
    *Alexander Duke v. William S. Thompson and others.
    While the legal title to land remains in the government, the statute of limitations does not run against one who holds a certificate of survey or of purchase.
    The assignment of a land-warrant or certificate of survey, in the Virginia military district, may he presumed in favor of a person in possession of land in said district, from great lapse of time, in connection with evidence of payment made by the person in possession, or those under whom he claims, to the rightful owner.
    This is a bill in chancery, reserved in the county of Hamilton.
    The bill sots forth that the complainant, and one Nathaniel Massie, were entitled to 400 acres of land, as tenants in common, lying in the county of Hamilton, on the east fork of the Little Miami, between the Miami and Scioto rivers, surveyed in the names of William Fowler and Nathaniel Wilson, on September 11, 1792—■ being No. 2,208—200 acres of which wore assigned by said Wilson to James Duke, who assigned the same to complainant. The remaining 200 acres were assigned by said Fowler to said Massie, in his lifetime. That the same was'granted to the complainant and the legal heirs and representatives of the said Massie, by patent, bearing date August 30,1841, as tenants in common, by the boundaries set forth in the bill. The complainant charges that he is the owner of a moiety of said 400 acres, and'makes defendants the heirs of Nathaniel Massie and certain others in possession of the property. He calls lor answers under oath; and asks that the defendants may set forth their respective titles, and prays a partition of said 400 acres ; and that one moiety thereof may be set apart to him, or that the land may be sold and the proceeds divided.
    The heirs of Massie, and several other defendants, have answered and disclaim all interest.
    Those defendants who have not disclaimed, have answered *and claim title to the lands in controversy, in separate and distinct parcels, under two conveyances from Nathaniel Massie; the first of which was made by said Massie to Jacob Wickorsham, on April 2, 1796, covering 200 acres; and the second, to Ichabod B. Miller, bearing date December 5, 1799.
    These deeds of conveyance contain covenants of warranty ; and were executed, as defendants claim, while Massie was in possession of the land. They insist that they, and those under whom they claim, have been in possession more than fifty years; and that they are protected by the statute of limitations and by lapse of time. They further claim that Nathaniel Massie was justly and equitably entitled to the survey in controversy.
    To these answers replications wore filed and testimony has been taken.
    M. Marshall, for complainant:
    The statute of limitations does not apply in this case. No action at law or equity could have been maintained upon an entry and survey in the Virginia military district, until a patent had been issued and a title passed from the government to the complainant, or some person claiming adversely. May’s Heirs v. Hill, 5 Litt. 313; Stewart v. Jackson, 1 Marsh. 59; Brescoe v. Prewett, 4 Bibb, 370; Hart’s Heirs v. Young, 3 J. J. Marsh. 415; Dresback v. McArthur, 7 Ohio, 146, pt. 1; Fowke v. Darnall, 3 Litt. 318; Stewart’s Lessee v. Mason, 3 Har. & Johns. 531.
    The complainant contends, also, that no limitation or lapse of time can operate so as to affect title to land whilst.it remains in the government. Harbock v. Jackson, 1 Comst. 135; Hart’s Heirs v. Young, 3 J. J. Marsh. 415; Wallace v. Miner, 7 Ohio, 252, pt. 1 ; Cincinnati v. First Presbyterian Church, 8 Ohio, 298; Chiles v. Colk, 4 Bibb, 554; Brescoe v. Prewett, 4 Bibb, 370 ; Kemp v. Commonwealth, 1 Hen. & Munf. 85; Amos’ Heirs v. Commonwealth, Ib. 67; Stoughton v. Baker, 4 Mass. *528; Johnston v. Ir-wine, 3 Serg. & Rawle, 292; Allard v. Labank, 3 Martin, 294; United States v. Hoar, 2 Mason, 312; Ward v. Bartholomew, 6 Pick. 409 ; Hill v. Dyer, 3 Greenl. 441; Johnson v. McIntosh, 8 Wheat. 571.
    Lapse-of time is not sufficient to authorize the court to presume a transfer of title from the complainant to the occupant. Wallace v. Miner, and Dresback v. McArthur, above cited; and Lessee of Stark v. Smith, 5 Ohio, 455.
    Storer & Gwynne, Charles Fox, and William M. Corry, for defendants.
    It is contended the defendants have the equitable title, which is a sufficient defense to a partition suit.
    We insist, in this case, that it must be presumed that the right and title of James Howard, as well as that of William Fowler, was sold to Nathaniel Massie.
    What are the prominent facts of the case? As Ion# ago as the year 1796, Nathaniel Massie assumed to be the owner of the property in question, and conveyed the same to various purchasers. The conveyances were recorded; the property was built upon and improved at once, so that any person having an adversé interest in the land would have forthwith presented his claim. The interest of Howard might have passed by a mere assignment or contract in writing, or even by a verbal contract acted upon.
    It was not until" 1841 that the plaintiff, claiming to be the assignee of Howard, presents his claim; and he then goes to Nathaniel Massie’s representative for the papers, and finds them in liis possession, which strengthens our proposition that Nathaniel Massie, before he made the conveyances as owner of the entire tract, had purchased Howard’s interest, as well as that of Fowler.
    The bill states—but there is no proof of the fact—that the tract was surveyed September 11,1792, in the names of William Fowler and N, Wilson. The patent is for services performed by William Fowler and James Howard; and it is admitted that the patent was procured without any statement *that the possession had been adverse to the claimant for fifty years.
    We contend that it must be presumed that we have the equitable title by virtue of some contract or assignment of the interests of Howard and Fowler.
