UNITED-STATES CIRCUIT COURT. 
 
 NORTHERN DISTRICT OF ILLINOIS. 
 
 IN CHANCERY. 
 
 OCTOBER TERM. A. D. 1885. 
 
 GILBERT D. MILLSPAUGH 
 
 TS. 
 
 THUS. C. McEVVEN, 
 MILTON McEWEN. 
 
 AND 
 
 THE TRUSTEES OF THE PULLMAN LAND ASSOCIATION. 
 
 GENERAL AND SPECIAL DEMURHER TO THE 
 BILL OF COMPLAINT. 
 
 SANDERS & HAYNES, 
 FOR THOS. C. AND MILTON McEwEN. 
 
 SPRINGFIELD, ILL.: 
 
 H W. KOKKEK, STATE PRINTER AND BINDT.K. 
 
 1885 
 
UNITE!) STATES CIRCUIT COURT. 
 
 NORTHERN DISTRICT OF ILLINOIS. 
 
 IN CHANCERY. 
 
 OCTOBER TERM, A. D. 1885. 
 
 GILBERT D. MILLSPAUGH 
 
 vs. 
 
 THOS. C. McEWEN, 
 MILTON McEWEN, 
 
 AND 
 
 THE TRUSTEES OF THE PULLMAN LAND ASSOCIATION. 
 
 GENERAL AND SPECIAL DEMURRER TO THE BILL OF 
 
 COMPLAINT. 
 
 TITLE TO THE LAND IN CONTROVERSY. 
 
 The substantial averments as to the title of the 160 acres of 
 land in controversy are as follows : 
 
2 
 
 In the war of 181 V 2, Henry Millspaugh was a private in the 
 army of the United States, and under the laws of Congress was 
 entitled to a land warrant, granting to him 160 acres of govern- 
 ment land. Henry Millspaugh was never married, nor did he 
 ever apply for or receive his land warrant. But dying prior to 
 1847, intestate, left as his only heirs David Millspaugh, his 
 brother, and Christina, his sister, who, in 1803, married William 
 Lynn. All of these parties at this time lived in Yates county, 
 New York. 
 
 On June 17, 1847, a land warrant for 160 acres of the public 
 lands was in due form of law issued from the land office of the 
 United States in the names of David Millspaugh and Christina 
 Lynn, as the only heirs at law of Henry Millspaugh. 
 
 That on August 30, 1849, said land warrant was located 
 through the United States land office at Chicago, upon the 
 southeast quarter (S. E. ) of section fifteen (S. 15), township 
 thirty-seven north (T. 37 N.), range fourteen east (E. 14 E.) of 
 the third principal meridian (3d P. M.), in Cook Co., Illinois, 
 which is the land in controvery, and subject to entry at that 
 time. 
 
 On November 23, 1849, letters patent from the United States 
 were issued jointly to David Millspaugh and Christina Lynn. 
 
 July 1, 1849, David Millspaugh died, testate, and seized and 
 possessed of an undivided half interest in said land warrant, 
 leaving as his only heirs at law his widow and five children, 
 to-wit : Nancy, Epha, Frances, William S. and Archibald, and 
 one grandson, Wm. F. Thompson, the only heir at law of Jane 
 Thompson, a child of the said David Millspaugh, who died in 
 830. 
 
The bill avers that the \\ ill of David Millspaugh was duly made 
 and published in form sufficient to pass real estate under the 
 laws of Illinois. 
 
 That in said Will, David Millspaugh devised and bequeathed to 
 his son Archibald all other real estate and lands of any and 
 every description of which he might die seized ; and appointed 
 said Archibald executor of the Will. 
 
 September 3, 1849, the Will was duly proved and admitted to 
 probate, as a Will of real and personal property, according to the 
 laws of the State of New York, in the Surrogate's Cqurt, in the 
 County of Yates and State of New York, a court having jurisdic- 
 tion of the matter, and recorded in Cook Co., 111., in 1884. 
 
 In the year 1851, Jane Millspaugh, widow of David, died, and 
 Archibald Millspaugh and family moved to Michigan. 
 
 May 29, 1856, Archibald Millspaugh (who had married), with 
 his wife and William S. Millspaugh and his wife, executed and 
 delivered to the defendants, Thomas C. McEwen and Milton 
 McEwen, a quit-claim deed of that date, of and relating to the 
 land in Cook Co., Illinois, for which said Patent had been issued. 
 
 That in the same year, 1856, Thomas C. McEwen and Milton 
 McEwen, obtained quit-ctaim deeds from the other hiers of 
 said David Millspaugh for their several supposed interests as 
 heirs at law of said David Millspaugh. That at the time of the 
 execution of said deeds, from the recitals therein, Frances ap- 
 pears to be a married woman, and her Imsband does not join in 
 the deed. That from Wm. F. Thompson and wife the said 
 McEwens obtained, about the same time, a quit-claim deed, pur- 
 porting to be for the south-r.sf quarter (S. W. 5) of section fifteen 
 
(S. 15), township thirty-seven north (T. 37 N.), range fourteen 
 east (E. 14 E.), of the third principal meridial (3d P. M.), in Cook 
 Co., Illinois. 
 
 That on May 26, 1856, the said Thomas C. and Milton MeEwen 
 obtained a quit-claim deed from Christina Lynn, whose husband, 
 Win. Lynn, was then living, in the words and figures following, 
 to-wit : 
 
 "This indenture, made this twenty-sixth clay of May, in the 
 year of our Lord one thousand eight hundred and fifty-six, wit- 
 nesseth that I, Christina Lynn, sister and heir at law of Henry 
 Millspaugh, deceased, w r ho was a recruit of Lieutenant T. W. Den- 
 ton, of Thirteenth Regiment, United States Infantry, war of 1812, 
 with Great Britain, of the County of St. Clair and State of Michigan, 
 party of the first part, in consideration of the sum of forty -three 
 dollars in hand paid by Milton and Thomas C. McEwen, of the 
 County of Orange and State of New York, party of the second 
 part, the receipt of which is hereby acknowledged, do hereby re- 
 lease, grant, bargain and quit-claim unto the said party of the 
 second part, their heirs and assigns, forever, all her right, title, 
 claim and interest in that certain tract of land granted by the 
 United States unto David Millspaugh and Christina Lynn, the 
 brother and sister and only heirs at law of Henry Millspaugh, 
 deceased, as follows, to-wit : 
 
 "The southeast quarter of section numbered fifteen (_5), in town 
 ship numbered thirty-seven (37), north of range numbered four- 
 teen (14), east, in the district of lands subject to sale at Chicago, 
 State of Illinois, containing one hundred and sixty acres, by 
 letters patent bearing date of November twenty-third, in the year 
 of our Lord, one thousand eight hundred and forty-nine, and 
 founded upon warrant number 27,495, reference being made to 
 said pantent will more fully appear. 
 
 "To have and to hold the said premises with all the appurte- 
 nances thereunto belonging, or in anywise appertaining, to their 
 only proper use, benefit and behoof of said parties of the second 
 part, their heirs and assigns, forever. 
 
 "In witness whereof, the said grantors have hereunto set our 
 hand and seals the day and year first above written. 
 
 her 
 
 "CHRISTINA + LYNN, [SEAL] 
 
 mark 
 
 "WILLIAM LYNN. [SEAL] 
 
 "Signed, sealed and acknowledged in presence of 
 
 "MARY LYNN, 
 "OBED SMITH." 
 
"STATE OF MICHIGAN, { 
 "COUNTY OF ST. CLAIR. \ 
 
 "On this twenty-seventh day of May, A. P. 1856, before me, a 
 Justice of the Peace in and for said County of St. Clair, personally 
 came Christina Lynn and William Lynn, her husband, known 
 to me to be the persons who executed the foregoing instrument, 
 and acknowledged the same to be their free act and deed. And 
 the said Christina Lynn having been by me privately examined, 
 separate and apart from the said husband, and fully understand- 
 ing the contents of the foregoing instrument, acknowledged that 
 she executed said deed freely and without any force or compul- 
 sion from her said husband, or from any one. 
 
