1. A person who for seven years has not been heard of by those
who, had he been alive, would naturally have heard of him is
presumed to be dead, but the law raises no presumption as to the
precise time of his death.
2. The triers of the facts may infer that he died before the
expiration of the seven years if it appears that within that period
he encountered some specific peril or came within the range of some
impending or imminent danger which might reasonably be expected to
destroy life.
3. This Court adopts the construction of the Supreme Court of
North Carolina that the term "beyond the seas," where it occurs in
the statute of limitations of that state, means "without the United
States."
The history of this litigation is substantially as follows:
The land, containing about two hundred acres, the proceeds of
which are involved in this suit was conveyed in the year 1829 for
the consideration of $6,000 by John Teague, its then
Page 97 U. S. 629
owner, to F. W. Davie, of South Carolina, a brother of Allen
Jones Davie. In the succeeding year, F. W. Davie leased it upon
certain terms and conditions to one McCulloch for the term of
twenty years, and in 1831, for the consideration of $5,000, he
conveyed to the latter an undivided one-third of the whole tract,
with the exclusive right to direct and manage the working of the
mines thereon and to receive one-third of the profits arising
therefrom, and a few months thereafter he, for the consideration of
$3,000, conveyed an undivided third of the same tract, with all the
emoluments and profits arising therefrom, to his brother, Hyder A.
Davie.
The complainants claim that subsequently, on the 15th of
January, 1833, F. W. Davie, in accordance with an agreement, which
at the time of his purchase from Teague he made with Allen Jones
Davie, conveyed the remaining undivided third of the tract to
Cadwalader Jones, Sen., with all the rights and privileges
thereunto belonging, in trust to permit said Allen, his wife, and
their children then living or thereafter resulting from their
marriage, to have and receive the rents, profits, and issues of the
said premises and of all mines thereon found for the joint use of
said Allen, his wife and children during the lifetime of the said
Allen, and after his death to permit his wife and children to
receive the said rents, profits, and issues, and after the death of
the wife to convey the premises, &c., to such children and
their issue, free and discharged from all trusts whatsoever, the
conveyance, however, being upon the condition that the land and
mines should be liable for one-third of such amount as upon
settlement should be found to have been expended by F. W. Davie in
working the mines. Upon that conveyance, which was never registered
and is alleged to have been lost, the complainants, heirs-at-law of
said Allen, rest as the foundation of their right to the relief
asked. The defendants deny that any such conveyance was ever
executed and delivered by F. W. Davie as his act and deed. Said
Allen, at the time of its alleged execution and delivery, was
residing upon the land with his family, and had some connection
with the working or management of the mines, the precise nature of
which does not appear. Difficulties occurred between him and
McCulloch which gave rise to a suit in 1833 in the Equity
Page 97 U. S. 630
Court of Guilford County in the name of "Allen Jones Davie and
others" against McCulloch. The papers in that suit had all
disappeared when this was commenced, and nothing remained to
indicate the nature of the issues but a few scattered minutes upon
the trial docket. From them it appears that an injunction of some
kind was granted against McCulloch which interfered with his mining
operations. By an order made in 1836, the master was directed to
ascertain the damages which McCulloch sustained by reason of the
injunction. The final order in that case seems to have been made in
1840 in the supreme court, to which it was transferred for trial.
That order is in these words:
"The deeds mentioned in the rules made at the last term in this
cause not having been exhibited and filed in the office of this
court by the time therein directed, it is ordered that the
plaintiffs' bill be dismissed out of this court, with costs to be
taxed by the proper officers, but without prejudice to the
plaintiffs' right to file another bill."
No other bill appears to have been filed. These minutes do not
show who were complainants in that suit with Allen Jones Davie, or
to what deeds the order of 1840 referred. Not long after that
litigation, Allen Jones Davie removed from the vicinity of the
mines to Hillsboro', N.C., and subsequently to South Carolina.