    An equitable title is a sufficient defense to a partition suit. German v. Maclain, 6 Paige, 289 : “ Where a bill in chancery is filed for the partition of land, of which the complainant is a tenant in common of the legal title, the defendant may set up in his answer, as a defense to the suit, an equitable title in himself to the whole premises.”
    This defense we have set up in the answer; and in addition thereto, we say that the plaintiff’s legal title is doubtful, and that he must first establish the same at law.
    Our equitable title must prevail on either of three grounds :
    I. The assignment of the equitable title is to be presumed from the long adverse possession of improved lands under recorded deeds,—and this independently of the analogy of the statute of limitations.
    II. According to complainant’s own showing his equitable claim,, as assignee of Nathaniel Wilson, is barred by analogy to the statute of limitations ; for if it had been a legal estate, it would have been barred—complainant having taken the assignment in 1811 from his father, and successive disabilities not being allowed. The loss of the equitable title by complainant, in a suit for partition, is fatal.
    III. According to complainant’s own showing, and the weight of all the evidence, an assignment of James Duke’s interest to Nathaniel Massie, is an inference of fact; for the latter had the assignment of Nathaniel Wilson to James Duke, and complainant knew nothing about the assignment, or the property itself, till 1838. To say nothing of the mass of corroborating testimony; this fact, coupled with the facts that Massie convoyed as owner in 1796, and that his grantees held quietly in 1841, makes the strongest case for an inference that the equitable inter'est was assigned to Massie, or his grantees. And this conclusion arises from the facts *alone, independent of any legal presumption derived from the analogy of the statute of limitations, and whether suoh analogy exists or not.
    1. We have the equitable title upon the presumption of an assignment from our long possession of improved lands, under recorded deed; and this independently of the analogy of the statute of limitations; consequently, a court of equity will not entertain complainant’s claim in a chancery suit.
    We do not ask the court to make any violent presumption in favor of our ancient possession, but only to presume the existence of some contract or assignment, which, in all human probability, took place between the proper parties.
    As observed in 2 Phil, on Ev. 364: “ It is to be collected from these cases, that on possession and great lapse of time, and all other things, being regularly made out in proof, the title shall not fail for any single item—that is, assignments, etc., are presumed to perfect the chain of the title.” ......
    “ Presumption is often resorted to, for the purpose of supplying defective evidence, and in this country is not oftener applied to any subject than to supply defective title to lands. It would be difficult to make out the titles to many of the older tracts of land in this state, by a regular deduction of title deeds from the patentees down to the present proprietors, without resorting in some stage of them to presumption.
    “ In general, these presumptions are bottomed upon the existence of certain facts, which can leave but little doubt upon the mind of the truth of the fact which we are called upon to presume. They frequently, too, derive their force and efficacy from that vigilance with which the law guards ancient possessions which, sooner than they should be disturbed, presumes that they had in contract a rightful commencement.” See Archer, J., in Beall’s Lessee v. Lynn, 6 Har. & Johns. (Md.) 361.
    It is admitted that, generally speaking, no presumption of *a grant will be made of a legal estate, within the period proscribed by the statute of limitations, when the presumption is asked for on the mere ground of possession ; for that would be to make a limitation different from the one prescribed by the legislature.
    Where the statute of limitations does not apply, as in the case of long possession .of incorporeal hereditaments, a grant will be presumed, after the time limited by the statute applicable to corporeal hereditaments has expired. This is by the recognized analogy governing courts of law.
    And courts of equity will presume the assignment of equitable rights, after the period has elapsed which would be allowed for the enforcement of the claim,.if it were a legal one. Thus, if the complainant in this case had, instead of getting the patent, filed a bill in chancery, to obtain possession of the land in question, on the ground that Howard’s interest had been assigned to complainant’s father, and by him to complainant, the bill would have been dismissed; for the court would have presumed a transfer of Howard’s interest from his assignee to Massie or his grantees. And the court should, in the present ease, presume such surrender; for the fact of complainant’s having obtained the patent makes no difference,' so far as the equitable title is concerned.
    The rule in equity is, that a presumption arises that an equitable estate has been released, where a legal estate would have been barred.
    2 Phil. Ev. 334 : “ The above Kentucky cases, and others, may be regarded as establishing the general position that adverse possession is equally a .bar to an equitable as of a legal claim for land.” Per Marshall, C. J., in Hunt v. Wickliffe, 2 Pet. 201, 212 ; Peyton v. Steth, 5 Pet. 485.
    In some cases an equitable estate will be presumed to have been released, although if it had been a legal estate it would not havo been barred by the statute of limitations (Story’s Equity, 529, 530).—as in cases where the demand is very stale, or there has been gross laches.
    The general rule, however, is, that the presumptive bar of *an equitable estate may be avoided by the same disabilities in the claimant, which are admissible, at law, as infancy, absence, etc. 2 Phil. Ev. 335.
    Story’s Ev. Plead. 624: “After a great lapse of time, courts of equity will raise a presumption of some legal or equitable extinguishment of the adverse title, if the circumstances of the case will enable them to support it.”
