Page:Federal Reporter, 1st Series, Volume 8.djvu/403

FU8SBLL V. HUGHES. 389 �presumption naturally arising upon the circumstances of the case, require that it should be held to be the deed of Arcliibald Gordon, Sr. On the supposition that it was the deed of his son, and made in the life-time of the father, the same presumption would justify a finding in its support of a previous conveyance from the father to the son. And the recital contained in it that the lands conveyed are "his lands," even in the absence of a covenant of general warranty, would seem to be sufficient to prevent by estoppel the complainant, as the grantor's heir at law, deriving title through him, from now claiming an estate in derogation of that deed. But the contrary was held by the supreme court of Ohio in the case of Hart v. Gregg, 32 Ohio St. 602, which was a suit brought by the heirs of Hart, the grantee in this very deed, against some of the present defendants, for the purpose of recovering a part of the lands in controversy in this suit. It would be anomalous if the defendants in that suit, having Bucceeded in protecting themselves againt the claim of Hart's heirs, on the ground that the deed to their ancestor passed no title, should ■now be permitted to defend themselves against Gordon's heirs on the ground that it passed all her ancestor's title to Hart. In the view I feel compelled to take of the rights of the parties upon other grounds, the determination of the question as to the effect of this deed becomes immaterial. �3. It is evident that the foundation of the complainant's case is in the proposition plainly affirmed in the bills that she is now seized in fee-simple of the equitable estate in said location of land, and entitled to the immediate possession. This proposition is negatived by the defendants, and this is the main contention of the parties. To decide it requires a review of the legislation on the subject, as the question tnrns on the meaning and application of the acts of congress which relate to it. On March 23, 1804, congress passed an act entitled "An act to ascertain the boundary of the lands reserved by the state of Virginia, north-west of the river Ohio, for the satisfaction of her officers and soldiers on continental establishment, and to limit the period for locating the said lands." The second section provides — �" That the ofScera and soldiers, or their legal representatives, who are entitled to bounty lands within the above-mentioned reserved territory, shall complete their locations within three years after thepassingof this act; and every such officer and soldier, or his legal representatives, whose bounty land has or shall have been located within that part of the said territory to which the Indian title has been extiaguished, shall make return of his or their surveys to the secretary of the department of war, within five years after the passing of this act, and shall also exhibit and file with the said secretary, and within the same ��� �