Lessee of Blake v. Davis et al. that she is a married woman; but I have yet to learn that even married women have a right to do wrong. We take from her none of her rights; we only prevent her from taking the rights of others. I will now briefly advert to the authorities relied upon by the plaintiff's counsel. The first is the case of Jackson v. McCall, 10 Johns. 380. In this case the parties claiming the benefit of sne presumption, had been in actual possession for forty-one years, and this circumstance is as strongly relied upon as in any case to be found in the books. The court say: "This John McDonald died in possession, and the lessor of the plaintiff succeeded as his son and heir to the possession of the Provoost lot, and in which he has since continued. We are then to conclude that the father purchased the Provoost title at an early day; and from the fact of the order of the council, and the original survey by government in 1764, and the recognition of it in the patent to McKenzie in 1765, and the continual and undisturbed possession by the family of the lessor, a patent to Provoost, and a deed from him to the elder McDonald, might even have been presumed, for the sake of quieting the possession. In the case of the Mayor of Hull v. Horner, Cowp. 102, Lord Mansfield held, that a grant or charter from the crown, which ought to be by matter of record, might, under the circumstances, be presumed, though within time of legal memory. The fact in such a case is presumed, for the purpose and from a principle of quieting the possession, and not because the court really think a grant has been made." The cases of Clinton's Lessee v. Campbell, 10 Johns. 475, and Jackson v. Moore, 13 Johns. 513, next cited, affirm the principle that where lands are conveyed by a number of persons to a trustee, to convey according to a partition agreed upon among the [246 owners, deeds from the trustee in execution of the trust, would be presumed, after a lapse of many years, in favor of the persons equitably entitled thereto-the very doctrine held by us in the first part of this opinion. The next case cited is Jackson v. Woolsey, 11 Johns. 446. The defendant claimed under a deed from commissioners appointed to make partition, was in actual possession, and the equitable owner. Yates, J., in delivering the opinion of the court, says: "The circumstances of this case would warrant a jury to presume, that the deed alleged to have been given by the commissioners had VOL. XX-14. 209 Lessee of Blake v. Davis et al. been duly executed by them, in pursuance of the order of the court of common pleas; and if so, this court are bound to presume it. The objection stated in the argument, that the period of possession is insufficient to authorize such a presumption, can not prevent it. It is correct here to presume that they did their duty." The case of Farrer et al. v. Merrill, 1 Greenl. 17, is claimed as a very strong one for the plaintiff. In that case it was decided that "after a lapse of more than seventy years, without any adverse claim, the jury may presume a grant from the original proprietor of a share in a township of land, to a person afterward constantly acting as grantee of such share, sustaining various offices as such in the corporation of proprietors, and paying taxes thereon; although such share consist of wild land and be not holden by any open, visible possession." C. J. Mellen, while he admitted the general rule, requiring actual possession on which to found the presumption, and that it could never arise where there was adverse possession, said he regarded these "circumstances as equal, perhaps, to open possession, in favor of the presumption." The points of resemblance between that case and the one under consideration, are very few indeed. In that case seventy years had elapsed without any adverse claim-in this one fifty, with a constant adverse claim; in that, the person claiming the presump247] tion had constantly acted as the grantee-in this, no such acts are pretended; in that case the claimant had constantly paid the taxes in this, none are paid; in that case the lands were wild and unoccupied-in this, held adversely for many years. Upon a careful examination of all the cases cited, we do not think they help the plaintiff's case; and we are confident no case can be found where a deed has been presumed in favor of a party so thoroughly disconnected with the land as this plaintiff and those under whom he claims. Certain it is, that this court have most positively and explicitly held the contrary. In Kinsman's Lessee v. Loomis, 11 Ohio, 475, Judge Lane, in delivering the opinion of the court, says: "But this presumption will not aid the plaintiff here. It springs from possession; it is raised to support a possession; it has no existence in his favor who attacks the rights of one who holds the possession adversely against him." And again: In Harmon v. Kelly, 14 Ohio, 509, Judge Birchard, Lessee of Blake v. Davis et al. delivering the opinion of the court, after quoting and approving this decision, says: "When a cestui que trust has for a long time been in possession of lands which the trustee ought to have conveyed to him, the conveyance may be presumed, but the presumption is not raised in his favor who attacks or holds in opposition to the equitable right." This holding is in strict accordance with the well-settled rule of evidence upon the subject, as found in the elementary books. It is thus stated in 2 Cowen & Hill's Notes to 2 Phillips' Ev. 356: "Sometimes a deed, in the execution of a trust, is to be presumed; sometimes a surrender of terms, or a conveyance in pursuance of some agreement, or in the execution of some legal duty; or from some other circumstances. In all these cases adverse possession, or what is equivalent, makes the main ingredient; but the time may overgo, or fall short of that required by the statute; and various auxiliary circumstances are admissible to support or detract