    Complainant says he took an assignment of his father in 1809. If that were so, why was nothing done for thirty years afterward ? Here was gross laches according to his own account, which will lead a court of equity to raise a presumption against him.
    2 Pil.'Ev. 302: “Long acquiescence by one in the adverse enjoyment of a right by another, leads to an inference that the former has parted with it in a legal form, and in time may lead to the presumption of the necessary instruments of assurance.”
    We do not say, that the act of limitations is a bar to the legal title of complainant (if he has such titlo) under the patent. See 2 Phil. Ev. 350; Lessee of Wallace v. Miner, 6 Ohio, 366; S. C., 6 Ohio, 249; Tillinghast’s Adams on Eject. 77. Neither do we say that it can bo presumed that a patent was granted to our ancestor, for it can not be presumed that the government have granted two patents for the same land. See 2 Phil. Ev. 354, 359, 297; 6 Ohio, 366; 7 Ohio, 249; Woodson v. Buford, 7 Monr. 418; 2 Phil. Ev. 297. But we do say that the equitable title of Wilson, under the assignment to him of the land warrant, must be presumed to have passed to the parties in possession.
    If the court should decide that the patent is not void on its very face, we do not say that we have now evidence enough to warrant the court in pronouncing that the patent is of no legal validity. But the legal title may bo in complainant, and the equitable title in defendant, by reason of the presumption in equity, that there has been an assigment of the right of Howard to Nathaniel Massie.
    The case of McArthur v. Gallager, 8 Ohio, 518, is strikingly *in point against complainant’s title. There the court presumed an assignment of a land warrant, and held that an assignment might be by parol. It was an ejectment case. In that case the court say, page 518. “It must be remembered, that no particular mode of assigning military land warrants was proscribed by law. It might bo done by an indorsement upon the warrant itself, or on a separate paper. Nor was there anything in the law requiring it to be done even in writing. Courts will, under circumstances sufficiently strong, presume a grant, or a deed, and there is no impropriety, in a proper case made, in presuming the assignment; and such presumption was made, in the case of Bouldin v. Massie’s Heirs, 7 Wheat. 122, and in that case the subject is very fully and at large discussed.” The court say: “ Eor a period of more than twenty years we do not find Trezvant, the original owner of this warrant, making an inquiry after his warrant, or the land. Is it thus that a man having a claim to 6,000 acres of land, like that in the military district, usually conducts with respect to it; or, rather, is it thus that a man usually neglects attending to his rights and his property? Trezvant was not in a foreign country—he was a resident of the adjoining State of Virginia.” The court then say, that even in 1814 Trezvant did not inquire after this land. But he makes an assignment of the warrant—not upon the warrant itself, for that was in the surveyor’s office. The assignee does nothing for ten years, and then witnesses acquainted with the transaction are dead. The court, therefore, presumed an assignment.
    Ours is a stronger case for the presumption. For nearly fifty years instead of twenty, the alleged owners of the warrant made no inquiry about the land, and they were residents of the adjoining states. If they had been in France the presumption of an assignment would not have been so strong. Besides, the assignment to complainant made thirty years ago was not on the original papers, for Massie had them. *Here the legal title remained in the state, but the property was transferred from hand to hand—was occupied by many individuals, successively, claiming as owners; they have improved the property; and the irresistible presumption is that the possession has been lawful—that the parties entitled to the equitable interest have transferred it.
    If the legal title had not been in the state, but had been in Howard, Wilson, complainant’s father, and complainant, it would be barred by the statute of limitations. Now Howard, Wilson, complainant’s father, and complainant, had not the legal estate, but it is pretended that they all had the equitable title, the beneficial title. If that were so, we should be entitled to ask the court to presume a transfer of the equitable estates, seeing that after the expiration of the pei’iod allowed by the statute of limitations, if the estate had been a legal, instead of an equitable one, it would have been extinguished by the statute. And just as a grant of incorporeal hereditaments would be presumed in favor of the possessor thereof a groat number of years.
    The simple question is, whether a devolution of the equitable title is not to be presumed, just as a devolution of tho legal title would have been under the same circumstances.
    A grant of tho legal title is presumed in favor of the possessor of land, even when such possession has been less than twenty-one years, if there be circumstantial evidence in addition to the possession. But the presumption is not made from the mere naked possession, for a shorter term than that provided for by the statute of limitations.
    Here we will notice the case of Starke’s Lessee v. Smith, 5 Ohio, 455, a case at law. John Starke obtained a patent in 1803: thirty years áfterward his heirs brought ejectment against Smith, who, in 1800, purchased John Starke’s warrants. In 1801 Smith took possession of the land, and had since remained in possession. Tho statute of limitations did not apply, as Starke and plaintiff resided out of the state; and the court refused to presume a conveyance. This was correct, as the claim was a legal one; and the *heir’s title was not barred by that act,—a question which is considered under the next head of this discussion. The defendant’s remedy was in equity, where he might have compelled a conveyance to himself of the legal estate. The defendant’s equitable title was not disputed. The court say that the rule of presumption does not apply to corporeal rights; and yet they admit that the evidence of title may be made out with length of possession and other circumstances. The fact is, that assignments and surrenders of terms in corporeal hereditaments are constantly presumed. But we need not trouble ourselves further with this question, for our proposition is, that as Howard’s title would, if it had been a legal one, have been barred by the statute, it must, being an equitable one, be presumed to have been transferred.