In 1848, McCulloch, for the consideration of $2,000, made a
quitclaim deed to John Gluyas for the undivided third of the land
conveyed to him by F. W. Davie in the year 1831. In the same year,
Hyder A. Davie died, having by his last will devised and bequeathed
to F. W. Davie, L. A. Beckham, and W. F. Desarre his whole estate,
real and personal, in trust for the sole and separate use of his
daughter, Mrs. Bedon. On the 2d of March, 1850, F. W. Davie made
two deeds (which were duly recorded on the same day) to Beckham,
one to him individually, for an undivided third of the land for the
expressed consideration of $2,000, and the other to him for an
undivided third of the same land, in trust for Mrs. Bedon, the
consideration therefor, as recited, being $3,000, previously paid
to the grantor by Hyder A. Davie. Within a few weeks after the
making of these two last deeds, F. W. Davie died at his home in
South Carolina. On 9th April, 1850 (whether F. W. Davie was then
alive
Page 97 U. S. 631
does not appear), Beckham leased an undivided two-thirds of the
tract to Briggs for the term of five years, and the latter, on June
12, 1850, assigned that lease to John Peters and M. L. Holmes.
During the succeeding year, Allen Jones Davie started for
California by the overland route, and was never heard from after he
had reached in his journey the hostile Indian Territory. In 1852,
John Gluyas conveyed, by quitclaim deed, to John Peters and M. L.
Holmes the undivided one-third which he had previously acquired
from McCulloch; and in 1853 M. L. Holmes conveyed to R. J. Holmes
one-eighteenth of the part purchased from Gluyas and a one-sixth
interest in the lease taken by Holmes and Peters from Briggs. Under
the foregoing deeds and leases, Peters, Sloan, & Co., for a
time, worked the mines; and in June, 1853, they joined with Beckham
in selling and conveying the property by separate deeds to the
Belmont Mining Company, at the price of $125,000, which was paid to
Peters, Sloan, & Co. Of that sum, it was agreed between the
parties selling that Peters, Sloan, & Co. were entitled to
$81,666.66, while Beckham, in his individual right and as trustee
for Mrs. Bedon, was entitled to receive $43,333.33. Before this
transaction, however, was consummated by a division of the funds
among the respective parties, a written notice, dated July 23,
1853, signed by the attorney of "Cadwalader Jones and the heirs of
Allen Jones Davie, deceased," was served upon Peters, Sloan, &
Co. to the effect that
"one-third of the purchase money for which the McCulloch mine in
the County of Guilford has lately been sold is claimed by Colonel
Cadwalader Jones, as trustee, for the use and benefit of the
children and heirs-at-law of Allen J. Davie, by a deed from F. W.
Davie, bearing date the 15th January, 1833."
They were, by that notice, "requested and notified to retain
one-third of said money" in their hands "for the use of said heirs,
and not to pay out said third to any person or persons without the
consent of Col. C. Jones." This notice induced Peters, Sloan, &
Co. to suspend any final settlement and division with Beckham. In
the fall of 1853, it seems that Cadwalader Jones, Jr., a son of the
trustee named in the deed of Jan. 15, 1833, was employed by the
latter and by William R. Davie to establish the claim of the heirs
of Allen Jones Davie to said land and mines. After his
Page 97 U. S. 632
employment, Cadwalader Jones, Jr., appears to have had some
negotiations with Beckham, which resulted in the latter's
executing, in the presence of Sloan, of Peters, Sloan, & Co.,
and Cadwalader Jones, Jr., a paper, of which the following is a
copy:
"STATE OF NORTH CAROLINA,
Guilford County:"
"Whereas Peters, Sloan, & Co. held one-third of the
McCulloch gold mine in Guilford County, under John Gluyas, Charles
McCulloch, and William F. Davie, and whereas they had a lease from
Lewis A. Beckham in his own right, and as trustee of Mrs. Julia
Bedon, for two-thirds of said mine for a period the lease will
show;"
"Whereas said Peters, Sloan, & Co. worked the said mine for
some year or two, and paid one-seventh of the two-thirds of all the
gold extracted whilst they worked the mine to said Lewis A. Beckham
for himself, and as trustee aforesaid;"
"Whereas Peters, Sloan, & Co. sold their interest in said
mine for $82,333.33;"
"Whereas Lewis A. Beckham sold his interest in said mine for
$21,333.33, and his interest as trustee aforesaid for the same
sum;"
"Whereas Col. Cad. Jones, of Hillsboro', as trustee, claiming
the one-third of said mine as trustee for Allen J. Davie, wife and
children, as he alleges under a deed from William F. Davie;"
"Whereas James Sloan, one of the firm of Peters, Sloan, &
Co., collected for Lewis A. Beckham his part and the part of Julia
Bedon, to-wit, $41,666.66;"
"Whereas it is the wish of all the parties for the said several
parties to receive the said several purchases without prejudice to
the legal or equitable claim of Col. Cad. Jones;"
"It is agreed that whatever claim the said Cad. Jones had in
said gold mine he shall have against the several parties who have
sold and received the purchase money instead of the land itself.