 "OBED SMITH, 
 "Justice of the Peace." 
 
 In the year 1871, Archibald Millspaugh died intestate, leaving 
 as his only heirs at law his widow, Sarah B. Millspaugh, and the 
 complainant, Gilbert D. Millspaugh. On February 17, 1877, Sarah 
 E. Millspaugh died. 
 
 In 1875, Thomas C. McEwen executed and delivered a deed 
 purporting to convey to Milton McEwen an undivided half inter- 
 est in the N. W. 1 and N. E. of S. E. of Sec. 15, T. 37, north 
 range fourteen east of 3d P. M., in Cook Co., Illinois, and at 
 about same time Milton McEwen executed and delivered to 
 Thomas C. McEwen an undivided half interest in and to the 
 S. E. ^ and S. W. \ of same quarter section. 
 
 That on March 12, 1880, said Milton McEwen and wife exe- 
 cuted and delivered to Huntington W. Jackson warranty deed, of 
 common statutory form, purporting to convey to said Jackson 
 the North half (N. ) of the southeast quarter (S. E. ) of section 
 fifteen (S. 15), township 37 north (T. 37 N.), range fourteen east 
 (R. 14 E.), of the third principal meridian, in Cook County, Illi- 
 nois. 
 
And on March 15, 1880, the srJd Thomas C. McEwen executed 
 and delivered to said Huntington W. Jackson a similar deed, of 
 like form, purporting to convey to said Jackson the south half 
 (S. ) of said quarter section. 
 
 That in May, 1880, said Huntington W. Jackson executed and 
 delivered to Geo. M. Pullman a quit-claim deed, purporting to 
 convey to said Pullman all the grantor's interest in and to the 
 whole of said quarter section. 
 
 That the said Geo. M. Pullman and wife executed and delivered 
 to the defendant, the Trustees of the Pullman Land Association, 
 a quit-claim deed, purporting to convey to said defendant all 
 their interest in and to that portion of said quarter section com- 
 prised within the following metes and bounds, to- wit : 
 
 "Beginning at the S. W. corner of the S. E. } of said Sec. 15, 
 running thence north along the west line of the said S. E. ^ of 
 said Sec. 15 to the N. W. corner of said quarter section ; thence 
 east along the north line of the said S. E. ^ of said Sec. 15, to 
 the west line of the Illinois Central Railroad right of way ; thence 
 southwesterly along the west line of said right of way to the south 
 line of said Sec. 15 ; thence w, st along said south line of said Sec. 
 15 to the place of beginning, containing 78 acres, more or less." 
 
 Under the above named Patent and subsequent deeds, the 
 Trustees of the Pullman Land Association have held undisputed 
 possession, and occupied said land, and erected large and very 
 extensive manufactories, and the large town of Pullman has been 
 built up during this undisturbed possession and occupation since 
 the date of their deeds in May, 1880. 
 
 THE PRAYER OF THE BILL. 
 
 . The relief sought for by the bill of complaint is, that the deeds 
 of conveyance from Archibald Millspaugh, and the other heirs of 
 David Millspaugh, to Thomas C. McEwen and Milton McEwen 
 
and wife, to Hunting-ton W. Jackson ; and from Huntington W. 
 Jackson to George M. Pullman, and from George M. Pull- 
 man and wife to Trustees of the Pullman Land Associa- 
 tion, and all title or claim of title of said Trustees of 
 the Pullman Land Association to the said undivided half of 
 said land (16P acres), by virtue of said deeds, be declared in- 
 valid and as of no effect against the rights of the complainant. 
 That the Trustees of the Pullman Land Association may, under 
 the direction of the Court, lender a full and perfect account of 
 all rents and profits derived by it from the said tract ; and that 
 the defendant, the Trustees of the Pullman Land Association, 
 and all persons claiming under it, may be perpetually enjoined 
 from setting up, or asserting, or attempting to put in force, or 
 use any right, title or interest in or to said land, or any part 
 thereof, under said deeds or otherwise ; and that the complainant 
 may be adjudged and declared the true, equitable and beneficial 
 owner of said tract of land now claimed and possessed, as afore- 
 said, by the said Trustees of the Pullman Land Association, and 
 be entitled to have and receive the legal title thereto in fee ; and 
 for such other and further relief as equity may require. 
 
 ARGUMENT ON DEMURRER. 
 
 The grounds in complainant's bill, on which this court of equity 
 is asked to cancel the deeds through which the Trustees of the 
 Pullman Land Association hold and occupy the land in con- 
 troversy, are, first, that the deeds to the McEwens were not suffi- 
 cient in form and manner of execution to pass the title to the 
 lands in controversy, to the exclusion of the interests of the com- 
 plainant; and, second, that the deeds, whether sufficient or not 
 in form and execution to pass the title to the lands described, 
 were obtained from the grantors by misrepresentation and fraud 
 
8 
 
 on the part of the grantees, Thomas C. and Milton McEwen ; 
 and that their grantees, Huatington W. Jackson, Geo. M. Pull- 
 man, and the Trustees of the Pullman Land Association, had 
 knowledge of the supposed misrepresentations and fraudulent 
 acts of their grantors, Thomas C. and Milton McEwen. 
 
 FIRST AS TO THE SUFFICIENCY OF THE DEEDS IX FORM AND 
 EXECUTION. 
 
 The legal title of the whole 160 acres comes direct from the 
 United States Government to the heirs of Henry Millspaugh, to- 
 wit., David Millspaugh and Christina Lynn, to whom the land 
 warrant was issued in June, 1847, located in July, 1849, and 
 patent issued Nov. 30, 1849. 
 
 Here the chain of title divides, and an undivided half of the 
 160 acres descends, either by the Will of David Millspaugh, pro- 
 bated according to the laws of New York, September 3, 1849, to 
 the TifMSHf, Vivliilrctid Millspaugij, a son, and the sole executor, 
 as real estate; or it passes, by process of law, to all of the heirs 
 of David Millspaugh, to-wit., five children : Nancy, Epha, Fran- 
 ces, William S., Archibald, and a grandchild, W'm. F. Thomp- 
 son, a son of Jane Thompson, a daughter of David Millspaugh, 
 who died in 1830. In either event, if the deeds are held valid, 
 the title merges in Thomas C. and Milton McEwen, through quit- 
 claim deed of Archibald Millspaugh and wife, and William S. 
 Millspaugh and wife, of date May 26, 1856, and by quit-claim 
 deeds from all the other heirs at law of David Millspaugh, in the 
 year 1856, executed and delivered to Thomas C. . and Milton 
 McEwen; the wife of David Millspaugh having died in 1851, 
 thereby leaving only the five children and one grandchild as sole 
 heirs of his property. 
 
9 
 
 The land warrant issued in June 17, 1847, to David Millspaugh 
 and Christina Lynn, jointly, (if considered real estate) the un- 
 divided half interest must have passed by the will to Archibald 
 Millspaugh, as devisee, as the averments of the bill are, that 
 "Da citl M'dhjxdtfih, on July 1, 1849, died seized and possessed of 
 an undirided half interest in MI id land l:onnty warrant" 
 "That in and by his last will and testamtfit, theretofore dnly made 
 and jnthlished in form sufficient to pass real estate under the laws of the 
 State of Illinois, after making therein various other devises and be- 
 quests, irliicli do not concern or affect the aforesaid land bounty or land 
 warrant, the, said Darid Millspaugh derised and beqnethed to his said 
 son, Archibald, all other real estate and lands of any and every de- 
 scription of ^vhich he might die seized." (Page 2, lines 1 to '20, of bill.) 
 
