
    Wallace’s Lessee v. Miner.
    Possession of land before patented can not be regarded as adverse to the government, and protected by the statute of limitations.
    Presumptions can not be received to contradict admitted facts.
    Declarations made before the commencement of title under which the party claims, are not evidence in ejectment.
    Becitals are not estoppels, where the deeds containing them are not operative.
    This case was adj'ourned' from the county of Ross. The plaintiff’s title, as offered in evidence on the trial, was as follows :
    1. A patent to the heirs of Powell, by name, dated November 4, 1818, for survey, No. 503, for eight hundred and sixty-five acres.
    2. Deeds from Powell’s heirs to the lessors of the plaintiff, covering the whole land included in the patent, and dated April 15, 1826, the other dated September 17, 1830.
    The defendant was admitted to be in the possession of one hundi’ed acres at the lower end of the survey, to recover which the suit is brought.
    *The defense set up was as follows:
    Powell’s survey, made in October, 1799, and recorded March 17, 1794, and the plat and certificate taken out of the land office by Gen. Massie, in order to get a patent.
    Proof, that Massie was in possession of the whole of Powell’s survey, in 1795, claiming title, and in 1808, conveyed to Abrams by deed of warranty with but one witness, in which the patent is recited.
    
      That possession followed this conveyance, and with the title was regularly submitted to Joseph Kerr.
    Deeds were executed by Abrams to Finley in 1809 (with but one witness), and from Finley to Kerr, in 1814. Each of these deeds contain covenants of warranty.
    In 1816, a judgment was recovei’ed against Kerr, on which execution was sued out aud levied upon the one hundred acres in dispute as Kerr’s property, and in 1829 it was sold on the execution, and conveyed by the sheriff to Miner, the defendant.
    Miner brought ejectment in the Ross common pleas, and Wal-. lace, the lessor of the plaintiff, was admitted to defend. Judgment was recovered by the plaintiff in June, 1831, and Miner put into possession, and has since died.
    A deposition made by the lessor of the plaintiff in a suit ponding in the circuit court of Kentucky, in which the defendant states: that he was acquainted with Massie’s heirs and was acquainted with the title; that Powell sold the survey No. 503 to Orr, and Orr to Massie, for a given sum per acre. That Massie in his lifetime made affidavit and lodged it in the war office, which described the survey as assigned by Orr to Massie. That he, Wallace, believed Massie became owner of the survey by fair purchase from Orr, who bought it from Powell. That Massie, who was fully competent of such matters, gave Orr near four thousand dollars for the survey, and laid out part of the town of Chillicothe upon the land; which he would not have done if he had no evidence of Orr’s title. That in 1817, it first became known, that no patent had issued for the survey No. 503, and Watts had commenced suit against Kerr for the recovery of this land. McArthur made a new entry of one thousand acres upon the disputed land, and wrote to Col. Anderson, the surveyor of the Virginia military district, urging him to an immediate survey of the entry, and Kerr, finding this new enemy in the field, took out a duplicate of Powell’s survey, and from pure friendship received 368] McArthur’s survey from Col. Anderson *to carry it from him; but on his return forgot to deliver it to McArthur, until after he had obtained a patent in the name of Powell’s heirs, and then he congratulated himself upon having driven G-ea. McArthur from the field.
    On this evidence a verdict was taken for the plaintiff, subject to the opinion of the court, upon the law-arising upon the state of ease disclosed.
    T. Scott, for the plaintiff, insisted:
    That the deeds from Massie and Orr being defective, as conveyances, passed no estate to Orr and Kerr, which could be available after the patent issued. 5 Ohio, 190; 1 Marsh. 497, 501. That the legal title does not vest until a patent issues, arid could only be passed from one to another by deed. 1 Ohio, 244, 313; 3 Bibb, 70. Equitable interests in land are not held by the lien of judgments or liable to sale on execution. 1 Ohio, 314-320. Mere intruders are not allowed to question the validity of a patent under which the plaintiff claims. 3 Ohio, 236. Covenants merely pass no legal estate, though certain covenants contained in operative deeds of conveyance, where they pass any interest, estop the grantor from setting up an after-acquired title, and so in effect make it inure to the grantee; but it is essential to this effect that the deed pass some estate. Co. Lit. 45; 3 Bibb, 249, 250. The holder of a new equitable interest, though in possession, can not defend himself against the legal estate. 1 Ohio, 349 ; 2 Ohio, 264. The statute of limitations does not run against the government. 1 Marsh. 506; 4 Bibb, 63, 4, 554; 6 Pet. 672.
    R. Douglas, for the defendant:
    The right of the plaintiff to the possession of the premises is the true question in this action. It is a legal right, and different from a naked equity. 7 Term, 329 ; 1 Bibb, 129 ; 5 Cowen, 200 ; 2 Caines, 335; 6 Pet. 431; 3 Ohio, 59.
    Kerr’s title was a good legal title, and regularly came to the defendant.
    A patent to Powell, and a grant from him to Massie, must be presumed from the lapse of time the property has been adversely held. Both parties claim under Powell, the defendant, through his presumed grantee Massie, and the plaintiff, by conveyance from his heirs at law, the patentees. 1 Pet. 628, 638; *1 [369 Ohio, 395, 398,406, 412; Hardin, 19; Cowp. 102, 215; 3 Stark. Ev. 1201, 1202, 315, 318, 320, 326, 328; 1 Bos. & Pul. 400; 2 Saund. 175, a ; 7 Wheat. 109, 110 ; 2 H. Black. 263 ; 3 Term, 156, 159 ; 1 Ohio, 349; 2 Ken. & M. 370; 6 East, 215 ; 9 Johns. 102 ; 10 Johns.. 377 ; 6 Wheat. 504.
    