And the said Lewis A. Beckham hereby agrees to acknowledge service
of any bill in equity which the said Cad. Jones and his
cestui
que trust may in equity file against himself or against
himself and others in Guilford County, North Carolina, waiving all
questions as to jurisdiction, to settle any and all questions of
title and right the said Cad. Jones, trustee, or his
cestui que
trust, have or may have for the said purchase money, or the
rents and profits received whilst he had any thing to do with the
said mines."
"(Signed) L. A. BECKHAM"
"APRIL 28, 1854"
Page 97 U. S. 633
Beckham died in 1860 or 1861. His estate was insolvent. In July,
1874, this suit was instituted for the purpose of either obtaining
a partition of the land or a portion of the proceeds of the sale.
In the progress of the suit, the complainants elected to claim an
interest in the proceeds of the sale. Among the defendants are the
Belmont Mining Company, James Sloan, M. L. Holmes, and R. J.
Holmes, whom the complainants seek to hold liable for their alleged
interest in the proceeds of sale. Upon final hearing, the bill was
dismissed, and the complainants appealed.
MR. JUSTICE HARLAN, after stating the case, delivered the
opinion of the Court.
The appellants, as the heirs at law of Allen Jones Davie,
deceased, assert an interest in the proceeds of a sale which took
place in June, 1853, of a tract of land in Guilford County, North
Carolina, known many years ago as the McCulloch gold mine.
Whether the defense, so far as it rests upon the statute of
limitations of North Carolina, can be sustained depends upon the
evidence as to the time when Allen Jones Davie died. The learned
counsel for appellants insist that, consistently with the legal
presumption of death after the expiration of seven years without
Allen Jones Davie's being heard from by his family and neighbors,
the date of such death should not be fixed earlier than the year
1858. In that view -- excluding from the computation of time the
war and reconstruction period between Sept. 1, 1861, and Jan. 1,
1870, as required by the statutes of North Carolina (
Johnson v.
Winslow, 63 N.C. 552), suit, it is contended, would not be
barred by limitation. The general rule undoubtedly is that
"a person shown not to have been heard of for seven years by
those (if any) who, if he had been alive, would naturally have
heard of him, is presumed to be dead unless the circumstances of
the case are such as to account for his not being heard of without
assuming his death."
Stephen, Law of Evid., c. 14, art. 99; 1 Greenl.Evid.,
Page 97 U. S. 634
sec. 41; 1 Taylor, Evid., sec. 157, and authorities cited by
each author. But that presumption is not conclusive, nor is it to
be rigidly observed without regard to accompanying circumstances
which may show that death in fact occurred within the seven years.
If it appears in evidence that the absent person, within the seven
years, encountered some specific peril or within that period came
within the range of some impending or immediate danger which might
reasonably be expected to destroy life, the court or jury may infer
that life ceased before the expiration of the seven years. Mr.
Taylor, in the first volume of his Treatise on the Law of Evidence
(sec. 157), says that
"although a person who has not been heard of for seven years is
presumed to be dead, the law raises no presumption as to the time
of his death, and therefore if anyone has to establish the precise
period during those seven years at which such person died, he must
do so by evidence, and can neither rely, on the one hand, on the
presumption of death nor, on the other, upon the presumption of the
continuance of life."
These views are in harmony with the settled law of the English
courts.
In Re Phene's Trust, Law Rep. 5 Ch. 139;
Hopewell v. De Pinna, 2 Camp.N.P. 113;
Reg. v.