 Here the complainant admits that the Will was in due form of 
 law, legally probated according to the laws of the State of New 
 York, for the Will was made and published in Yates county, New 
 York, and that it was sufficient in form to pass real estate under the 
 laws of the State of Illinois. 
 
 The only question that arises on this branch of the case is, 
 whether this land warrant, located in August, 1849, and on which 
 Letters Patent issued November 30, 1849 ; was real estate, and 
 passed under the terms of the Will above stated. 
 
 Section 2448, U. S. Revised Statutes, is as follows, to-wit : 
 
 "Where patents for public lands have been or may be issued, 
 in pursuance of any law of the United States, to a person who 
 had died, or who hereafter dies, before the date of such patent, 
 the title to the land designated therein shall inure to and become 
 vested in the heirs, devisees or assignees of such deceased 
 patentee, as if the patent had issued to the deceased person dur- 
 ing life." 
 
 This statute has reference to the manner of descent of the title 
 to lands described in the patent on the death of the party apply- 
 ing for the same before it issues, and settles the question as to 
 
10 
 
 icliat kind of piopcrty ii is,- and in settling that question, it also 
 settles the question of hoic it shall pass, whether by the Will of 
 David Millspaugh to Archibald Millspaugh, or by process of law 
 to the heirs. 
 
 Under this statute, as to the descent of the land involved, it is 
 to be considered as if the patent had been issued to David Mills- 
 paugh and Christina Lynn in the lifetime of David Millspaugh. 
 It did, in fact, issue in their names, but after David's death, and 
 during her life time. 
 
 Under this statute, and the decisions of the State and United 
 States Courts, we think this patent must be considered real 
 estate, and if so, the half interest of David Millspaugh passed 
 under the Will to Archibald Millspaugh. 
 
 "It is not doubted that a patent appropriated lands. Any 
 defects in the preliminary steps which are required by law, are 
 cured by the patent. It is a title from its date, and has always 
 been held conclusive against all those whose right did not com- 
 mence previous to its emulation." 
 
 Hooiiagle et al. vs. Anderson, 1 Wheat. 211. 
 
 "The patent appropriates the land and gives the legal title to 
 the patentee." 
 
 Boardman vs. Reed, 6 Pet. 328. 
 White vs. Burnley, 20 How. 280. 
 
 "In Virginia, the patent is the completion of the title, and es- 
 tablishes the performance of every prerequisite." 
 
 Stringer et al. vs. The Lessee of Loring et al., 3 Pet. 241. 
 
 "A patent appropriates the land called for, and is conclusive 
 against rights subsequently acquired.'' 
 
 Bouldin et nx. vs. Massie's Heirs, 7 Wheat. 149. 
 
 Brush vs. Ware el al., 15 Pet. 106. 
 
 Taylor < Qtiarlees vs. Brown, o Crunch, 233. 
 
11 
 
 The Statutes of the United States make a distinction between 
 land warrants and patents, as to the matter of descent. In sec- 
 tion 2444, U. S. Revised Statutes, we find * * * "And all 
 military bounty land icarru-nts, issued pursuant to law, shall be 
 treated as personal chattels, and may be conveyed by assignment 
 of such widow, heirs or legatees, or by the legal representatives 
 of the deceased claimant, for the use of such heirs or legatees 
 only." 
 
 "Equity treats that as done which is agreed to be done, so that 
 money, which according to a Will or agreement is to be invested 
 in land, is regarded, in equity, as real estate, and land which is 
 to be converted into money, is regarded as money accordingly." 
 
 1 Washb. K. P. 31, 4th ed., sec. 34. 
 Seymour vs. Frees, 8 Wall. 214. 
 
 If this doctrine prevail, this land warrant must, we think, be 
 considered real estate, as it was an agreement and contract on 
 the part of the United States Government to give the parties 
 named 160 acres of government land for the services rendered by 
 their ancestor in the army of the United States. A land war- 
 rant refers only to land. It is a contract to give land, and noth- 
 ing else. If this principle of equity prevails, this court must treat 
 this agreement or contract by the Government as having been 
 completed, and the land located, and the patent issued ; and if so, 
 there can be no doubt that the land was located and patent is- 
 sued and the land covered by it would pass by Will under such 
 terms as were used in this. 
 
 Archibald Millspaugh's interest, under this Will to the undi- 
 vided half of the 160 acres, was a vested estate, one -where there is 
 an immediate fixed right of present or future enjoyment. 
 
 I Washb. R. P. 34. 
 
12 
 
 The Government of the United States warranted so much 
 land, a fixed amount, for his present or future enjoyment, and the 
 fact that it was not then located did not render his vested estate 
 at all indefinite, or in any way uncertain. The location of the 
 warrant was a mere incident, to be performed by the officers of the 
 Government whenever called upon by the proper parties, and did 
 not in any way whatever affect the amount, or right to this vested 
 estate. The complainant uses the terms, "died seized and pos- 
 sessed of an undivided ha[f interest in said land bounty warrant;" 
 also, the terms, "devised and brqucthed." The term, "seizin" 
 and "possession," in fact necessarily implies possession, there 
 being no difierence between "seizin" and "possession," if the 
 possession is with the intent on the part of him who holds it to 
 claim a freehold. Yet there are distinctions in some of the ap- 
 plications of the words. Thus, though there may be a concur- 
 rent possession of the same lands by several persons, there can- 
 not be such concurrent seizin. 
 
 'Seizin is applied to estates of which there is no present pos- 
 session, such as remainders, meaning that the party has a fixed 
 vested right of future enjoyment." Moreover, the land may be, 
 for a time, vacant as regards possession ; but the seizin (cannot 
 at common law) be in abeyance or suspense, it must always be in 
 some one as a freeholder." 
 
 Abbott's Law Diet., Vol. 2, 457, 458. 
 1 Washb. E. P., 3, et seq. 
 4 Kent Com., 388, 389. 
 
 These terms refer to and are applied to real estate, and being 
 used by the complainant in his bill, in a proceeding on demurrer, 
 we have a right to accept his terms, and consider that under the 
 terms of the Will, this land warrant and patent, or the undi- 
 vided half of it, passed to Archibald Millspaugh, and by him 
 through his quit-claim deed to Thomas C. and Milton McEwen. 
 
13 
 
 If the interest of David Millspangh to the undivided half of the 
 land covered by the land warrant did not pass to Archibald 
 under the Will, then it remained a part of his estate, and passed 
 by process of law to all his heirs; and if their deeds are valid, 
 the title went to Thomas C. and Milton McEwen, through their 
 quit-claim deeds of May 26, 1856, and thereafter in the same 
 year. (Bill, p. 2, lines 33-40, and p. 3, lines 1-5.) 
 
 As to the averments (Bill, p. 3, lines 5-9) that the husband of 
 Frances did not join in her deed to the McEwens, made in 1856, 
 though the recitals therein indicate that at the time she was a 
 married woman, it is sufficient to say, that a good and sufficient 
 deed, executed in due form of law, has since been obtained for her 
 supposed interest, though it is difficult to see how this w r ould in 
 any way affect the supposed interest of the complainant. 
 
 The averments in reference to William F. Thompson and wife 
 (Bill, p. 3, lines 9-li) are, that about the same time, (May 26, 
 1856,) Thompson and wife made a quit-claim deed to the 
 McEwens for the aouih-icest quarter (S. W. ) of section fifteen, 
 (S. 15,) township thirty-seven north, (T. 37 N,) range fourteen 
 east, (R 14 E.) of the third principal meridian, (3d P. M.,) in 
 Cook county, Illinois. This deed evidently was made with the 
 intention of conveying the same land as the other heirs conveyed, 
 but was a inisdescription as to the quarter section only and subject 
 in equity to correction and discovered, undoubtedly, by the 
 investigations made for this suit. The description, in all other 
 respects, is correct, and the deed properly executed. 
 
