
    ROBERT B. VARDEN, SUSAN McCAULEY, GEORGE McCAULEY, MARY W. SIM, AND JOHN T. SIM vs. WILLIAM B. TODD.
    At Law.
    No. 8170.
    I. Au assignment under the insolvent law in force in this Distriot in 1814 vested the property of the insolvent immediately in the trustee, and the court will not presume, after the lapse of half a century, that his debts were paid without a resort to the property assigned, or that a reconveyance of the property was ever made to the insolvent or to his heirs at law.
    II. Such an assignment is an outstanding title, and a good bar to an action of ejectment brought by the heirs at law of the insolvent.
    STATEMENT OE THE CASE.
    This was an action of ejectment, brought by the heirs at law of Ezra Yarden, to recover certain lots of ground in the city of Washington. From the bill of exceptions, it appears that the plaintiffs gave in evidence at the trial a continuous chain of deeds, showing that the property in question was vested in said Ezra Yarden on the 5th day of July, 1814. Plaintiffs further proved the death of said Ezra Yarden, and that they were his heirs at law. No evidence was offered to prove that the plaintiffs had ever been in possession of the premises, and it was admitted that the defendant was in possession at the time of bringing the suit. On this proof the plaintiff's rested.
    The defendant, for the purpose of showing title out of the plaintiffs, offered in evidence an assignment from Ezra Yarden to Charles Glover, dated on the 5th day of July, 1814, of all his property, real and personal, of every kind and nature, according to the true intent and meaning of the insolvent law for the relief of insolvent debtors then in force in the District of Columbia; and thereupon the defendant rested, claiming that Ezra Yarden, having parted with his title in this insolvent proceeding, and there being no evidence in the ■case of a reconveyance of said property to Yarden or to his heirs at law, the plaintiffs could not recover.
    
      The act for the relief of insolvent debtors in the District of Columbia, passed by Congress March 3, 1803, provided that a debtor, on his own application, by complying with the terms of said law, and finally executing a deed of all his property, real, personal, and mixed, to a person, approved by the court, for the benefit of his creditors, would be discharged from his imprisonment and thereafter relieved forever from the danger of arrest on account of the same debts. The property of the insolvent would then be sold, and the proceeds divided among the creditors in proportion to their respective claims.
    The testimony being closed, the court instructed the jury that, by reason of the last-mentioned conveyance, the title to the said lots, to recover which this action was instituted, was outstanding in the aforesaid Charles Glover, the assignee of the said Ezra Varden, and the said fact was a bar to this action, and that they must find a verdict for the defendant; to which instruction the plaintiffs excepted, and bring the case by appeal to the general term.
    J. J. Johnson and W. B. Webb, for plaintiffs, contended—
    A mortgage is presumed to be satisfied after the lapse of twenty years, unless there has been some action under it or recognition of it within that period. 2 Greenl. on Evidence, p. 466, § 528; Hughes vs. Edwards, 9 Wheaton, 497; Pratt vs. Vattier, 9 Peters, 415. A satisfied mortgage cannot be set up against the plaintiffs in ejectment as a bar to recover. Peltz vs. Clark, 5 Peters, 481; Greenleaf’s Lessees vs. Birth, 6 Peters, 302; McKnight vs. Taylor, 1 How. R., 168. A defendant in ejectment cannot set up a mortgage with which he is nob connected as an outstanding title, so as to defeat a recovery. Wood vs. Hildebrand, 46 Mo., 284; Jackson vs. Hudson, 3 Johnson, 386. Although the assignment of an insolvent debtor passes the legal estate to the assignee, yet a trust results by operation of law, which, as soon as the debts are satisfied, entitles the assignor to the premises against the assignee, and he may maintain ejectment against a stranger. Ross vs. McJunkins, 12 Serg. & Rawle R., 364; Tyler on Ejectment, 174. Wherever the defendant opposes to the plaintiff's title a superior outstanding title in a third person, under whom he does not claim, it must be a subsisting and available title, in which the asserted owner of it might recover in ejectment if he were the lessor of the plaintiff. Lessee of Foster vs. Joice, 3 Washington C. C. Rep., 501; and see, also, note to Robinson vs. Campbell, 3 Wheaton, 224. In the case before the court the defendant asserts an outstanding title in the assignee of Yarden, and it is incumbent on him to show that the title so set up is a subsisting available title. That title if it has any force, derives that force from the provisions of a statute, and a compliance with these provisions must be conclusively shown. It is not enough simply to exhibit the assignment; that assignment must be shown to conform to the requirements of the statute, or the title taken under it cannot be available for any purpose. Hoag vs. Hoag, 8 Tiffany, 473.
    
      Walter S. Cox and John F. Hanna, for defendant, contended—
    
      That the deed from the insolvent absolutely divested him of the title to the property in question and vested the same in Glover, the assignee, and that the title thereby vested was an available one, on which the assignee could recover in ejectment; that title is still outstanding, and therefore the plaintiff cannot recover.
    
    In Maryland, the rule has always been that the plaintiff must negative outstanding title, and show in himself the legal title and the right of possession. Alex. Br. Stat., 455. An outstanding legal title is a bar to recovery in ejectment. Beall et al. vs. Harwood, 2 H. J., 319, (167.) A defendant in ejectment may resist his adversary by any title, either in his own hands or outstanding, that will defeat him. Green vs. Scarlett, 3 Grant’s Cases, (Pa.,) 228.
    Defendant in ejectment may, for the purpose of defeating plaintiff’s recovery, show, even by presumptive evidence, an outstanding title in another, though the defendant be in no way connected with such title. Townsend vs. Downer, 32 Vt., (3 Shaw,) 203; (quoting Schanber vs. Jackson, 2 Wend., 14.) As a general principle, it is sufficient, to defeat a recovery in ejectment, that there is an outstanding title in a third person superior to that of the plaintiff, although the defendant may not be able to connect himself with that title. Rupert vs. Mark, 15 Illinois, 540; Masterson vs. Cheek, 23, ib., 72. In order to maintain ejectment, the legal title is necessary; the equitable title is not sufficient. Leonard vs. Diamond, 31 Md., 536; Smith vs. McCann, 24 How., 398. The holder of an equitable title to land cannot recover it in ejectment, and the grantor of a conveyance in trust to secure payment of debts has merely an equitable title to the premises conveyed. 40 Miss., 793.
   Mr. Justice Olin

delivered the opinion of the court:

This was an action of ejectment, tried at the circuit, brought to recover the possession of lots 1, 12, 13, and 14, in square No. 361, in this city.

The plaintiffs show that their ancestor, Ezra Yarden, had the title to these lots prior to July, 1814, and that they were his heirs at law.

The defendant in possession, for the purpose of showing title out of the plaintiffs, offered iu evidence a deed of assignment of said premises, executed July 5, 1814, to Charles Glover, his heirs and assigns, under and in pursuance of the insolvent law then existing in this District.

Todd, the defendant, gave no evidence tending to show a paper title in himself from Glover, nor did the plaintiff give any to the premises in dispute of possession in themselves or those under whom they claimed since 1814.

Hpon this state of facts Justice MacArthur directed a verdict for defendant. The question arising in the case is, whether this court will not presume, after the lapse of half a century, that the insolvent, Yarden, paid his debts without a resort to the property assigned for that purpose, and that a reconveyance of this property was made to Yarden. From ,©ur experience in reference to the settlement of the estate of insolvents, these presumptions seem to us a little too violent.

The judgment of the circuit must be affirmed.  