Lumley, Law Rep. 1 C.C. 196;
Re Lewes' Trusts, Law
Rep. 11 Eq. 236; 32 Law J.Ch. 104; 40
id. 507; 29
id. 286; 37
id. 265. In the leading case in the
Court of Exchequer of
Nepean v. Doe dem. Knight, 2 Mee.
& W. 894, in error from the Court of King's Bench, Lord
Deninan, C.J., said:
"We adopt the doctrine of the Court of King's Bench that the
presumption of law relates only to the fact of death, and that the
time of death, whenever it is material, must be a subject of
distinct proof."
To the same effect are Mr. Greenleaf and the preponderance of
authority in this country. 1 Greenl.Evid., sec. 41;
Montgomery
v. Bevans, 1 Sawyer 653;
Stevens v. McNamara, 36 Me.
176;
Smith v. Knowlton, 11 N.H. 191;
Flynn v.
Coffee, 12 Allen (Mass.) 133;
Luing v. Steinman, 1
Metc. (Mass.) 204;
McDowell v. Simpson, 1 Houst. (Del.)
467;
Whiting v. Nicholl, 46 Ill. 230;
Spurr v.
Trumble, 1 A.K.Mar. (Ky.) 278;
Doe ex dem. Cofer v.
Flanagan, 1 Ga. 538;
Smith v. Smith, 49 Ala. 156;
Prim v. Stewart, 7 Tex. 178;
Gibbes v. Vincent,
11 Rich. (S.C.) 323;
Hancock v. American Life Insurance
Co., 62 Mo. 26, 121;
Stouvenal v.
Page 97 U. S. 635
Sephins, 2 Daly (N.Y.) 319;
McCartee v. Camee,
1 Barb. (N.Y.) Ch. 456. And such seems to be the settled doctrine
in North Carolina. In
Spencer v. Moore, 11 Ired. 160, the
Chief Justice of the Supreme Court of that state said:
"The rule as to the presumption of death is that it arises from
the absence of the person from his domicile without being heard
from for seven years. But it seems rather to be the current of the
authorities that the presumption is only that the person is then
dead -- namely, at the end of seven years, but that the presumption
does not extend to the death's having occurred at the end, or any
other particular time within that period, and leaves it to be
judged of as a matter of fact according to the circumstances, which
may tend to satisfy the mind that it was at an earlier or later
day."
The question again arose in the subsequent case of
Spencer
v. Reper, 13
id. 333, 334, when that court reaffirmed
Spencer v. Moore and, referring with approval to the
doctrine announced by the Court of King's Bench in
Doe dem.
Knight v. Nepean, 5 Barn. & Adol. 86, same case as 2 Mees.
& W. 894,
supra, said:
"Where a party has been absent seven years without having been
heard of, the only presumption arising is that he is then dead --
there is none as to the time of his death."
We therefore follow the established law when we inquire whether,
according to the evidence, Allen Jones Davie died at an earlier
date than at the end or expiration of the seven years when the
legal presumption of his death arose. It seems to us that, upon the
showing made by the complainants themselves, the conclusion is
inevitable that he died sometime during the year 1851. As early as
July 23, 1853, a written notice was given to Peters, Sloan, &
Co., in which they were advised that Colonel Cadwalader Jones and
the children of Allen Jones Davie claimed an interest in the
proceeds of the sale made by them and Beckham in June, 1853, to the
Belmont Mining Company. That notice was signed by "Ralph Gorrill,
sol'r of C. Jones and the heirs of A. J. Davie dec'd." The notice
is produced and relied upon by the complainants in support of their
claim.
Further, in the seventh paragraph of the complainants' bill they
say
"That the said Allen Jones Davie departed this life,
Page 97 U. S. 636
as it is believed, sometime in the year 1851, but the precise
date of his death is not known, nor can any direct proof be
obtained, nothing having been heard from him since the ___ day of
November, 1851, when some of a party with whom he had undertaken a
journey by land to California through the country of hostile
Indians returned, saying that the party had been some time fighting
the Indians when they left, but that said Allen Jones Davie, with
the rest of the party, resolved to press on and fight their way
across the country, in which struggle it is believed that he, with
the rest of the party, perished, as none of them has ever been
heard of since."
