacks reason, it appears to have won upon the affections of the profession. In its simplicity, it possesses sóme sense, and to that extent we have adopted it as a rule. of property in Ohio. But it is the high and imperative duty of this Court to conform its judicial decisions, where we attempt to walk by the light of precedent from another country, to the nature of our own government and free institutions.

Throwing aside, then, all presumptions in favor of estates tail, and all peculiar affection for the rule in Shelley’s case, and attempting to arrive at the intention of the testator from the language employed, and the nature of the devises contained in the will, what must we say was the intention of the testator ?

First: “ I will and bequeath all the property I may be pos- £ sessed of before' my decease, to my brother Christian, to be used by him while he lives.

Second: - “ And if it so please God that, at the time of bro- ther Christian’s decease, he should be possessed of legal heir or heirs, born in lawful wedlock, I then will and bequeath all £ and every kind of property which might be considered mine £ in my lifetime, and of which the said Christian máy be seized £ at the time of his decease, to such heir or heirs, and no other.

Third: ££ But, should I myself die without lawful heirs, and £ also my brother Christian die without heirs born lawfully as above stated, I then will what may be considered my brother’s £ share at my decease, and not before, to my two sister’s children, Ish and Cassel.”

Now, here is an express estate for life,'by the words of the will, to Christian, and nothing more, and then to his heir or heirs — and if none at the time of Christian’s death, to the children of Ish and Cassel. The limitation of the remainder over to the children of Ish and Cassel, is not to take place on the indéfinite failure of issue of Christian King, but must vest at the instant of Christian’s death, or never. . Now, had the testator intended to devise all his property to Christian King and his heirs, why limit over a contingent remainder to the children of Ish and Cassel ? If he had intended to devise his whole estate in the first instance to Christian, why do so vain a thing' as to limit a contingent remainder over to the children of Ish and Cassel ? If he had intended to use the words “ heir or heirs ” as words of limitation, he knew that the whole estate was vested at once in Christian, and why, therefore, create the contingent remainder over ? But, it may be said, he was ignorant of the rules of law. The presumption is that he knew the law, and that he employed the words “ heirs or heirs ” in such sense as would permit the remainder to vest on the happening of the specified contingency. To give effect, then, to each devise in this will — the express life estate to Christian, and the contingent remainder to the children of Ish and Cassel — the words “ heir or heirs ” must be read, child or children. It has already been stated that the words “ heir or heirs ” may be treated as designatio persona, or as child or children, if the manifest intent of the testator requires it. But it is said that Christian is vested by the wall with the power of disposing of the property. This is not- so said in the will. But it is expressly said it is to be used by him whilst he lives. But it is contended the Words “ seized at his death ” shows that it was not contemplated by William that Christian should have all the property at his death which had been devised to him, and hence that it was contemplated that he might dispose of it. This form of expression may be accounted for in a different way. It might well be supposed by William, that the personalty could be lost in other w'ays than by disposition. To hold that the words “ seized at his death ” carried the implied power of disposition, would defeat other manifest intents — where, to hold that it merely was employed in reference to destruction or loss, would be consistent with, and support every intent expressed in the will. That construction, then, should be employed which is most consistent with the main expressed intention. But the words used, “ for life,” are as strong to express an intention as the words “ seized at the death.” The intention, from the words employed and the nature of the devises clearly was, to give Christian an estate for life, and nothing more — remainder in fee to his children, and contingent remainder over. This withdraws the case wholly from the rule in Shelley’s case, for the estates created are such as the law recognizes.

Hence, as to the realty, Christian took a life estate only, and his children a remainder in fee, as purchasers. So of the personalty, the intent was the same; and remainder over after a life estate in personalty may be limited by devise. Hence in this, also, the children of Christian King take the remainder as purchasers.

To adopt ah opposite construction would be to conclude that the testator intended that the property devised should go to pay the debts of Christian. This, in view of the words of the will and the devises, would be doing violence to the whole will. It is said creditors may be wronged if the children of Christian King take this property. We cannot perceive how. We know of no equity which should enable them to seize upon the. bounty of a testator and apply if to the payment of the debts of another person. It is not the property of the debtor, and the equities of the devisees are equally strong.

We have no doubt that there was error in the decrees heretofore pronounced, and therefore reverse them.

A vast multitude of books and authorities have been cited in this case. I have not cited them expressly in my opinion. I am content to extract the essence, and do not choose to become a compiler.

