"Where the original possession by the holder of land is in privity with the title of the rightful owner, in order to enable such holder to avail himself of the statute of limitations nothing short of an open and explicit disavowal and disclaimer of hoiding under that title, and asserting a title in himself, brought home to the other party, will satisfy the law."

The defense of laches, and that of the presumption of an ancient grant, will be considered together. The answer of Archbishop Elder, adopted, as already stated, by the other defendants, including Fannie Sands and John Keeshan, contains by way of admission a detailed statement of the purchases made by Messrs. Lincoln and Smith, and by T. D. Lincoln, in trust for the defendants, from which it appears that deeds were made to them at various dates from the 29th of December, 1868, up to and including the 23d of June, 1871, by persons who are described in the recitals of said deeds as claiming by inheritance from the brothers and sisters of William Barr, Sr., as heirs at law of Mary Jane Barr. Those deeds, in each instance, conveyed all the right, title, and interest of the grantors in and to the entire tract. A deed of warranty from Samuel Barr and Catherine Barr, his wife, to Timothy D. Lincoln, his heirs and assigns, forever, in trust for himself and such other persons as were in possession of such lands in separate parcels, (he then having acquired and holding an interest in a portion of the lands in controversy,) recites that

*

"Mary Jane Barr, daughter of John M. Barr and Maria Barr, his wife, who after his death intermarried with John Bigelow, all of whom are deceased, at the time of her death was seised of the reversion in fee, subject to the life-estate of her mother, Maria Bigelow, in and to the following described tract of land, under the last will and testament of her grandfather, William Barr, Sr., late of Hamilton county, deceased, [here follows a description of the entire tract of 161 4-10 acres, as described in the second amended bill;] and which, by the said last will, was devised to the said John M. Barr and Maria Barr during their said lives, and the survivors of them, with remainder in fee as specified in said will. * * And whereas, on the death of the said Mary Jane Barr one undivided fifth part of said reversionary interest passed by descent from her (subject to the life-estate of her said mother, who survived her and died in the year of our Lord 1862) to and became vested in Andrew Barr, late of Fairfield county, Ohio, deceased, and upon his death passed to and became vested in his children and their descendants as his heirs at law, his said children being six in number, namely, Thomas Barr, Nancy Barr, alias Agnes Owens, William Barr, James Barr, Samuel Barr, and John Barr; one of whom, James Barr, died intestate, without issue, leaving his said brothers and sisters his heirs at law. And whereas, said Samuel Barr, son of the said Thomas, not claiming any interest in said lands by descent or otherwise from his said father after his death, claims to be vested with the legal title in fee in and to one undivided twenty-fifth part, and to fivesevenths part of two-thirds part of one-seventh part of one other one thirtyfifth part of said tract of land, by purchase and deeds of conveyance to him therefor, from a number of persons named, stating their supposed relationship to the said Andrew Barr. Therefore," etc., "he conveys," etc.

The answer further admits that there appear of record deeds from sundry persons to Archbishop Purcell, who was the predecessor of Archbishop Elder and from whom Archbishop Elder acquired title by devise.

These deeds recite that the title which they purport to convey was claimed by the grantors as heirs of Jane Barr Mewhirter, and they contain a recital of their heirship as the heirs of Jane Mewhirter.

It is also admitted that all the deeds purported to be executed by the heirs of Jane Mewhirter to the sundry parties in possession contain recitals of the heirship of the grantors as the heirs of Jane Mewhirter, the sister of William Barr, Sr., to whom one-fifth of the property descended.

This cause was commenced in the state court on the 4th day of December, 1886,-less than 16 years after the date of the last deed to Lincoln, and less than 10 years after the date of the last deed to Archbishop Purcell. After the removal of the cause to this court, Robert Livingston Lobdell and Tennie Lobdell became parties, and asserted their claim, July 12, 1887. The cross-bill of Samuel Barr and others, and that of Robert Eldridge and others, were filed October 1, 1889. Laura O. Henley et al. were made parties, August 14, 1890, and upon the same day filed their cross-bills. The last of these became parties to this litigation less than 20 years after the date of the last deed made to T. D. Lincoln, as trustee for the defendants, as aforesaid, and less than 14 years after the deed to Archbishop Purcell from the heirs of Jane Barr Mewhirter. We are now asked to presume an ancient grant to the defendants, notwithstanding the above admissions, the facts already stated in this opinion, and the decision by the supreme court of the United States in Lessee of Poor v. Considine that the defendants' holding was in subordination to the rightful owners, the heirs of Maria Jane Barr; that is to say, the descendants of the brothers and sisters of William Barr, Sr.