Again, in the deposition of Cadwalader Jones, Jr., we find this
language:
"As to Allen Jones Davie, the precise time of his death has
never been ascertained, but he perished (it is supposed) in the
Indian Territory, April or January, in the year 1851, and has never
been heard of since."
But this is not all the evidence in the record upon this point.
In a statement of "admitted facts" filed in the cause we find the
following:
"That the time of the death of Allen Jones Davie is not known,
but his death is supposed to have happened late in the fall of
1851, say 1st December, since which time he has not been heard
from."
In view of this evidence, we cannot accept as absolutely
controlling the legal presumption which, in regard to Allen J.
Davie's death, arose at the expiration of seven years from the time
when he was last heard from. We cannot determine the rights of the
parties upon the hypothesis that his death occurred in the year
1858 when the appellants themselves and their chief witnesses not
only unite in declaring their belief that he died in 1851, but
state facts which fully justify that belief. Concluding, then, as
we must, that he died in the year 1851, it seems clear that the
claim set up in the bill to an interest in the proceeds of the sale
of June, 1853, is barred by the limitation of three years
prescribed by the North Carolina statute, and it does not appear
that any of the complainants are protected by the savings made in
the statute for the benefit of infants and
femes
covert.
But it is contended that, in view of the absence of the
appellants from North Carolina for many years prior to the sale of
1853 and their continuous absence since that date,
Page 97 U. S. 637
their rights are protected by the saving in the North Carolina
statute in favor of persons who, having causes of action, were
"beyond the seas" when they accrued.
We are not unaware of the construction which this court has in
several decisions placed upon the phrase "beyond the seas" as used
in statutes of limitation. In
Faw v.
Roberdeau, 3 Cranch 173, this Court, in considering
the meaning of the words "out of this commonwealth" as employed in
a Virginia statute of limitations, said: "Beyond sea and out of the
state are analogous expressions, and are to have the same
construction." In
Murray's Lessee v.
Baker, 3 Wheat. 541, involving the construction of
a Georgia statute of limitation, this Court held that the words
"beyond the seas" must be held to be equivalent to "without the
limits of the state." In
Bank of Alexandria v.
Dyer, 14 Pet. 141, the same views were expressed as
to a Maryland statute of limitations. While the Court in that case
approved the interpretation of the words "beyond the seas" as given
in previous decisions, it said that its construction was in harmony
with the uniform decisions of the courts of Maryland. In
Shelby v. Guy,
11 Wheat. 361, the Court was required to interpret the same words
in a statute of limitation which was in force in Tennessee before
its separation from North Carolina. Mr. Justice Johnson, in his
opinion, remarked that it was neither sensible nor reasonable to
construe these words according to their literal signification. Upon
the suggestion, however, that a contrary decision had then recently
been made in Tennessee, the Court withheld any positive declaration
upon the point in the hope that the courts of the state would in
due time furnish such lights upon its settled law as would enable
this Court to come to a satisfactory conclusion upon the question.
The Court at the same time decided, as they had previously done in
Green v. Lessee of
Neal, 6 Pet. 291, and as they subsequently did in
Harpending v. Dutch
Church, 16 Pet. 455, and
Leffingwell v.
Warren, 2 Black 599, that the fixed and received
construction by the state courts of local statutes of limitation
furnishes rules of decision for this Court so far as such
construction and statutes do not conflict with the Constitution of
the United States.
Guided by the doctrines of these cases, let us inquire
Page 97 U. S. 638
whether the phrase "beyond the seas," used in the statutes of
North Carolina, has received a fixed construction in the courts of
that state. As early as 1811, in the case of
Whitlock v.
Walton, 2 Murph. 23, 24, the Supreme Court of North Carolina
construed the words "beyond the seas," which were used in the
statute of limitations of 1715. It was there claimed that a citizen
of Virginia, who had a cause of action against a citizen of North
Carolina but who failed to sue within the period fixed by the
statutes, was within the saving made for the benefit of those
"beyond the seas." But the supreme court of that state said:
"The plaintiff is certainly not within the words of the proviso,
and it does not appear to the court that he falls within the true
meaning and spirit of it. Great is the intercourse between the
citizens of this state and the citizens of other states,
particularly adjoining states, and if suits were permitted to be
brought on that account against our own citizens, at any distance
of time, by citizens of other states, the mischief would be
great."