    2. According to the complainant’s own showing, his equitable title, as assignee of Nathaniel Wilson, is barred by analogy to the statute of limitation; for, if it had been a legal estate, it would have been barred, complainant having taken the assignment in 1811 from his father, and snccessive disabilities not being allowed. The loss of the equitable title by complainant, in partition, is fatal to his recovery.
    The complainant’s title, if a legal one, would be barred. He took the assignment in 1809; and he filed his bill in 1842. The assignee died eighteen years before the bill was filed; viz., in 1824 or 1825, according to the answer to our interrogatories, and the deposition of Basil Duke.
    Successive disabilities are not allowed. If the owner of an estate, living abroad, be disseized, his heir after his death is not entitled to the privilege of the proviso in the statute of limitations, although he, the heir, live abroad. Lessee of Whitney and others v. Webb & Westerhaven, 10 Ohio, 513.
    ■ The reason is, that the proviso in favor of persons abroad is to be confined to him to whom the right first accrues, although the word “first” is omitted in the statute of Ohio.
    *The decision in this case is that the disability of “ beyond seas,” in the act of limitations, is removed by death ; and the heir, whether under disability or not, is barred of his ejectment, unless he sues within the time limited by the statute. It is said the heir has twenty-one years after his ancestor’s death. But a purchaser is not allowed twenty-one years after the grantee’s death, nor eighteen years. In the preseqt c^se the equitable claim, has not passed by descent; it has been assigned; and we insist that if the owner of an estate, living abroad, be disseized, the privilege contained in the proviso of the statute, is personal to him, and does not pass to his grantee ; for he is not the person to whom the right of action “ first ” accrued. If every grantee of the person to whom the right of action accrues, during disability, were to be entitled to the benefit of the proviso, there might be successive disabilities for several centuries, and when the title came ultimately to bo tried, the evidence on which the defendant’s title was founded, would be lost in obscurity.
    It is true that cases may be found where this objection has not been taken; but, as observed by the court ip 10 Ohio, 513, “it frequently happens that principles the most firmly established, entirely elude observation until some startling controversy springs up, which rouses the mind to a survey of the whole field of dispute.”
    Our proposition then is, that if the complainant’s claim, as assignee of Wilson, had been a claim on which an action of ejectment could have been sustained, it would have been barred by the statute. That'being so, the equitable claim is barred by analogy. It follows, therefore, that oven if complainant has the legal estate by virtue of the patent, our defense to this partition suit is impregnable; for we have the equitable estate by legal analogy.
    According to complainant’s own statement, his father held the equitable right until 1809, when he assigned it to complainant—. that being so, the right first accrued to complainant’s father, who is dead; and if the estate had been a legal one, complainant must have prosecuted it many years ago, for at this day the action would be barred.
    *It is immaterial to us whether the heir of a party abroad is allowed twenty-one years after the death of his ancestor or not" Complainant took the assignment in 1809; and if it had been a legal title, he would be barred after his father’s death; and he is therefore barred by analogy in equity.
    It is not necessary that James Duke should have been dead twenty-one years before the filing of the bill. Ho was dead a little less than twenty-one years. Even if twenty-one years had not expired since the assignment, there would have been a bar, if the assignor himself were dead, and his right accrued more than twenty-one years ago. A purchaser will be in no better position than his vendor; and when the time has begun to run, it does not stop. This is so even if the heir, being under disability, is allowed twenty-one years after the death of his ancestor. On this latter point, see decision of court in bank in 1845. Carey v. Robinson, 13 Ohio, 181. Here were three successive disabilities in different persons, and two of the parties have died, disseized. Wilson assigned to James Duke. Both are dead many years—Duke over eighteen years. Massie conveyed as owner in 1796, and the estate of his grantees is protected by analogy to the statute.
    3. According to the weight of all the evidence, and this complainant’s own showing, an assignment of James Duke’s interest to N. Massie is an inference of fact; for the latter had the assignment from Nat. Wilson to James Duke, and complainant knew nothing about the assignment, nor the property itself, till 1838. To say nothing of the mass of corroborating testimony, this fact, coupled with the further fact that N. Massie conveyed as owner in 1796, and that his grantees held quietly till 1841, makos the strongest case for an inference that the equitable interest was as-sighed to Massie, or his grantees. And this conclusion arises from the facts above stated, independent of any legal presumption derived from the analogy of the statute of limitations, or whether such analogy exist or not.
    As this point is discussed in the opinion of the court, where %11 the facts of the case are elaborately examined, the argument of counsel thereon is omitted.
   Hitchcock, J.