 If our theory is correct, this Wm. F. Thompson had no interest 
 in the land, as it had passed by the Will of David Millspaugh to 
 Archibald Millspaugh, and by him, through quit-claim deed, to 
 the McEwens. 
 
14 
 
 The claim of title, in any view of the case, is therefore complete, 
 on the complainant's own showing, as far as the sufficiency of 
 the deeds and their lawful execution to the McEwens is concerned, 
 from all the heirs of David Millspaugh to his undivided half in- 
 terest in the land warrant and patent. 
 
 The undivided half interest of Christina Lynn in the land warrant 
 passes, by quit-claim deed of May 26, 1856, to Thomas C. and 
 Milton McEwen, and is set up, in haecverba, in complaints. (Bill, 
 p. 3, lines 15-30, and p. 4, lines 1-26.) 
 
 In the body of the deed the language is : 
 
 "This indenture, made this twenty-sixth day of May, in the 
 year of our Lord one thousand eight hundred and fifty-six : Wit- 
 nesseth, that I, Christina Lynn, sister and heir at law of Henry 
 Millspaugh, deceased, who was a recruit of lieutenant T. W. 
 Denton, of thirteenth regiment United State infantry, war of 
 1812, with Great Britain, of the county of St. Clair, and Slate of 
 Michigan, party of the' first part, in consideration of the sum of 
 forty-three dollars in hand paid by Milton and Thomas C. 
 McEwen, of the county of Orange, and State of New York, party 
 of the second part, the receipt of which is hereby acknowledged, 
 do hereby release, grant, bargain and quit-claim unto said party 
 of the second part, their heirs and assigns forever, all her right, 
 title, claim and interest in that certain tract of land granted by 
 the United States unto David Millspaugh and Christina Linn, 
 the brother and sister and only heirs at law of Henry Millspaugh, 
 deceased, as follows, to- wit: The south-east quarter section 
 numbered fifteen, (15) in township numbered thirty-seven, (37) 
 north of range numbered fourteen (14) east, in the district of 
 lands subject to sale at Chicago, State of Illinois, containing one 
 hundred and sixty acres, by Letters Patent bearing date of 
 November twenty-third, in the year of our Lord one thousand 
 eight hundred and forty-nine, and founded upon Warrant num- 
 ber 27,495, reference being made to said patent will more fully 
 appear. To have and to hold the said premises with all the ap- 
 purtenances thereunto belonging, or in anywise appertaining, to 
 their only proper use and behoof of said parties of the second 
 part, their heirs and assigns forever. 
 
15 
 
 
 
 "In witness whereof, the said grantors have hereunto set our 
 hands an i se ils the day and year first above written." 
 
 her 
 
 "CARISTINA x LYNN, [SEAL.] 
 
 mark. 
 
 "WILLIAM LYNN. [SEAL.] 
 "Signed, sealed and delivered in presence of 
 "MARY A. LYNN, 
 SMITH." 
 
 "STATE OF MICHIGAN, 
 COUNTY OF ST. CLAIR. 
 
 "On this twenty-seventh day of May, A. D. 1856, before nie, a 
 justice of the peace in and for said county of St. Clair, personally 
 came Christina Lynn and William i^ynn, her husband, known to 
 me to be the persons who executed the foregoing instrument, and 
 acknowledged the same to be their free act and deed. And the 
 said Christina Lynn having been by me privately examined, 
 separate and apart from her said husband, and fully understand- 
 ing the contents of the foregoing instrument, acknowledged that 
 she executed said deed fr< ely, and without any force or compul- 
 sion from her said husband, or from any one." 
 
 OBED SMITH, 
 "Justice of the Peace." 
 
 This deed is in the usual form, except that the husband's name 
 does not appear in the body of the deed : but he signs it, and it 
 is lawfully acknowledged by both husband and wife in the 
 presence of two witnesses, and one of the same name as the wife. 
 That this is a good and sufficient deed, as to its form and execu- 
 tion, we have no doubt, and that such deeds have been frequent- 
 ly upheld by courts of law and equity. 
 
 "It was once thought that the grantor should be named, as 
 such, in the deed. But this does not seem necessary, if the 
 grantor signs it. Thus, where a deed purports to be that of a 
 married woman, her name only appearing as grantor, but it was 
 signed by her and her husband, who acknowledged it, it was held 
 to be a good grant of the husband, as well as of the wife." 
 
 3 W T ashb. R. P., 4th ed , p. 266, Sec. 31. 
 
16 
 
 Elliott vs. Sleeper, 2 N. H. 525. 
 
 Perkins, Sec. 36, Co. Lit., 6a, Lord d; Seal's case, 
 Mod. 46. 
 
 "It is sufficient if the wife execute the deed in proper form, 
 and the husband assent to the same itt irriting upon the deed, though 
 he do not join in the execution." 
 
 Ingoldsby vs. Juan, 12 Cal. 564. 
 
 "In New York, the deed of a married woman may be good, 
 although her husband do not join with her in making it, if she 
 is examined separate and apart, and acknowledges the same." 
 
 Albany Fire Ins. Co. vs. Bay, (decided in 1850,] 
 
 4 Const., 9 S. C., Barb. 407. 
 Williard Heal Est. 392. 
 See also, 4 Greenl., Cruise Dig., 18 Note. 
 
 2 Kent's Com. 150-154. 
 
 "The statute (of Illinois) has not required that the name of the 
 husband or wife of the grantor shall appear in the granting clause, 
 or elsewhere in the body of the deed. Unless made so by the 
 statute, it is not imperative it shall appear. It is sufficient for a 
 valid relinquishrnent of horns lead that it is done in conformity 
 with the statute." 
 
 Ill 111. 212. (Sept., 1884.) 
 Deutzer vs. Walden, 30 Cal. 138. 
 Armstrong vs. Stovel, 26 Miss. 275. 
 
 "Where persons sign a bond, they are bound by it, though 
 their names do not appear in its body." 
 
 Smith vs Crooker, 5 Mass. 5iO. 
 Ahrend vs. Odiorne, 125 Mass. 50. 
 Seath vs. Bush, 61 Pa. St. 395. 
 Scheed vs. Seibschultz, 57 Ind. 
 Kursly vs. Schenberger, 5 Watts, 193. 
 
 A deed will be construed most strongly against the grantor. 
 
 3 Washb. E., p. 397, and citations. 
 2 Blackston's Com. 380. 
 
17 
 
 Every deed must, if possible, be made operative. Cases exist 
 in which almost every formal part of a deed has been dis- 
 pensed with. 
 
 Coke on Littleton, 7a. 
 
 Bridge vs. Wellington, 1 Mass. 219. 
 
 William Lynn had only an estate of curtesy in this land it be- 
 longed to his wife and as far as executing a release to the same 
 was concerned, it would be analagous to the release of the dower 
 interest of a married woman, the husband not being subject to 
 a separate examination by the magistrate who takes the acknowl- 
 ment. 
 
 A married woman, by "signing the deed, she joins in it," and 
 having done this, her dower is barred, if she takes the other steps 
 pointed out by the statute. The deed as to dower transfers no 
 title it only extinguishes a contingent right. This is so when 
 her name as grantor does not appear in the body of the deed, 
 nor naming her or her dower in any way whatever. If properly 
 examined, as the statute requires, before the acknowledging offi- 
 cer, the dower is barred. 
 
 Johnson vs. Montgomery, 51 111. 185. 
 
 In the beginning of a deed for separate real estate of a wife, 
 where the parties are first stated, "A. B." in her own right, wife 
 of "C. D.," was named in the clause of the deed as the party 
 making the grant, but in the clause releasing homestead, the 
 husband was named as "the party of the first part," and so in 
 the covenanting and attesting clauses, and he also signed and 
 acknowledged it as his and his wife's deed. "Held, that even if 
 the statute of 1845 required the husband to join in the granting 
 
18 
 
 clause, that fact was sufficiently shown by the deed taking the 
 whole of it together." 
 