That case was approved in
Earle v. Dickson, 1 Dev. 16,
decided in 1826. We have been referred to no later case in that
court which in any respect modifies these decisions. Consequently
our duty is, without reference to our former decisions, to adopt in
this case the construction which the Supreme Court of North
Carolina has given to the limitation statute of that state. In so
doing, we pursue the precise course marked out in the case of
Green v. Lessee of Neal, supra, where this Court said:
"In the case of
Murray's Lessee v. Baker, 3
Wheat. 541, this Court decided that the expressions 'beyond seas'
and 'out of the state' are analogous, and are to have the same
construction. But suppose the same question should be brought
before this Court from a state where the construction of the same
words had been long settled to mean literally 'beyond seas,' would
not this Court conform to it?"
The question was answered by saying that
"an adherence by the federal courts to the exposition of the
local law, as given by the courts of the state, will greatly tend
to preserve harmony in the exercise of the judicial power in the
state and federal tribunals."
Supervisors v. United
states, 18 Wall. 82;
Suydam v.
Williamson, 24 How. 427.
Page 97 U. S. 639
It results that the absence of the complainants from the State
of North Carolina, but within the United states, does not bring
them within the saving made for persons "beyond the seas."
But upon this branch of the case we are met with the additional
argument against the application of the statute of limitations that
this is a case of an express trust, and therefore it is not
embraced by the statute. This trust is alleged to have been created
by the writing which Beckham executed on the 23d of July, 1854. But
we do not assent to any such construction of that writing, nor do
we perceive anything in the conduct of the parties which raises a
trust even by implication. As was well said by the district
judge,
"No trust can arise by implication from the circumstances of the
transaction, as the defendants assumed no new obligation or in any
way recognized the rights of the plaintiffs to the fund derived
from the sale of the land. The defendants held these funds
adversely, as they formerly held the lands. They only agreed that
if the plaintiffs could show in a court of equity that they were
entitled to any relief against the defendants as the former holders
of the land, the same relief should be had against them as the
holders of the proceeds of the land."
It is clear from all the evidence that no such relations were
created between the parties by the transactions of 1853 and 1854,
as suspended or stopped the running of the statute of limitations,
and the suit seems to be barred.
But independently of the conclusion reached upon the question of
limitation, there is another view which, in our opinion, equally
precludes all relief to the complainants. It is not at all
satisfactorily shown that F. W. Davie ever delivered as his act and
deed the conveyance of Jan. 15, 1833. The presumption is very
strong that he did not. It may be inferred that the original
purchase from Teague was made in deference to the wishes or upon
the suggestion of Allen Jones Davie, whose estimate of the value of
the gold under Teague's land was so extravagant that he expressed
his belief of its sufficiency to pay the debt of England. The
intention of F. W. Davie, perhaps, was at some future time, and
when his judgment approved that course, to give his brother, who
was of a restless,
Page 97 U. S. 640
speculative disposition, an interest in the land. It was
doubtless in preparation for the execution of that purpose that an
original deed was prepared and signed by him containing the terms,
conditions, and trusts described in the bill, and of which the
paper produced is satisfactorily shown to be a correct copy. But no
witness proves that he ever delivered the original to Allen Jones
Davie or to any member of his immediate family or to Colonel Jones,
the designated trustee. If the deed which C. Jones, Jr., refers to
is the same original, certainly his testimony falls far short of
proving that it was ever in the possession of Allen Jones Davie.
That witness states nothing more than his "impression" that he saw
the deed in the possession of Allen Jones Davie while the latter
lived in Hillsboro', N.C. But he cannot remember its contents. Nor
does he state in what year he saw it, or that he recognized the
genuine signature of F. W. Davie to the deed. The original, of
which the one filed is a copy, was certainly in the possession of
William R. Davie, a son of Allen Jones Davie, sometime after the
death of F. W. Davie. But where, from whom, or when he obtained it
does not appear. It is not proven that he obtained it in the
lifetime of F. W. Davie. It is consistent with the proof, and is
not a violent presumption, that it was found among the papers of F.