The complainant introduces in evidence, in this case, a patent bearing date August 30, 1841, by which the land sought to be divided was granted to himself and the heirs of Nathaniel Massie; and upon this evidence he claims the legal title to the land, and that it is his right to have the same partitioned, as prayed for in the bill. There being no evidence to prove that this land had been previously granted by the government, it must be held that by this patent the legal title to a moiety of this survey was vested in the complainant as tenant in common with the heirs of Massie; or rather with the defendants, who claim under Massie, by deeds of warranty. Whether the proofs upon which this grant was made, were such as would have satisfied this court that the complainant was entitled to the land, is not a subject for our consideration, and can make no difference in the case. The proper officers of the government were satisfied, and the patent was accordingly made. It conferred the legal title; and the complainant must have partition, unless some of the grounds of defense relied upon by the defendants can avail to defeat his claim.

The first ground of defense is that the defendants, and those under whom they claim, have been in possession of this land more than twenty-one years, under claim of title. That this possession has been open, notorious, exclusive, and adverse to the complainant, and therefore that his rights are barred by the statute of limitations. The proofs in the case show that survey No. 2,204, including the land in controversy, was made by Nathaniel Massic as early as September, 1792; and that the papers connected with it remained in hi3 hands until his death. One-half of the survey was assigned to him, and the other half to James Duke. According to the testimony before the coart, James Duke, in 1809, assigned his interest to the complainant, Alexander Duke. James Duke was a resident in Maryland, and seems never *to have been in the State of Ohio. Massie, in 1794, conveyed the one-half of this survey to Wickersham, and the other half to Miller, in 1799. Wiekersham and Miller took possession of their shares immediately after their respective purchases; and they, and those claiming under them, have been in possession ever since. Here, then, has been an adverse possession of one-half of this land, of fifty-three years; and of the other half, of forty-eight years.