 Miller et al. vs. Shaw et al., 103 111. 277. See p. 291. 
 Under the statute of 1845, a married woman might convey 
 lands by joining with her- husband in a deed therefor properly 
 acknowledgad and certified ; but her acknowledgment was the oper- 
 ative act to pass the title and not delivering the deed, and a substan- 
 tial compliance with the statute required. 
 
 Hogan vs. Hogan, 89 111. 428. 
 
 From the above citations, and many others to the same effect, 
 which could be produced, it appears to be immaterial whether the 
 name of the husband or wife appears in the body of the deed. The 
 operative part of the instrument, to pass the title, is the signature. 
 and the acknowledgment, according to the required statutory form, 
 
 In the case at bar there can be no question but that botli liu*lrnid 
 and wife signed and sealed the deed in the presence of two sub- 
 scribing witnesses, and they both acknowledged it the wife being 
 examined separate and apart from her husband, in full and com- 
 plete accord, in every particular, with the requirements of the 
 statute. What more could be done to make this a perfect deed 
 and to pass the title, we cannot conceive. 
 
 There is no averment of fraud or imposition practiced upon 
 grantors in procuring their signatures and seals, nor that the 
 grantors were legally incompetent to make such a deed. 
 
 "A deed cannot be avoided in a court of law except for fraud 
 in its execution, or imposition practiced upon the grantor in pro- 
 curing his signature and seal a/n<m/ irJiirh goes to the question, 
 whether the deed ever had any legal existence. The law does not 
 reach the cases of deeds procured by undue influence over the 
 grantor, if he be of legal capacity. The only relief in such cases 
 is in equity." 
 
 3 Washb. R. P., 281, sec. 18. 
 
 Truman vs. Lore, 14 Ohio St. 155. 
 Hartshorn vs. Day, U. S. 19; How. 223. 
 
19 
 
 In order to overturn a certificate of acknowledgment, a clear 
 case of fraud, or want of jurisdiction in the office, muat be made 
 out. The facts relied upon to avoid the acknoAvledgment, must 
 be pleaded. 
 
 Marsh vs. Mitchell, 26 N. J. Eq. 497. 
 
 A mere preponderance of fraud will nor suffice ; it must be 
 clear, strong and assuring. 
 
 Hughes vs. Coleman, 10 Bushn. 248. 
 
 The uncontroverted evidence of the grantor has been held in- 
 sufficient to overcome the certificate. 
 
 Lickmun vs. Harding, 65 111. 505. 
 Graham vs. Anderson et al., 42 111., 514. 
 Federal Reporter, vol. 18, p. 368. 
 
 Under the above authorities and principles of both law and 
 equity, we think the sufficiency of this deed in form and execu- 
 tion is established beyond a doubt, and that under it, the undi- 
 vided half interest of Christina Lynn in the land warrant 
 passed to the McEwens through her deed, joined by her husband, 
 of date May 26, 1856. 
 
 This brings the title of the whole 160 acres into the McEwens, 
 as far as the sufficiency of the deeds in form and execution is 
 concerned, and must stand, we think, unless fraud on the part of 
 the McEwens, by way of undue influence and imposition, over the 
 grantors can be established. All subsequent grantees of the 
 McEwens received deeds made and executed as the law requires, 
 and there are no averments in complainant's bill of their insuffi- 
 ciency, either in form or execution. 
 
20 
 
 THE QUESTION OF 
 
 Fraud, in this case, can only be maintained, if at all, as we 
 have already shown, on the ground of undue influence and impo- 
 sition over the prior grantors on the part of the McEwens. Under 
 this branch of the case, the averments of the bill (p. 6, lines 
 1-40, et seq.) are, that Thomas C. and Milton McEwen were 
 purchasing land warrants and locating the same, and obtaining 
 patents therefor for claimants in Orange county, New York. 
 
 That in 1846, an agreement was made with David Millspaugh 
 and Christina Lynn, heirs at law of Henry Millspaugh, to obtain 
 a land warrant, locate and procure a patent from the government, 
 they, the McEwens, paying all fees to the government, and costs 
 in procuring the land warrant for 160 acres of land ; and for their 
 services and fees and costs, and expenses paid by them, the 
 McEwens were to have one-half of the land covered by the patent. 
 They are charged with falsely representing to David Millspaugh 
 and Christina Lynn, that fees to the government had to be paid 
 to procure such warrant and patent from the government ; that 
 said David and Christina were simple, unlearned country folk, 
 farmers, and very little acquainted with business transactions; 
 that Christina could not write, and was 70 years old, and David 
 71 years old; and both infirm in mind and body, and that neither 
 of them had the slightest acquaintance with the laws of Congress, 
 relating to military bounty lands, or the rights of soldiers or 
 their heirs under said laws. 
 
 The above is the substance of the averments as to the agree- 
 ment and the procuring of the same by the McEwens from David 
 Millspaugh and Christina Lynn, for procuring the land warrant 
 and the patent to the land involved in this case. 
 
21 
 
 In this there are no traces of fraud that can in any way affect 
 this title. The whole transaction was natural and legal. The 
 McEweus, on the averments of the bill, made no serious mis- 
 representations, only their opinions, and were paying fully all 
 that such interests at that time were worth; they paid their 
 money for all necessary costs, fees and expenses, and there were 
 then and now considerable sums of legetimate expenses attend- 
 ing the procuring of land warrants, making proof of the claim 
 of the soldier and of heirs, and in locating the land, and in procur- 
 ing the patent ; and they took all the risk of any failures that might 
 occur. The bill admits that the McEwens were to have one- 
 half of the land covered by the patent for their expenses paid in 
 procuring it. The cash expenses required at that time to be 
 paid by the McEwens, and which they did actually pay in 
 procuring this patent, according to the averments of this bill, 
 would have purchased 160 acres of government land, and more 
 
 t3O. 
 
 Suppose David Millspaugh and Christina Lynn had been 
 young say like the complainant, 37 years of age, and lawyers 
 or judges, sound of mind and in body, instead of simple farmers, 
 and thoroughly acquainted with all the laws of Congress and the 
 rights of soldiers and their heirs under said laws, would it liare 
 made any difference!- Would they not at that time, and even now, 
 make similar agreements ? and have not such agreements been 
 held good time and again by all courts ? 
 
 The rule lai'l down by Story is as follows : "Still, however, 
 there may be such an unconscionableness or inadequacy in M 1 tar- 
 gain, as to demonstrate some (/ross imposition or undue influence ; 
 and in such cases courts of equity ought to interfere, upon the 
 satisfactory ground of fraud. But then such unconscionableness 
 or such inadequacy should be made out as would (to use an ex- 
 pressive phrase) shock the, conscience and amount in itself to con- 
 clusire and decixirc eridi'iice of fraud." 
 
22 
 
 Story's Equi-Jarisprudence Vol. 1, 12th eel p. 241, Sec. 2.6, 
 and citations. 
 
 There is nothing whatever in the action of the McEwens in 
 procuring the agreement from the Millspaughs that "shocks the 
 conscience , and that amounts in itself to conclusive end decisive evi- 
 dence of fraud." 
 
 On a fair viewing of the circumstances under which this 
 agreement was made by the McEwens and David Millspaugh and 
 Christina Lynn, there does not appear any fraud or misrepre- 
 sentations, or imposition or undue influence on the part of the 
 McEwens, that could possibly induce any court to annul the 
 agreement, even in an action between the parties themselves, 
 much less to give them any consideration whatever in such a 
 proceeding as the present bill of complaint. 
 