W. Davie after his death. There is no competent evidence that
anyone oversaw it in the hands of Allen Jones Davie, or that F. W.
Davie, in his lifetime, in any form recognized the right of his
brother, or of the trustee, Jones, to its possession. Nor is it
shown that the alleged trustee was aware, until after the death of
F. W. Davie, of the trust intended to be conferred upon him, when
the deed should be delivered.
The loose minutes on the trial docket of the case of Allen J.
Davie and others against McCulloch furnish no evidence that Allen
Jones Davie, during that litigation, had any such deed or claimed
any right under it. The reasonable construction of the order made
in that case in the year 1840 is that the suit was dismissed
because he could not produce any such deed, and if he could not
produce it, it must have been because F. W. Davie still had it in
his possession and had not delivered it to his brother. From 1840
down to his leaving for California,
Page 97 U. S. 641
Allen Jones Davie did not seem to have any connection with the
mines, and no one proves any act or assumption of ownership upon
his part during that period. In view of the great value which at
one time he placed upon this property, we cannot suppose, had the
deed been in his custody or under his control at any time before
starting on a perilous overland journey to California, that he
would have left without either putting it upon record or asserting
his claim to the land in some distinct form or protesting against
the absolute sale to Beckham by F. W. Davie. More than a year
before he departed for California, his brother had sold and
conveyed to Beckham, by deed promptly placed upon record, the
identical interest in the land which the appellants claim had been,
in 1833, effectively conveyed to their ancestor. If, when the
conveyance to Beckham was made, F. W. Davie had not delivered the
signed deed of 1833, his determination in 1850 not to make such
delivery, but to sell the land to Beckham, cannot be questioned by
plaintiffs in error. Allen Jones Davie had not, so far as the
record shows, paid anything for an interest in the land either in
money or services. The copy of the original deed which is produced
recites no consideration except one dollar in hand paid, and while
the record does not furnish an explanation of his change of
purpose, it is clear that F. W. Davie was under no legal obligation
which prevented him in 1850 from selling the land and withholding
from his brother the delivery of the deed of 1833. So far as the
record speaks, it appears to be a case of an unexecuted gift by F.
W. Davie to his brother. His whole conduct for many years prior to
his death is altogether inconsistent with the hypothesis that he
had at any time prior to his sale to Beckham consummated the gift
by delivering the deed to his brother. The conclusions we have
expressed are much strengthened by what occurred after the sale to
the Belmont Mining Company in June, 1853. In the fall of that year,
C. Jones, Sen., in conjunction with William R. Davie, a son of
Allen Jones Davie, employed C. Jones, Jr., an attorney and a
kinsman of the latter, to establish the claim of the trustee and
the children of Allen Jones Davie to the land or to an interest in
the proceeds of its sale. C. Jones, Jr., admits that he entered
diligently upon the discharge of this duty. He was cognizant,
because
Page 97 U. S. 642
he was present at the execution, of Beckham's agreement of April
28, 1854, whereby it was stipulated that the trustee and
cestui
que trust might assert through legal proceedings any claim
they had in the proceeds of the sale of the land and wherein
Beckham agreed to appear to any suit in equity instituted for such
purpose, waiving all question of jurisdiction. Although Cadwalader
Jones, Sen., lived within about sixty miles of the land for many
years after the sale of June, 1853, no such proceedings were
instituted until this suit was commenced in 1874, twenty four years
after the death of F. W. Davie and twenty-one years after the sale
to the Belmont Mining Company by his grantees, whose deeds were
duly recorded. This great lapse of time since the sale of 1853
without an assertion in some form of legal procedure of the rights
now claimed is persuasive evidence that the persons who examined
into the facts, when they were fresh in the minds of living
witnesses, reached the conclusion that the deed of January, 1833,
had never been delivered by F. W. Davie, and that therefore neither
the trustee nor the children and heirs of Allen Jones Davie
acquired any rights thereunder.
Upon the whole case, we are satisfied that the decree dismissing
the bill was right, and should be affirmed. It is
So ordered.
