
    Lincoln v. French.
    1. The presumption that a trustee performed his duty by reeonveying to' his grantors the title to land, when the conditions became impossible upon which he was to execute the trust declared in their deed, to him, is a disputable one, and may, therefore, be overcome by opposing evidence. •
    2. The outstanding title in the trustee bars ejectment by the grantors.
    ■ Error to the Circuit Court of the United States for the District of California.
    . ■ This was an action for the possession of a tract of land confining three hundred and twenty acres, situated, in the town of Sutter, 'county of Sacramento, and State of California. The complaint 'is in the usual form for the' recovery of land under the system of procedure which obtains in California. As originally filed inNovember, 1866, it embraced thirty-onfe defendants; but by amendments to the, pleadings and other causes the number has since been reduced to seven. Various defences were set up by them, which' it is-not necessary to state to understand the questions to be considered.. It is enough to say that they were sufficient to put in issue,the title of the plaintiff and- his .right of possession r
    The case was first tried in 1867, before a jury, by whom a general verdict was rendered for the defendants; upon which judgment was entered in their favor. .The question on the trial, upon which the ease turned, related to the validity of' a deed of the sheriff of the county, executed to one of the defendants upon a sale of the property for taxes. The Circuit Court held the deed valid, and instructed the jury to find for the defendants. The case being brought • here, the judgment was reversed and the cause remanded for a,new trial, this court holding that the sale was invalid, as the sheriff-had not com formed to the provisions- of-the statute, in that he offered the whole property to the highest bidder instead of selling the smallest quantity which any purchaser would take and pay the judgment rendered for the .taxes and costs. French v.' Edwards, 18 Wall. 506.
    The case was again tried 'in 1872, this time by the court, without the intervention of 'a jury, upon the stipulation of the parties. The court found as facts, that, on the 1st of March, 1862, Robert H. Vance was the owner in fee of the lands in controversy, and'on that day conveyed the same to the plaintiff, Ira G. French; and that, on the 9th ^f January, 186S, French and Vance, with several others, joined'in a deed conyeying the. lands to Edward Martin and Francis E. Lynch, upon trust to. sell the same in lots of such size and for such _ prices as should be directed by' a committee of four persons, or a majority thereof, to be selected in a manner indicated; gnd, immediately, upon the receipt of the proceeds of the sales, to distribute- them in specified proportions, to the several grantors, and to ■ a ceiv tain company, thereafter to be organized, to construct; and maintain a railroad connecting the town of JSutter .with the Sacramento Valley railroad, the portion of this company to be paid when the connecting road was completed. The: deed provided that no conveyance should be made by the trustees until' the road was commenced in good faith, and if it was not built'. within one. year from its date that the deed of trust itself should', be void, unless the iron for the road .should he lost or'detained on its transit; in which.case the road was. to be-.built, wrjbhin two years* _ ?
    
    The court also found as facts that the contemplated company was nevefr incorporated, nor the road commenced ; ■ and .that the defendants, who appeared in the action', were, at its commence-. ment, in the exclusive adverse .possession of the premises; and as conclusions of láw, (1) that the plaintiff, French, acquired .title in fee to the premises in controversy by.the deed from Varice on the 1st of March, 186.2; and (2) that his title was conveyed;by the deed to Martin & Lynch on thé 9th of January, ^L863; and did not revest on failure of the conditions mentioned in the .deed, without a. re-entry for condition broken, or other act manifesting an intention to avoid the deed on that ground, but remained ip the trustees at the commencement óf the action; and that; therefore, the defendants were entitled to judgment in their favor. The casé was again brought to this court (21 Wall. 147), and the judgment was''again reversed, on the ground that a reconveyance from the trustees- to French shoulcl have been presumed, by the court below, from. the lapse of time after the. deed of trust was made, and from the fact that the conditions upon which the trust was to be executed had never arisen, and hád become- impossible.
    . The case was tried á third time, in October, 1878, before the court without a jury. Among other things, the court found the same facts which it found on the second- trial, as to the.execution of the-trust deed to.Martin & Lynch; the non-incorporation of the contemplated railroad company mentioned in it; the non-construction of the road ; and the further fact, that the trustees never executed any/ instrument reconveying or purporting to reconvey to the plaintiff any part -of the premises covered by the trust deed, either before or after this action was commenced. But construing the decision of this court as indicatingithat the presumption of reconveyance, arising from the facts seated/ was indisputable’ and conclusive, it held that the presumption could, no't be overthrown by evidence that ho such reconveyance was-actually exécuted. It'accordingly found that' the title -was "in the plaintiff from the presumed reconveyafice by'the trustees, and judgment was rendered in his favor. To review this judgment the case was again brought to this court. .’ ■
    
      Mr. Jonas Mr Me (Iowan and Mr. John H. Meltune for the plaintiffs ip-error. ' ...
    ■ Mr. Sherman--O. Houghton and- Mr. John Reynolds for the defendant in error.
   Me. Justice Field,

after stating /the case, delivered the opinion of the court.

■ In giving its decision when the case was last here/ this courf was led. into an error in the statement of a fact. It says in its, opinion that the action Was begun in November, 1872, more than eight years after the time' limited-when the trust deed to -Martin & Lynch was tó lose its efficacy,’when, in reality,, it was commenced in November, 1866, less than three years after the,, time mentioned - within which the road was to be completed. .Although the duty to reconvey arose when by the terms.of the trust deed the time had passed within which the-work "was to be done, and the conditions upon-which the trust was to be executed had become impossible, á reconveyance was. to be presumed only in the absence of proof to -the contrary. Like other presumptions, it was sufficient to control the decision of the court if no rebutting testimony was produced. But all presumptions as to matters of fact, • capable of ocular or tangible proof, such as the execution of a deed, are in their nature disputable. No conclusive character attaches to them. They may always be rebutted and overthrown.

. While in its opinion the court, speaking through Mr. Justice Swayne, expressed itself as being clear that the case, as then presented, was one in which a presumption of reconveyance was to be indulged, and quoted,- with approbation, the language of Sir William Grant in such cases, that “ what ought to have been done should be presumed to have beén done,” and that “ when the purpose is answered for which the legal estate is conveyed it ought to be reconveyed,” it added: “ If it had been one of the facts found by the court below that the title was still in the trustees, the case would have presented a different aspect. It is stated only as a conclusion of law arising upon the facts found.” It is plain, therefore, that this court only considered that the conclusion of law of the lower court, that the title was still in the trustees, was not warranted by the facts found, and that the case would have been differently decided had what was thus stated as a conclusion of law been one of those facts. It was not the intention of this court to hold that the presumption was a'conclusive one, not open upon a retrial to rebuttal, because it was considered to properly arise upon the facts then presented by the record. When the case went back upon our decision for further proceedings, — which, this being an action at law, were necessarily those of a new trial, — the fact as to a reconveyance was open to proof, and was not to be taken as conclusively established from the force of the presumption that it had been made. Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear.

The fact having been established, against the presumption mentioned, that the trustees never reconveyed the premises or any part thereof to the plaintiff, the title remains in them, and with it the right of possession. Judgment should, therefore,.have been ordered for the defendants. It follows that the judgment of the Circuit Court must be reversed, and the éáuse be remanded with directions to enter judgment in their favor; and it is

^-So ordéred.  