      The defendant is protected by the statute of limitations, his adverse possession has continued unbroken for thirty-seven years. This point is too clear for argument. 2 Salk. 421; 1 Ld. Raym. 741; 13 Johns. 40, 513; 1 Ohio, 342-349; 3 Ohio, 59, 254; 1 Burr. 119; 10 Johns. 377; 15 Johns. 159; 1 Wheat. 292, 296. Under a defective conveyance the possession commences at the date of the deed. 18 Johns. 355; 13 Johns. 113; Tit. Adams, 472-482; 5 Johns. Ch. 184; 2 Hen. & Mumf. 318; 1 Bay, 37; 10 Serg. & R. 303; 8 Cow. 589; 9 Cow. 580; 1 Pet. 628.
    Wallace obtained the deed from the heirs by fraud, which makes it void and inoperative as a conveyance. He was trustee of Massie’s heirs, and his purchase for himself inured to their benefit, if not absolutely void. In the ejectment against Kerr, Wallace claimed to be his landlord, and from his privity and connection with the title was admitted to defend. 1 Burr 395, 396, 474; 1 Stran. 664; 3 Ca. Rep. 77 ; Ambl. 436 ; 4 Term, 39 ; 1 Johns. Cas. 436; Peake N. P. 190, 191; Hardin, 36; 2 Bibb, 583; 2 Bibb, 220; 10 Johns. 457-462; 4 Mass. 488 ; 3 Johns. 216; 14 Johns, 493; 6 Pet. 328; 2 Ves. jr. 156; 3 Cow. 537; 6 Hen. & McH. 252, 255 ; 4 Ohio, 232; 1 Blk. 129.
    Wallace’s depositions contain his declarations and acts respecting the title to this land, and are good against him. 17 Johns. 335, 339 ; 4 Johns. 140, 230 ; 4 Pet. 83, 88 ; 3 Ohio, 110, 111; 5 Ohio, 178, 197.
   Judge Wright

delivered the opinion of the court:

The legal title to the land in dispute was granted by the government in 1818, by the patent to Powell’s heirs. The deeds from them transfer it to the lessor of the plaintiff. Since the emanation of the patent, time has not elapsed to protect the defendant in his posessiou. Before 1818, the legal estate was in the government, and no adverse possession could protect persons so holding as to bar the government of its claims. Statutes of limitation, without express provisions, never run against the government.

*It is claimed that from the lapse of time and other circumstances, a grant from the government must be presumed. It is a fact in the case that no patent did ever issue before 1818, and presumptions never obtain against positive facts, though they often supply the want of facts. The patent issued in 1818, and the deposition of Wallace, introduced by the defendant, both prove that no patent had before issued. The presumption, therefore, fails.

Wallace’s declarations made before the patent to Ppwell’s heirs, and his conduct since, while acting as a trustee of Massio’s heirs, it is insisted, are conclusive against the right now set up by him, and acquired under the patent from the heirs of Powell. Neither his declarations nor his conduct, whether it be moral and honest or the reverse, affect his legal title in this court, nor does the fact of his standing in the relation of a trustee to Massie’s heirs. Dishonest^conduct, and that relation may possibly affect him in another tribunal, a court of chancery.

No title passed from Powell to Massie, owing to the defective deeds having but one witness. The recital in Massio’s deeds, and that from Orr claiming under him, therefore, work no estoppel against Wallace, who asserts Powell’s right. He was in law, neither party nor privy to the covenants in those deeds. 5 Ohio, 190. If the covenants had been inoperative deeds of conveyance, the case would have been otherwise, they would have then run with the land, and been an estoppel to the grantors in them and those deriving title under them.

It seems to us, the law arising upon the verdict is with the plaintiff, and we must so apply it, though we dislike the appearance of the transaction, his trustee relation to the subject, and subsequent purchase.

At a subsequent period of the term the entry was opened, and a new argument directed at the next term,upon the following points:

1. Whether the statute of limitations will run to protect the possession of' land in the Yirginia military district, after entry and survey, before patent issued.

2. Whether the patent to Powell’s heirs in 1818, inured to vest the title in Massie and those claiming under him through the defective deeds.  