 The complainant in the bill (p. 7, et seq.) further avers that 
 the McEwens, in pursuance of the agreement made in 1846, with 
 David Millspaugh and Christina Lynn, obtained the land warrant 
 in June 17, 1847, located it on lands subject to such entry in Cook 
 County, Illinois, August 30, 1849, and procured a patent from 
 the government November, 23, 1849, in the names of David Mill- 
 spuugh and Christina Lynn, jointly, as the sole heirs of Henry 
 Millspaugh; that they did not communicate this fact to David 
 Millspaugh, who died July, 1, 1849, in his lifetime, nor to Christina 
 Lynn, until in 1856 ; but obtained the said land warrant and 
 patent from the land commissioner of the government, and kept 
 the same in their possession. 
 
 That the McEwens had employed a real estate lirni in Chicago 
 as their agents in the maHer of locating the land and obta ; ning 
 the patent and in the payment of taxes on the land after it was 
 
23 
 
 located; that these agents delivered the patent to the Me E wens 
 in January, 1850, wit bout making known to Christina Lynn or 
 the executor of David Millspaugh's Will, or any of his heirs, the 
 fact that the land had been located and the patent issued, though 
 their names and addresses were well known. 
 
 That the land was assessed in the name of the McEwens and 
 taxes paid by them ; that in 1849 and 1850 a colony located near 
 the land and established a flourishing village, and that in 1852 
 the Michigan Central and Illinois Central Eailroads, coming 
 from the east and south, built their roads through this land, and 
 formed a junction within one half mile south of this quarter sec- 
 tion, which it was supposed would become a place of importance, 
 the Illinois Central Railroad Company reserving from sale a 
 quarter section of land adjoining the land involved in the bill. 
 
 That in May, 1852, the Illinois Central Railroad Company con- 
 demned about 12 acres of this quarter section in controversy for 
 right of way, and the McEwens were parties defendant to the 
 suit, and that damages were awarded to the legal owners. 
 
 That Thomas C. McEwen and Milton McEwen, in September, 
 1855, personally examined the land and reported it first rate land, 
 and worth s20 to s-25 per acre. 
 
 That in May, 1850, Thomas C. McEwen first made known the 
 existence of the patent to Archibald Millspaugh, executor and 
 devisee of the Will of David Millspaugh, and that under the 
 agreement made with David Millspaugh and Christina Lynn, 
 they, the McEwens, were the owners of at least one half of the 
 land ; that they had p^id all faxes for seven years, from 1849 to 
 1855, inclusive, and had, under the laws of Illinois, acquired full 
 legal right to all of the laud, and that there still remained in the 
 heirs of David Millspaugh only a nominal interest in said land. 
 
24 
 
 That they, the McEwens desired a quit-claim deed for the pur- 
 pose of removing an apparent cloud from their title, in order 
 that the record might appear clear; that said land was all a 
 swamp, incapable of cultivation, and of trifling value, and not 
 likely to improve. 
 
 That said McEwens represented that they had paid for costs, 
 fees and expenses, to the government in getting the warrant and 
 locating it, and getting patent, money exceeding $100, and a large 
 sum for taxes. 
 
 That in May, 1856, Archibald Millspangh and wife, and Will- 
 iam S. Millspaugh and wife, executed to the McEwens quit-claim 
 deeds to an undivided one-sixth part, or an heir's portion, for 
 the sum of $10, and tbat in the same year the other heirs exe- 
 cuted similar deeds for the same consideration. 
 
 That in September, 1856, the McEwens took the condemnation 
 money and used if", which had been paid into court by the Illi- 
 nois Central Eailroad Company, in the condemnation p:<. 
 for their right of way in 1852. 
 
 The above aie the substantial averments in the bill, or charges 
 of misrepresentations, concealments, and fraud on the part of 
 'the McEwens in procuring the quit-claim deeds from tbe heirs, 
 and through which the title passes to their grantees, and on 
 which this court is asked to cancel and set aside, on the ground 
 of fraud, all the deeds. 
 
 We have given these averments in substance, for purpose of 
 condensation and reply, in the order in which they appeal- 
 above. 
 
 The McEwens evidently faithfully carried out their part of the 
 agreement of 1846, and at once proceeded to pay out their 
 money and procure the land warrant, which was obtained June 
 
25 
 
 17, 1847 probably as soon as the proof could be made and pa- 
 pers prepared and presented in those days and the land located 
 August 30, 1849, and patent issued November 23, 1840. The 
 patent was issued to D tvid Millspaugh and Christina Lynn, 
 jointly ; but in meeting the averments of the bill as to the ques- 
 tion of possession of the patent and the concealment of the same 
 from the heirs until 1856, it must be remembered that under the 
 terms of the agreement which the bill admits, the McEwens were 
 to pay all the costs and have half of the land. iritat more there 
 was in the agreement not stated in the bill, for the purposes of this 
 demurrer, we c;innot inquire, for we must meet the bill as it 
 stands ; but in a proceeding where fraud is charged, we are per- 
 mitted io consider all the circumstances. From the circum- 
 stances, it is almost certain that the McEwens must have had 
 full power to act for the other parties to the contract in the pro- 
 curing of this warrant, locating it, and getting the patent, and 
 for aught that appears in the bill, selling it on such terms as tbey 
 pleased. Moreover, the Land Commissioner delivered the 
 patent to the McEwens or their agents, and was obliged by law 
 to notify the applicant, which would not have been done by that 
 official unless they had some authority to receive it. Then, 
 Mg'in, the McEwens had the equitable title to one-half of the 
 bind by the agreement, and could control that as they pleased, 
 while the legai title rested in David Millspaugh, or his heirs, and 
 Christina Lynn. 
 
 In the case of Seymour vs. Freer, U. S., 8 Wall. 214, the Court 
 say : "They had a joint interest in the property. Seymour held 
 the legal ti'le, but the rights of Priee (in this case the McEwen's) 
 ivere as i\did in equity as those of Seymour were at law." 
 
26 
 
 Price's position in the above case, as far as title is concerned, 
 is identical with tint of the McEwens in the case at bar. 
 
 There seems to be, even from the ful est averments of the bill, 
 no effort whatever to conceal the fact that a warrant had been 
 issued and located, and a patent received from the government. 
 The simple fact that they kept possession of it when they owned 
 one-half of it, is certainly no proof or evidence of a desire to con- 
 ceal it. The McEwens certainly had as much right to its pos- 
 session as all the heirs together had, and having received it, and 
 knowing it was then of little value, and Iriving paid out in get- 
 ting it probably all it was worth, they held it and paid the taxes, 
 doubtless hoping some time to get back their money. 
 
 Then, again, David Millspaugh died in July, 1849, before the 
 warrant was located, and being notified, undoubtedly, as the law 
 required, that it had been issued, there could have been no effort 
 to conceal the fact from him, for he could write, or, at least, that 
 is the inference from the averments, and could easily have written 
 or ascertained all about it. His postmaster, and the notice of its 
 being issued, would have informed him where to write, or the 
 lawyer that drew his Will. There was no fraud practiced upon 
 Archibald Millspaugh, nor effort to conceal the facts. He closed 
 up his father's estite under ths Will in which he wa^ heir to all 
 the real estate, and executor, in 1851, in Yates county, New York. 
 He then moved to Michigan and resided there until his death, in 
 1871, within two hundred miles of Chicago, or where the land is 
 located at Pullman. The issuing of the land warrant and patent, 
 and the locating of the same, was a matter of public record, and 
 open to the inspection of all. There were post offices and rail- 
 roads from 1846 to 1856, when the supposed fraudulent machina- 
 tions of the McEwens were going on, and Archibald Millspaugh 
 
27 
 
 could easily have ascertained all that had been done by the 
 McEwens. It wiir not do to aver fi th<it he had no means of infor- 
 mation." He had the same facilities for traveling and using the 
 mails as the McEwens had. He was, moreover, a man of at 
 least some means heir to real estate, and chosen above other 
 heirs as executor of his father's estate. Yet the complainant, in 
 order to make a seeming case (bill, p. 9, line 8, et seq.\, avers that 
 his o/cn father, Archibald Millspaugh, in 1856 (only fire years 
 after settling ]tis father's estate in Yules county, Xew York), "being 
 yet wholly ignorant of the existence of the aforesaid patent, and 
 of his rights as aforesaid to the land covered thereby, and the 
 ((ff'airs of his father 's estate and the jnorlsions of his Wdl, wherein/ 
 he teas himself constituted residuary derisee, haviiitf passed out of 
 his mind and been forgotten by liiin, was approached by said Thomas 
 C. McEwen." 
 