But it is insisted by the complainant that neither James Duke, under whom he claims, nor himself, was ever within the State of Ohio until a short time before the patent was issued, and that therefore the statute can not operate against him. The adverse possession commenced during the lifetime of James Duke. If he died more than twenty-one years before the filing of the bill, the statute beginning to run at his death, would, if there were no other difficulty in the way, operate as a bar. But the fact is that statute did not begin to run until 1841. Until that time the title of the land remained in the government, and the principle is well Bettled that the statute of limitations does not run against the government. Although, then, these defendants have been so long in possession of this land, they can not be protected by this statute.

The next ground of defense is, that this is a stale claim, and that the complainant is barred by lapse of time. To this defense the same objection, perhaps, applies as to that last considered. It was not until 1841 that the complainant could prosecute this claim, and since that period the lapse of time has not been so great that the court can with propriety say that the demand is a stale one, according to the common acceptation of the - term. In this case, 1 owever, it is not necessary to decide this point.

The last ground of defense relied upon by the defendant is, that Massie was justly entitled to, or had g,n equitable interest in, the whole survey. This is a point of more difficulty. If the fact be so,—if, in equity, Massie was invested with an equitable interest in the entire survey,—it must be a *good defense for these defendants. Had the complainant presented himself before a court of law in an action of ejectment, this defense could not have been made. In such case the legal title must prevail. But he is in a court of equity, and, although he has the legal title, yet if the defendants have a perfect equity in the land, he holds that legal title in trust for them. He is the trustee—they the cestuis que trust. And I apprehend that, under such circumstances, a trustee can not claim that the trust property shall be divided between himself and his cestuis que trust.

In order to sustain this point of defense the defendants insist that the circumstances disclosed in evidence are such that the court must presume that Alexander Duke transferred bis interest in this survey to Nathaniel Massie. If the circumstances are such as necessarily to raise such a presumption, there is no reason in law why it should not prevail. Assignments of warrants, entitling the holder to lands in the Virginia military district, have been presumed, both in the Supreme Court of the United States and of this state, 7 Wheat. 59 ; 8 Ohio, 518.

Whether such presumption can be made, must depend upon the circumstances disclosed in each particular case. The first circumstance relied upon by defendants in this case is, the great lapse of time. The testimony shows that Alexander Duke first became interested in this survey in 1809, by assignment from his father, James Duke. That he first came to Kentucky in the same year, and that since 1811 he has been a resident in Mason county. Mason county, although in the State of Kentucky, is yet in the vicinity of this land. It would seem strange, under such circumstances, that if the complainant had an inchoate interest in this land, he should not have set up a claim to it, or have made any effort to perfect his title for a period of thirty years. But we are not prepared to say that an assingment of the certificate of survey can be presumed from, mere lapse of time.

What other circumstances are there in the case, taken in connection with the lapse of time, and those circumstances ^already named, which would lead us to the conclusion that there must have been an assignment, or- some other transfer, so as to vest the equity in Massie? This depends upon the testimony. This I do not propose to recapitulate, but merely to state facts as they-are disclosed by the proofs.

