
    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. < ' ..." . " " ,  