That decision was what prompted the employment of Lincoln and Smith to make purchases from certain of those heirs, as has herein before been shown. In pursuing the inquiry whether the law authorizes the presumption of a grant under these circumstances, we must begin with the recognition of the rule that every presumption is in favor of possession in subordination to the title of the true owner. Lawson, Pres. Ev. 414; Jackson v. Sharp, 9 Johns. 163; Rung v. Shoneberger, 2 Watts, 23. Next we come to the proposition established by Ricard v. Williams, 7 Wheat. 59, universally recognized as a leading case, where Justice STORY, speaking for the supreme court of the United States, says that the presumption of a grant can never arise where all the circumstances are perfectly consistent with the non-existence of a grant, nor where the claim is of such a nature as is at variance with the supposition of a grant; also, that it is limited in general to periods analogous to those of the statute of limitations in cases where the statute does not apply; and that, where the statute does apply, it constitutes, ordinarily, a sufficient title or defense, independent of any presumption of a grant, and therefore the presumption is not generally resorted to. So, also, in Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. Rep. 667, the supreme court of the United States held that, as a general rule, it is only where the possession has been actual, open, and exclusive for the period prescribed by the stat

as

ute of limitations to bar an action for the recovery of lands (which in Ohio is 21 years) that the presumption of a deed can be invoked; and the same rule applies generally to the defense of laches. Unless, therefore, there is something exceptional in this cause, there is no foundation for either of these defenses. It is urged here again, as it was in support of the defense under the statute of limitations, that the purchases of outstanding titles were made by way of compromise and to buy peace. To what has already been said on that subject it may be added that there is no evidence to this effect, unless it may be deduced from the recitals in the deeds that the defendants held the lands adversely against the grantors; and that was not true, either in fact or in law, was held by this court in 42 Fed. Rep. at page 609. Against the recitals is the significant averment in the answer that those purchases were made "without knowledge of the existence of further claims," and "without notice of the claims of these complainants, or their alleged ancestors in title, or either of them." Thus it appears that the understanding was that Lincoln and Smith, as trustees, should buy up all outstanding claims of the Barr heirs, and that the intention was in that way to secure to themselves a complete title in fee. These facts evidence the recognition by the defendants that they were holding in subserviency to the outstanding titles in fee, as clearly as if their explicit avowal thereof were established by proof, and they leave absolutely no ground for the claim that a grant to the defendants is to be presumed. The defense of laches, in our opinion, altogether fails. As we have seen, all the parties complainant came into court within the period of the statute of limitations, and there is nothing shown whereby they can be charged with such neglect of their alleged rights, or with such delay in asserting them, as to operate as a bar.

The determination of this cause, then, depends upon the decision of the questions of fact relating to the heirship of the complainants and the cross-complainants; and, first, who were the sisters and brothers of William Barr, Sr., who it is admitted were heirs of Mary Jane Barr?

William Barr, Sr., was a native of Chambersburg, Pa. He removed to Cincinnati, Ohio, where he died in 1816. It is clear from the testimony that he and his brothers and sisters were reared in eastern and central Pennsylvania. There is practically no dispute that the brothers and sisters were Robert Barr, of Westmoreland county, Pa.; John Barr, of Franklin county, Pa.; Andrew Barr, Samuel Barr, Jane Barr Mewhirter; and Mary or Sarah Barr Grafton. The deposition of Maria Bigelow was taken in proceedings to perpetuate testimony under a petition filed in the court of common pleas of the county of Hamilton on the 29th of June, 1858, by Ephriam Morgan, Mary V. Woods, (widow and devisee of Dr. William Woods, son-in-law of Ephriam Morgan,) Patrick Considine, John Young and wife, B. Henry Carter, Archbishop Purcell, and James T. Morgan, alleging the conveyance of the entire tract by Maria Bigelow to Ephriam Morgan and Lot Pugh, and the subsequent conveyance by Pugh to Morgan of all his interest and title therein, and the still later conveyance by Morgan to his co-petitioners; that

Ephriam Morgan by his deed became possessed of the life-estate of Maria Bigelow, and that under the statute of descent then in force in Ohio the remainder of said estate was vested in the brothers and sisters of William Barr, Sr., deceased, formerly of Chambersburg, Pa., and their descendants, by inheritance from Mary Jane Barr, daughter of Maria Bigelow, and John M. Barr, her then husband, and granddaughter of William Barr, Sr.; and that it was necessary to take the deposition of Maria Bigelow as to matters set forth in said petition, and in the interrogatories therein propounded.