 Courts can not protect against such supposed ignorance and 
 forgetfulness of an executor of a Will, who had within ficc years 
 closed ir up, and then on the approach of Thomas C. McLwen' 
 forgets mid allows to jmss out of his inind the affn'tra of his father's 
 estate, 'the provisions ofliis Will, and thai he was residuary devisee. 
 
 There is certainly no fraud in the conduct of the McEwens 
 in the employment of agents in Chicago to attend to this or any 
 other business they might have had in that city or vicinity, and, 
 if there was any misrepresentations or concealments, it must 
 have been when the McEwens procured the quit-claim deed from 
 Archibald and Win. S. Millspaugh and their wives, in May, 1856. 
 In reference to this, we know of no law by which the vendee is 
 required to fix the value of the vendor's property, nor to i nform 
 him what improvements have been made around his property, 
 nor to furnish him with brains and ordinary business activity 
 
28 
 
 and capacity. These are matters that hje must ascertain and 
 obtain for himself. Even giving the complainant the full benefit of 
 all his extraordinary averments about the ignorance and forgetful- 
 ness of his father, when the McEwens did state, in 1856, that the 
 warrant had been obtained and located, and the patent issued, 
 Archibald Millspaugh was not obliged to sell. Their statements 
 were mere opinions. He was then put upon notice of these aver- 
 ments, as to concealments, whether they were true, and ordinarily 
 would have inquired at once where the land was, and would have 
 ascertained its value before selling. Moreover, it was not Archibald 
 Millspaugh alone that the McEwens dealt with, but his brother, 
 Wm. S. and their wives, four persons, all interested in this prop- 
 erty, and living within 200 miles of it, six hours ride, with full 
 notice at last, that as heirs to the land warrant, they were en- 
 titled to an heirs' portion. With this notice, and probably a state- 
 ment as to where it lay, as it is fully described in the deed, or at 
 least all the'f acts were within their reach, as to its value and locu- 
 tion, and yet they make the quit-claim deed. As to the aver- 
 ments, that the McEwens claimed to have paid the taxes for over 
 seven years, from 1849 to 1856, and being entitled by the agree- 
 ment to one-half of the land, and to the other by tax title, this 
 may have all been true, and if there was any thing fraudulent 
 in it, then was the time to have had it corrected, as the 
 legal paper title was still in the heirs. It is probable, that 
 the McEwens had to pay taxes in order to protect their interest 
 in the land, as a matter of ordinary business prudence, and not 
 with any intent to claim it under a tax title, until 1852, if at all. 
 There would seem to be no motive to conceal any facts in regard to 
 the agreement, the procuring the Land Warrant and locating the 
 same, as the land was not worth enough, according to the 
 averments of the bill, to make it an object. Then all the heirs of 
 
29 
 
 David Millspaugh and Christina Lynn, knew that their uncle, 
 Henry Millspaugh, was a soldier in the war of 1812, and 
 must have known that he was entitled to a land warrant for 160 
 acres. Christina Lynn certainly knew that it was obtained and 
 located, and patent issued in 1856, and was undoubtedly notified 
 of the fact when it was issued by the commissioners who issued 
 it, and she knew of the existence of the agreement; and undoubt- 
 edly her husband must h-ive known the same fact. At any rate 
 they ought have known these facts, and were put upon notice 
 when the McEwens procured of them their quit-claim deed in 
 1856, and were in no sense compelled to make the deed. In fact 
 her acknowledgment to the justice is, "and the said Christina 
 Lynn having been by me privately examined, separate and apart 
 from her said husband, and fully understanding the contents of 
 the foregoing instrument, acknowledged that she executed said 
 deed freely, and without any force or compulsion from her said 
 husband, or from any one. 
 
 The averments of the bill, (p. 11, line 38, et seq.) as to the in- 
 terest of the claimant, Gilbert D. Millspaugh, son of Archibald 
 Millspaugh, they state that he was eight years old in 1856, and that 
 would now make him 37 years of age in the very prime of life 
 and of age for 16 years. If he has any rights whatever, and has any 
 right now to assert them, they are based upon the averred im- 
 position and undue influence of the McEwens in procuring the 
 quit-claim deed from Archibald Millspaugh and wife in May, 
 1856. 
 
 We deny that any of these heirs ever had, according to the 
 averments of the bill, or otherwise, any grounds of complaint 
 against the acts of the McEwens, that any court of equity could take 
 cognizance of, and if they ever did, they slept away their rights 
 
30 
 
 and the opportunity to assert them ; and that this complainant 
 cannot, certainly, revive their supposed rights and interests after 
 he has been of age 16 years, and after the McEwens have had 
 undisturbed and undisputed, peaceable possession of these lands, 
 and paid taxes for 30 years, from 1850 to 1880, and their grantees 
 for 5 years, and until the present time. It is not the fault of the 
 McEwens that there were no memoranda or papers of his father's 
 referring to this transaction now to be found, nor that he did not 
 discover his supposed rights until last year, 1884, as averred by the 
 bill. The deeds from the heirs to the McEwens in 1856, fully 
 describing the land, were publicly made, executed in due form, in 
 St. Glair county, Michigan, the home of the complainant, and by 
 his father and mother, uncle and aunt. They were of record, and 
 in these days of easy communication and travel, the averments of 
 the bill are not sufficient, at this late day, to protect, by a Court 
 of Chancery, any supposed rights he might have had. 
 
 Publicly, the McEwens were in court, in 1852, in the land con- 
 demnation proceedings of the 111. Cent. E. E. Co., and there 
 recognized as defendants. Their acts in getting the deeds before 
 a public official, recording the same, publicly obtaining the land 
 warrant and locating the same, and appearing in court in a pub- 
 lic proceeding, would indicate that they were not very successful, 
 if they were intending or striving to conceal any part of their 
 acts in this whole matter. The averment is that they, in 1856, 
 after obtaining the quit-claim deeds, obtained the condemnation 
 money paid into court in that proceeding in 1852, and appropri- 
 ated it to their own use. This they had a right to do, after pur- 
 chasing the land and being parties to the suit. Half of it was 
 theirs by the agreement, at least, and was too trifling a sum to 
 have any influence on the question of fraud and concealment. 
 
31 
 
 According to the averments of the bill, (p. 10, lines 9-12) the 
 whole amount was less than $53.00. As we view this question, 
 there was no such concealment, misrepresentation or fraud, if 
 anything of either, to amount to positive fraud, that would shock 
 the conscience, and be conclusive of its use. That if there was 
 anything in the acts of the McEwens that could be construed as 
 concealment, imposition or undue influence, it would best come 
 under the head of constructive fraud, in the relations of trust and 
 agency, and will be discussed under that head. 
 
 INADEQUACY OF PRICE. 
 