As before observed, this survey was made by Massie, in 1792. It was made in the name of Fowler and Wilson, claiming as assignees of parts of two different warrants, upon which the entry was based. It is shown that the plat and certificate of survey were delivered to Massie in 1793, and, from anything which appeal’s in the case, remained in his hands until the time of his death, which happened in 1813. Fowler transferred his interest to Massie, and Wilson his interest to James Duke. The date of this latter transfer does not appear. Wilson and James Duke wore brothers-in-law. Before the year 1800, this entire survey had been conveyed by Massie, as before stated, and the purchasers under him took possession. This possession by them, and those claiming under them, has continued and been uninterrupted to the present time.

Two of the brothers and a sister of Alexander Duke swear that their father gave to their brother Alexander all his interest in the survey, in the year 1809. Alexander, by his own oath, confirms this statement. This testimony was furnished to the land-office in Washington, to induce the issuing of the patent, which was finally issued in 1841. But it is now before this court as a part of the evidence in this case.

James'Duke had a brother named Basil Duke residing in Mason county; and, according to the testimony, t,he complainant, Alexander Duke, first came to Kentucky in 1809. It is stated by the witness, Francis Taylor, that in the summer of that year he was residing with his uncle Basil. It is reasonable to infer that the gift or transfer of this survey was made to him by his father previous to his journey to Ohio, and that one object of the journey was to look after this land. There is no evidence in the case that he had any claim to *any other land in Ohio; and both Taylor and a son of the complainant testify that they never heard that ho had any other claim.

Taylor testifies that he placed a warrant in the hands of Massie for 2,666f- acres of land, granted to the representatives of TIonry Field, for services rendered by said Field; to be located, and that for the location Massie was to receive one-fourth. This was done in 1804. One tract of 1,500§ acres was located on the waters of the Little Miami, of which 600 were sold prior to 1809. Massie was entitled to one-fourth of the 900 remaining, amounting to 225 acres. The witness states that he had heard that Alexander Duke claimed land from bis father somewhere, perhaps as a gift or legacy, but that it is so long ago he can not state with certainty ; that he can only relate his impressions, except so far as his memory is assisted by papers in his possession. His impression is, that he purchased lands of Alexander Duke, and that the lands so purchased wore part of the entry of l,500f- acres before spoken of. The witness finds among his papers a receipt signed by Nathaniel Massie at Chillicothe, dated September 6, 1809, of which the following is a copy:

“ Chillicothe, September 6, 1809.

“Received of Mr. Francis Taylor 225 acres of land, being my proportion of the balance of a survey of 1,500 acres, made in the name of the heirs of Henry Field, and patented in the name of said Taylor, for which amount I have entered credit in his bond.

“Nathaniel Massie.”

The witness further states that he had no dealing with General Massie in Chillicothe; that he thinks Alexander Duke brought the receipt to him; that he paid said Duke for the land bought of him, and that he thinks the land so bought was the identical'land mentioned in the receipt; that he considered the receipt as a sufficient voucher for him to account with Massie, and that it was satisfactory evidence to him, to pay for the land to Duke; repeats that he thinks Alexander Duke brought him the receipt; states that he *was well acquainted with Basil Duke, and does not think that in 1809 he had any other nephew in the country than Alexander Duke ; that Alexander was then young and unmarried. The witness further says that his land was situated in what is now Clinton county, was of good quality, and that he knows of no reason why it was not at that time of as much value as land in Hamilton county, unless the same was situated in the immediate vicinity of Cincinnati. The witness also proves the handwriting of Basil Duke to two letters which are also in evidence. Basil Duke is dead.

Prom this testimony it is apparent that Alexander Duke received from Taylor payment for 225 acres of land, which had been the property of Nathaniel Massie. Why was it so? Whence did ho acquire the right to receive this payment?

Let us turn our attention to the two letters, the authenticity of which is proved by Taylor. The first is dated Jaly 15, 1809, and is as follows:

“ Dear Sir : I have been expecting, for some days past, a letter from you, acquainting me with the situation of the laad. I will thank you to write me, stating the neighborhood where the land lies, so that it can be found, as my brother’s son is here and wishes to view it. Also, whether a patent has been obtained, and how the warrants have been disposed of. Your early answer will confer additional obligations on your friend, B. Duke.”

This letter is directed to Gen. Nathaniel Massie, and was answered by Massie, as appears from the second letter of Basil Duke, which is as follows :

“ Washington, September 2, 1809.