Her deposition was taken on the 12th of August, 1858. A certified copy, together with a copy of the proceedings by virtue whereof it was taken, is an exhibit to the amendment to the second amended bill, and is admitted by the answer. It is also part of the record, as an exhibit of Lessee of Poor v. Considine, put in evidence by defendants, and competent as a muniment of title. It is objected now that it is not admissible unless competent as a declaration, and that it is not competent as a declaration, because Maria Bigelow, being the widow of John M. Barr and daughter-in-law of William Barr, Sr., was related by affinity, and not by consanguinity, and that her declarations are not, in substance or form, with respect to her husband or his immediate family, but with respect to the brothers and sisters of William Barr, Sr., her father-in-law, and their descendants. Wherefore, say counsel, if the house of lords in the Shrewsbury Peerage Case, 7 H. L. Cas. 25, excluded he declaration of the father-in-law with regard to his son-in-law, it is difficult to see on what principle the declaration of the daughter-in-law with regard, not to her father-in-law, but to his brothers and sisters and their descendants, is competent. They also object that it is not competent as a deposition inter partes, for the reason that the present claimants were neither parties nor privies to the suit to perpetuate the testimony, and that there must be mutuality. But this deposition was taken under a statutory provision, the same as now found at section 5878 of Smith and Benedict's Ohio Statutes, wherein it is provided that depositions taken under a petition to perpetuate testimony may be given in evidence by either party, or their privies or successors in interest, when the witnesses are dead or insane, or when their attendance for oral examination cannot be obtained. The petition under which this deposition was taken. was, as it states, against all the persons known to the petitioners, or believed to be interested in the subject-matter thereof, and included, as is admitted in the answer of Archbishop Elder, all the direct descendants of William Barr, Sr., then known to the petitioners. It It is not necessary to give the names of the defendants, who were some 26 in number.

By virtue of section 858 of the Revised Statutes of the United States, the provisions of section 5878 of the Revised Statutes of Ohio apply in this cause; and, without stopping to consider the question whether Maria Bigelow's testimony would be competent as a declaration, it is sufficient. to say that it is made competent by the statute as a deposition. She testifies that William Barr, Sr., had brothers John, Robert, and Samuel, and, she thought, a brother named Andrew, who she thought went

to Kentucky, but of this she was not certain; and that he had two sisters, one named Jane, who married a McWhirter, and the other she thought was named Sarah, and married a Grafton, and went to Natchez, Miss. Susan McElroy, granddaughter of Jane and Andrew, who were brother and sister, respectively, of William Barr, Sr., testifies in her deposition taken February, 1884, in the case of Robert Barr v. David Chapman et al., (Hamilton common pleas,) and stipulated into the evidence in this cause, that the brothers and sisters of William Barr, Sr., were Andrew, Samuel, John, Robert, Polly Grafton, and Jane Mewhirter. She says that Polly Grafton (Polly being, according to Webster, a variation from Molly, for Mary) was a sister, and that she had a family; that they have it in some of the papers Sally, but her name was Polly. John Barr, of Columbus, Ohio, grandson of John Barr, brother of William Barr, Sr., testifies that his grandfather had brothers William and Samuel, and one whose name he understood to be Robert. In the agreed statement of facts which is part of the record in Lessee of Poor v. Considine, the brothers and sisters of William Barr are given as Samuel Barr; John Barr; Robert Barr; and Andrew Barr; Jane, married to McWhirter; and Sarah, married to W. Graften. There is no controversy as to the identity of Jane Mewhirter as a sister of William Barr, Sr.; the defendants in possession having acquired title to her interest by purchase from her heirs. John Barr testifies that Mrs. Grafton was a sister of William Barr, Sr.; that he had heard his father speak of her husband as Daniel Grafton; that they lived in Maryland, or at least in a slave state, and removed to Natchez, Miss. His testimony is, further, that his father told him that two cousins of his, named Grafton, came to his house in Pennsylvania, and remained overnight on their way to Mississippi, where they were about to buy land, and that he spoke of Daniel Grafton and brother or brothers. Thomas Grafton, of Natchez, Miss., grandnephew of Daniel Grafton, Sr., testifies that Daniel Grafton came there some time in the 1780's; that he was a native of the county of Antrim, Ireland, and left home before he married; that he came probably to Pennsylvania, was married, and had several children when he came to Natchez. He knows nothing of the name of Daniel Grafton's wife, excepting that she was called Mary; never heard of his marrying more than once. Mrs. Jane Moore, of Natchez, Miss., sister of the last witness, testified that she knew that the wife of Daniel Grafton, Sr., was Mary Barr; that she heard her grandmother speak of her frequently as Mary Barr; that there was no other family of Graftons in Natchez or vicinity; that her grandmother disliked Daniel Grafton; and that witness remembered well that she spoke of them as "Old Dan and Mary Barr." Laura O. Henley, crosscomplainant, testifies that she is the daughter of John Barr Grafton; that her father told her that his grandfather was Daniel Grafton, and his grandmother Mary Grafton; and that he bore his grandmother's maiden name, Barr. There is also shown in evidence a copy of a deed dated March 1, 1804, to Mary Grafton, widow of the late Daniel Grafton, for lots in Natchez, Miss.; also, copy of deed from Mary Grafton, widow of the late Daniel Grafton, for the same lots. Upon this evidence we think