from the presumption." The same rule is laid down by Greenleaf, vol. 1, page 53. He says: "It is sufficient that the party who asks the aid of this *presumption, has proved a title to the beneficial ownership, [248 and a long possession, not inconsistent therewith; and has made. it not unreasonable to believe that the deed of conveyance, or other act essential to the title, was duly executed. Where these merits are wanting, the jury are not advised to make the presumption." We are of opinion that all these merits are wanting in this case. In the first place, the lessor of the plaintiff has proved no "title to the beneficial ownership." If he had a legal advantage by which he could recover the land, it would still be dishonest to do so, while the consideration paid for it was retained. He, or those under whom he claims, have had no "long possession" of this land, or indeed any possession, or anything equivalent to it. It would be difficult to imagine a case of more entire absence of all acts or claims of ownership, than is found in this, for more than half a century. It is "unreasonable to believe" that any deed was ever made by the agent to either Williams or his daughter. He was dead long before it could have been made, and his equity in the land was sold under the sanction of the highest judicial tribunal in the State of Massachusetts, where the parties all resided, and the original certificate transferred to the purchaser, also before any deed could have been Lessee of Blake v. Davis et al. made to his heir. And while these proceedings fail in legal efficiency to transfer the title, when taken in connection with the long acquiescence in them, they make it "unreasonable" to suppose that the heir ever claimed, or the agent made her a deed, especially as his own liability was not removed until his certificate was taken up or satisfied. We are therefore unanimously of opinion, that no such conveyances as are claimed, could rightfully be presumed in favor of the lessor of the plaintiff, or in aid of the title under which he claims. This disposes of the case upon the broadest ground upon which the parties have placed it. But a majority of this court are of opinion that a judgment could not, in any event, be rendered for the plaintiff, upon the special verdict found in the case. There are not facts enough 249] *found by the jury to enable them to do so. Without the deeds sought to be presumed, it is conceded the plaintiff could not recover. The jury alone are authorized to presume them. This is not done; but a state of facts is found, from which it is claimed such presumptions may be raised. This is but the finding of evidence by the verdict, which is clearly insufficient. The rule is thus stated by Gould: "If, in a special verdict, the jury find only the evidence of a material tact, instead of the fact itself, or otherwise omit to find upon such a fact either way, no judgment can be rendered upon the finding for either party; since a matter of fact, essential to a determination of the cause, is left unascertained by the verdict," as if in trover the jury find the loss of the goods, the finding by defendant, and refusal to deliver them up on demand; and he gives this reason: "For the conversion, which is the gist of the action, is neither found nor denied by it; the demand and refusal being only prima facie evidence of a conversion." Gould's Pleading, 525. That these are mere presumptions of fact, and to be drawn, by the jury, is well settled. In Ricard v. Williams, 7 Wheat. 109, it is said: "They may be encountered and rebutted by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent with the non-existence of a grant." In Jackson v. Porter, 1 Paine, 8, it was held by Thompson, J., that "whether a deed is to be presumed from a long possession, is a mixed question of law and fact, and in most, if not in all cases, to be submitted to the jury under the advice of the court. The Lessee of Ward v. Racer. existence of the deed is a fact for the jury, but its legal effect and operation is a question of law for the court." We see nothing erroneous in the judgment of the court of common pleas, and it must therefore be affirmed. *LESSEE OF NAHUM WARD V. BENJAMIN RACER. [250 A deed made in 1835, by two surviving executors of a person who died seized of the premises in 1804, will not prevail against an adverse possession of more than twenty-one years since the death of the last devisee. If the deed of the 1835 has relation back to the "inception of the power," so as to defeat the estate in the heirs of the last devisee, it will be deemed in law to give a right of action to the lessor of plaintiff at the same early period. ERROR to the common pleas of Washington county. Nahum Ward claimed title to the premises sought to be recovered, under a deed dated December 10, 1835, made by the two surviving executors of Pascal N. Smith to said Nahum Ward. He proved on the trial in the court below that Pascal N. Smith died seized of the land in controversy, in the year 1804, having made a will which bears date March 20, 1801. By this will the testator gave one-third of all his estate, real and personal, to his wife Hester, and directed that the residue be equally divided between his four children, Harriet, Augusta, William Temple, and Hester Georgiana. He directed, further, that if any of his said children should die before they arrived at the age of twenty-one years, or without issue by lawful marriage, then their part or parts should go to the survivors or survivor, their heirs and assigns forever. And in the event that all his said four children should die before they came to be twenty-one years of age, without having issue by lawful marriage, then he directed that the whole estate, thus devised to said children, should go to his said wife Hester, and to her heirs and assigns forever. He made his wife Hester, and his nephews, Benjamin Strong and John Aspinwall, the executors of his last will and testament, |