“Dear Sir: I received yours by mail. My nephew, to whom my brother has given the land, is willing to take the land spoken of by you in F. Taylor’s survey, in part of tho other land or in whole, if on examination it should be found *equal to the other. When I see you I can explain more fully my meaning: he will abide by any contract made by you and myself, and we can easily settle it when I see you. The object of the present letter is to prove to you that he will take the land, and also to request you to forward to F. Taylor a receipt, stating that you had received a full satisfaction, as locator, for 1,500 acres of land lying on the Miami, that is, to 225 acres, it being the balance of your proportion.

“ Taylor states to me that the original quantity was 1,500 acres, and out of that quantity 600 acres were sold, and that your proportion will be only 225. Taylor has purchased the 225. Expecting you shortly here, 1 shall not be so particular at this time. In much haste, yours, etc. B. Duke.”

Directed as before.

Now, what “ other land ” is here spoken of, for which the 225 acres was to be taken “ in whole ” or “ in part” ? The letter refers to land which had been given by the writer’s brother to his, the writer’s nephew, who was then with him, and that nephew was Alexander Duke. What land had thus been given by the brother to the nephew? The proofs show that it was the one-half of entry and survey No. 2,204 of 400 acres, the identical land now in controversy. Massie having sold and conveyed the land in this survey, and anxious to protect his vendees, had undoubtedly in his letter to which this was an answer, proposed to exchange the 225 acres in the Taylor survey for the 200 in No. 2,204. The proposition was accepted; and before the last-recited letter was written the 225 acres had been sold to Taylor, who withheld payment only until Massio’s receipt could be procured. This receipt was executed on the 6th day of September, four days after the date of the letter, and is by Alexander Duke passed over to Taylor, who thereupon pays him for the land. This all transpired late in the year 1809, and we hear nothing further of any claim *of Alexander Duke to the land in controversy for a period of about thirty years.

Now, under all these circumstances, the question arises, whether an assignment was made by Duke to Massie, or whether such an assignment can be presumed. We are satisfied of this fact, that Massie actually paid for the land. We can come to no other conclusion. TJpon this point the evidence is satisfactory; an assignment ought to have been made unquestionably, and it is not going too far to presume, after this great length of time, that that was done which ought to have been done.

An attempt is made to account for this great delay by the excuse, that the plat and certificate of survey could not be, or wore not discovered until a period but little anterior to the date of the patent. These papers were in the hands of Massie. The complainant, immediately after he became interested in the land, in the year 1809, came to the west, and appears to have been located with his uncle. That uncle forthwith opened a correspondence with Massie upon the subject of the land. That correspondence was continued until the fall of the year, when the 225 acres were sold to Taylor, and from that period we hear nothing further relative to the business. Complainant must have known that Massie was interested in the survey, and might well have supposed that the latter would know something about these papers. He did so suppose, and through his uncle Basil, he applied to Massie for information. This was before the sale to Taylor; after that sale, although Massie lived four years, no further inquiry was made of him. William Creighton, Sen., was appointed administrator upon Massie’s estate, and Massie’s papers came into his hands. It does not appear that the complainant ever made any inquiry of him. In 1820, Cadwallader Wallace was, by the legislature of Ohio, appointed trustee upon Massie’s estate, and superseded Creighton as administrator to a very considerable extent, if not entirely. The papers of Massie were handed over to him, and among those papers were the identical ones upon which *the patent was issued. Wallace has been examined as a witness by the complainant, and states that during the time Massie’s papers remained in his hands, which was a period of ten years, no inquiry was made of him for those papers, and that at the close of his trusteeship, he passed them over to the heirs of Massie. He states further that, from some papers he had seen, but can not tell precisely what, he got the impression that the survey belonged of right to Massie. The papers remained in the hands of Massie’s heirs until 1838, when they were delivered to complainant. Here, then, was a period of twenty-nine years, in which, from anything that appears, no effort was made by the complainant to procure a title to the land. But after that period, Massie being dead, Basil Duke being dead, the claim is resuscitated and a patent at length procured. There is no sufficient apology for this delay. It can be accounted for upon no other presumption than the one assumed by the defendants—that the complainant had parted with his interest.

Upon a full examination of the whole case, we can come to no other conclusion than that, although the legal title is in the complainant, yet that he holds the same in trust for the defendants. The bill must therefore be dismissed at complainant’s cost  