Decree Reversed.


author: Wood, C. J.

text:
    In Bank.
    Dec. Term, 1846.
    Harlow Chapin vs. Lewellen Allison, Sheriff of Holmes County.
    Process bearing test thus *. 11 Witness my signature and the seal of our said Court of Common Pleas, this 8th day of December, 1841, Á. B., Deputy Clerk,is good.
    This is a special action of Trespass on the ca.se, reserved in Holmes County.
    The facts are these: An execution called a fieri facias issued from the Court of Common Pleas of Stark county, to the sheriff of Holmes, in favor of the plaintiff, against John Davidson et al. This writ of execution bore test in these words:
    “Witness my signature and the seal of our said Court of ‘ Common Pleas, this 8th day of Dec. 1841.
    “ Alpheus Brown, Deputy Clerk.”
    This writ of fieri facias was received by the sheriff of Holmes county on the 15th day of December, 1841, and on the 17th day of January, 1842, he made return:
    “No goods, chattels, lands or tenements whereon to levy.
    “ Lewellen Allison, Sheriff of Holmes County.”
    The plaintiff, in his declaration, counted against the defendant, as such sheriff, for a false return, as indorsed upon the fieri facias. The defendant plead not guilty, and the case being submitted to a jury, on the last circuit in Holmes county, the plaintiff, to maintain the issue on his part, offered in evidence the execution on which the above return was indorsed, in order to lay the foundation for the introduction of proof to falsify the return so made by the sheriff.
    This evidence was objected to by the defendant, for the reason that the fieri facias was not tested as the law required. The Court sustained the objection and nonsuited the plaintiff, who filed a motion to set the nonsuit aside and grant a new trial. This motion was reserved for decision in this Court.

      II. B. Hurlbut, for the Plaintiff, in support of the motion. ’ ’ll

      Hoagland and Sapp &/■ Wilkes, contra.
   Wood, C. J.

The question presented is, whether the Supreme Court erred, on the trial of the case at bar, in rejecting the fieri facias when offered by the plaintiff in evidence to the jury. If so, a new trial must, of course, be granted. The question is of the highest importance, for the reason that the practice, in many counties in the State, has prevailed to test both mesne and final process in the name of the deputy, and not of the clerk. The evils arising from a mistake in the test of mesne process, it is true, would not, ordinarily, be great, because, upon its return, a motion to quash would lie, or an appearance and plea to the action, without objection to the process, though void, would cure the defect. But iffinal process is void, it follows that the sheriff, and all who aid and assist him in the sale of personal property under it, are trespassers, and, as such, liable to an action. This is not all. Titles to real property acquired under a void execution are of no validity, and subsequent bona fide purchasers are affected by the want of authority in the sheriff to make the sale, until the statute of limitations steps in and quiets the title. To avoid these consequences, a construction must be given to the statute directly in opposition to its letter; but, if its spirit be. retained, we keep within the line of duty assigned to the: Court, and produce a most desirable result.

Writs, both mesne and final, until the first of April, 1837, were tested in the name of the President Judge, if issued from the Court of Common Pleas. After that date, the statute requires they “ shall bear test and be signed by the clerk of the Court issuing the same.” The reasons for this change in the law are obvious: Circuits were composed of several counties, and the clerks had not the means at hand of knowing when the official term of a President Judge expired, and it not unfrequently happened that process bore test in the name of a Judge who was functus officio, qr whose commission had not taken effect. To get rid of these dificulties, this statute was passed; Swan’s Stat. 690, sec. 1. If this was the only provision, there would be no escape from the conclusion, that all process so tested was absolutely void. But the act of February 17, 1831, enacts: That the clerks of the Supreme Court c and Court of Common Pleas may each appoint a deputy, to ‘ be approved and sworn,” &c., and “ when so qualified, the deputy may do and perform any and all of the duties apper{taining to the office of his principal.” Swan’s Stat. 284.

This act was passed, it is true, several years before the' one which makes the change in the test of process, and though the latter act makes no mention of deputy clerk, we cannot think it was the intention, in the language used, to restrain the deputy in the performance of any such simple duty. He might, before the act of 1837, test all process in the name of the President Judge, and no reason is now perceived why he may not, in the name of his principal, or even in his own name. He is the clerk, in fact, for what the clerk does by him, he does by himself.'

A new trial must be granted, with costs, to abide the event of the suit.


text:
    Constant F. Minns vs. Morse, Dodge and Willey.
    A parol contract to convey land, and delivery of possession undér it, is not void, but voidable 5 and, if executed afterwards in good faith, the title of the vendee cannot be defeated by a judgment against 'the vendor, rendered after the making of the contract, and before the execution of a conveyance in fulfillment of the agreement.
    Such voluntary conveyance vests a legal title, coupled with an elder equity, in the grantee.
    This is a Bill in Chancery, reserved in Cuyahoga County.
    The bill sets forth that, on the first of January, 1836, James S. Clark and John W. Willey, then the owners of lot No. 99, in Cleveland, contracted to sell the same to one C. Hunt, who took possession, made valuable improvements thereon, and occupied till January 1, 1839, when the contract was assigned to Charles N. Willey, in trust for Clark & Willey; that, on the 21st March, 1839, C. & W. conveyed the legal title to C. N. Willey, also in trust, without personal interest, and subject to the control and disposal of Clark & Willey; that, on the 17th day of April, 1839, Clark & Willey entered into a parol agreement with complainant, to procure a conveyance from their trustee to him, in discharge of a debt of $ 1,000, which they then owed to the firm of Myers & Minns, and also in discharge of $1,329.31, which they assumed to pay them on account of Sanford & Lot; that, under this contract, possession was delivered immediately, and, on the 27th day of May, the contract was fully executed by a delivery of a deed in fee to complainant, for the use of Myers & Minns — C. N. Willey making the conveyance without consideration, at the request of Clark & Willey, and in the execution of his trust; that Myers conveyed by deed of warranty to complainant, on the 14th of August, 1839, who has since occupied and improved the premises; that Morse & Dodge, on the 30th of April, 1839, recovered a judgment for $545, against C. N. Willey, and, in January, 1843, caused an execution to be issued and levied on th^otNiT'eontroversy, which they had caused to be sold, and had purchased in, but which sale had not been confirmed.
    In Bank.
    Dec. Term 1846.
    The bill further sets forth, that C. N. Willey had other real estate upon which the judgment of Morse & Dodge operates as a lien, and that he is a certificated bankrupt, and prays that the levy, and all proceedings against this land, may be perpetually enjoined, and the title of complainant quieted. The defendant, Morse, answers, admitting some of the minor facts, but denying the trust in C. N. Willey, and putting complainant to the proof of the material allegations of the bill. It also sets up some new facts, which will be noticed hereafter. To this answer there was a replication. Proof has been taken, by both parties, to substantiate the material allegations of the bill and answer.

      Hitchcock, Willson if Wade, for Complainant.

      Allen if Stetson, for Defendant Morse.
   Birchard, J.

The only question litigated is, which has the better title in equity. Morse & Dodge recovered, at the same time, judgments against Clark & Willey for the same debt, they being principals and C. N. Willey the surety. The judgment against C. N. Willey only, has been levied on lot 99. Clark & Willey were much embarrassed, and the transfer to C. N. Willey, by Clark & Willey, was made to enable them to convey the real estate in payment of their debts, discharged of all judgment liens. J. W. Willey djed insolvent, and Clark is insolvent. It is not claimed they had any fraudulent intention in making or promising to be made any of these transfers; but it is admitted they had not, and such is the proof.

The conveyances to C. N. Willey, being without consideration, are claimed to have been void as against creditors; and Morse & Dodge, having obtained judgments against both the trustee and cestui que trust, insist that they had a right to pursue the property on the judgment against either. This position is one to which we readily yield our assent. It brings us to a consideration of the effect of the parol agreement, and the deed executed in fulfillment of it.

The statute for the prevention of frauds and perjuries, has not been brought forward, by way of plea or answer, to defeat the parol agreement. It is, however, relied upon in argument as a defence. • It may be admitted here, that on a bill against Clark & Willey, for specific performance, filed by Myers & Minns, of the daté of Morse & Dodge’s judgment, a defence, presented in proper form, under the statute, might have been sustained. Then there had been no such part performance as would have required a decree of specific performance, to prevent the statute against fraud from becoming an instrument in aid of a fraud. Nothing had then been done under the contract but delivery of possession. The authorities cited by defendants’ counsel, fully sustain this position. From this, however, it does not necessarily follow that no equity was thereby acquired. The fifth section of the act only forbids the maintenance of an action to enforce the parol contract. It does not purport that it shall be absolutely void. By implication it admits, that as between the parties, the parol contract may give rise to equities as binding upon the conscience as if the same were evidenced by writing. It was created as a rule which public policy required. It was in this view that courts of equity, instead of holding such contracts absolutely void, have sometimes sustained and enforced them, in cases where the contract has been admitted in the answer, and the defence arising from the statute waived, by a neglect to rely upon it. Wood v. Dille, 11 Ohio Rep. 455; 2 Story Eq. 57; 8 New Hamp. Rep. 9; 3 Vesey, Jr. 39, n.

In such cases, the parol contract is the basis of the decree, as it is also in all instances where part performance takes the contract out of the operation of the statute. Hence it. would seem to follow that the parol contract to convey was voidable only, and was binding upon the conscience; and if admitted and affirmed in answer, would and must have been enforced by decree against Clark & Willey, at the date of respondent’s judgment. They, therefore, in procuring the conveyance, only did voluntarily what a court of equity, upon their own confession, would have forced from them. Shall the act thus done in good faith, in performance of a moral duty arising from an express agreement, when executed, be less efficient than a judicial decree? Shall the equity thus created and perfected yield to the force of an intervening judgment lien, which only operated upon such interest as remained in the contracting party, after entering into the agreement ?

In equity, that is considered as done which the parties have agreed to do, and which they ought to have done. Clark & Willey could not, as honest men, refuse a conveyance of lot 99, at any time after April 17th. They had then placed Minns in possession of the premises. They sought not the aid of the statute of frauds and perjuries to enable them to perpetuate a fraud, to violate their promise ; and we will not permit the defendants to say that the law violates it for them, by urging a defence that they never made, and which they could not make as honest men.

Now, what interest had the judgment debtors in this land at the date of the judgment, upon which it operated as a lien ? The answer is, a legal title, subject to a parol contract, partly executed, which the parties had a right, and in conscience were bound to execute, but could not be compelled to act involuntarily in the matter. In acting freely and without fraud; they fulfilled their contract by transferring the legal title, and perfecting and establishing the original equity. The consequence is that the complainant has the elder equity, and the legal title and the junior judgment lien, which was contingent, depending upon the good or bad faith of Clark and Willey, must yield.

Decree for Complainant.