 The substantial averments of the bill are, that the McEwens 
 paid for the interest of Christina Lynn and her husband, as stated 
 in their deed, $43.00 ; that to Archibald and William S. Millspaugh 
 they paid $10.00 for an undivided heirs' portion, and the said sum 
 being precisely the same as was paid by the said McEwens to 
 each one of the other heirs at law of the said David Millspaugh. 
 The bill avers that the McEwens had paid not to exceed $53.00 
 for taxes ; That in 1855 and 1856, the said land was valued for 
 taxation at S960 ; that the McEwens reported to their agents, in 
 September, 1855, that said lands were first-rate lands, and worth 
 at least $20 to $25 per acre ; that in 1850 and 1856, the mini- 
 mum price fixed by law for the sale of public lands was $1.25 per 
 acre ; that by the act of Congress, approved September 20, 1850, 
 granting certain of the public lands to the State of Illinois, to aid 
 in the construction of the Illinois Central Railroad, the price of 
 all public lands lying within six miles of the route of said road 
 was raised to $2.50 per acre ; that in 1850, the valuation for tax- 
 ation of this quarter section was 8240; in 1851, $320; in 1852, 
 $400; in 1853, $800; in 1854, $800; in 1855, $960; in 1856, 
 
32 
 
 That in 1880, one Beach purchased an adjoining tract of 
 land, worth no more, if as much, as the quarter section in contro- 
 versy, for $500 per acre, while the said Pullman paid the Mc- 
 Ewens only about $312.50 per acre. 
 
 "Mere inadequacy of price, or any other irregularity in the bar- 
 gain, is not, however, to be understood as constituting, per se, a 
 ground to avoid a bargain in equity. For courts of equity as well 
 as courts of law act upon the ground that every person who is 
 not, from his peculiar condition or circumstances, under disability, 
 is entitled to dispose of his property in such manner, and upon 
 such terms, as he chooses ; and whether his bargains are wise 
 and discreet, or profitable or unprofitable, or otherwise, are con- 
 siderations not for courts of justice but for the party himself to 
 deliberate upon." 
 
 1 Story's Eq. Juris. 241. 
 
 I Dean's Eq. Rep. 651. 
 
 II Wheat. 124. 
 
 "Where no fiduciary relations exist between the parties dealing 
 for the purchase of an estate, mere inadequacy of consideration 
 or irregularity in the statement of it in the conveyance, is not 
 sufficient to impeach the contract, so as to induce a court of 
 equity to set it aside. 
 
 "Still, however, there may be such an unconscionablen'ess or 
 inadequacy in a bargain, as to demonstrate some gross imposi- 
 tion, or some undue influence ; and in such cases courts of equity 
 ought to interfere, upon the satis actory ground of fraud. But 
 then, such unconscionableuess or inadequacy should be made 
 out as would (to use an expressive phrase) shock the conscience, 
 and amount in itself to conclusive and decided evidence of 
 fraud." 
 
 1 Story's Eq. Juris. 240, 241, sec. 245 and 246. 
 
 "Yet, persons of full age are not allowed, in point of law, to 
 object to their agreement as being injurious, unless the injury be 
 excessive, a rule wisely established for the security and liberty 
 of commerce, which requires that a person shall not be easily 
 permitted to defeat his agreements." 
 
 Ibid., 243. 
 
33 
 
 "Courts of equity will not relieve in all cases, even of 
 very gross inadequacy, attended with circumstances which might 
 otherwise induce them to act, if the parties cannot be placed in 
 statu quo." 
 
 Ibid. 241, sec. 250. 
 
 Perly vs. Catlln, 31 111. 533. 
 
 The inadequacy of price must be so great as to afford a strong 
 presumption of fraud. 
 
 Butler vs. Haskell, 4 Desaus, 651. 
 Udall vs. Kennedy, 3 Cow. 590. 
 
 Or must be coupled with some irregularity of the parties. 
 
 George vs. Richardson, Gilmer, 230. 
 
 In the purchase of a debt of $260,000 in certain promissory 
 notes secured by mortgage for the sum of $600, at a sheriff's 
 sale, it was held not necessarily fraudulent and void, for inade- 
 quacy of price.- 
 
 Erwin vs. Parham, U. S., 12 How. 197, and citations. 
 
 It has been held that inadequacy of price of a reversionary 
 interest, not so great as to shock the moral sense, was not cause 
 for setting aside the sale where there was no fraud. 
 Mayo vs. Carrington, 19 Gratt., Va. 74. 
 
 So where property, under a trust deed, was sold for about two- 
 thirds of its value. 
 
 Weld vs. Rees, 48 111. 428. 
 
 Until fraud does appear, the parties must be left to their rtghts, 
 as settled and fixed by their contracts, legally made. Equity 
 will not interfere. Ibid. 437. 
 
 In view of the above well established principles of equity on 
 this subject, and the citations already made, we do not think 
 that there was any inadequacy of price that would justify 
 
34 
 
 a court of equity in interfering to cancel the deeds from 
 the Millspaugh heirs to the McEwens, had a bill been filed 
 immediately after the deeds were executed. To have suc- 
 ceeded even then, the complainants would have had to 
 show fraud that would shock the moral sense, to have made any 
 supposed inadequacy of price of avail. To make it available, it 
 must be shown that the parties were unequal, or advantage taken 
 of the distress of the vendor ; or, that they were young or 
 ignorant, or imbeciles. None of these conditions existed in the case 
 at bar. The vendors were all matured men and women, fully 
 capable to attend to their own property, and act as executor, one 
 at least, of his father's estate. They were, or might have been, 
 if they had sought the information, as well posted in reference to 
 the value of this land as the McEwens were. There was, 
 we think, no fiduciary relation existing between the heirs 
 who made the deeds, and the McEwens, at the time the 
 deeds were made in May, 1856. For that relation, if any 
 ever existed between them, terminated when the McEwens 
 informed the heirs that, according to the the agreement 
 they had procured the land warrant, located it, and obtained 
 the patent therefor. This must have been before the execution 
 of the deeds of May, 1856, to the McEwens. This announcement, 
 therefore, ended any relations of a fiduciary character, or of 
 principal and agent, or of partnership relations, if any such ever 
 existed under the agreement. The contract or agreement on the 
 part of the McEwens had been fully executed, and their work 
 done, and they were reporting to the heirs and ready to purchase 
 the part of the land belonging to the heirs, if disposed to sell, 
 and if not, to take deeds for their undivided half of ths land be- 
 longing to them under the agreement. 
 
35 
 
 The parties, therefore, stood upon equal terms and footing to 
 buy or sell their interests in these lands, the same as if they had 
 not had any relations with each other under the agreement. The 
 Millspaughs were in no sense compelled to sell unless they chose 
 to do so, nor were the McEwens compelled to buy the land. 
 
 As far as the law and equity in the matter was concerned, each 
 party was as free to buy or sell as if they had never met or had 
 any relations together in reference to this land. If there was any 
 fraud on the part of the McEwens, in reference to their obtaining 
 the land warrant and locating the same and getting the patent, 
 it must have been in the supposed concealment of these facts 
 from the Millspaughs. There may have been good and sufficient 
 reasons why they kept possession of the land warrant and patent 
 from 1849 to 1856, with no possible taint of fraud attached thereto, 
 and dealing with the averments of the bill, its statements must 
 bs accepted on demurrer. But whether there was, or no, any 
 fraudulent concealments or other acts of the McEwens up to the 
 date of the deeds in 1856, such fraudulent acts were all condoned 
 by the new contracts made in the deeds. 
 
 If the party defrauded enters into a new contract with full 
 knowledge of the fraud, this condones it. 
 Dads vs. Henry, 4 W. Va. 571. 
 
 The fraud of the McEwens, according to the averments of the 
 bill, lay in concealing the facts of where the land was, its value, 
 and that a warrant had been obtained and located, and patent 
 issued. The gist of these charges is the concealment that the pat- 
 ent had been obtained and the land located. When that fact was 
 disclosed to the Millspaughs, it was their duty to have ascertained 
 the value of the land, knowing where it was, the supposed fraud 
 of concealment being fully known to the Millspaughs when the 
 
36 
 
 deeds were executed in 1856. The making of them on the part 
 of the Millspaughs, was a condonation of any supposed fraud 
 prior thereto. This supposed fraud of concealment being, neces- 
 sarily, from the nature of the case, disclosed before the deeds 
 were executed, such fraud cannot be made ground of objection, 
 or interference in equity. 
 
 Whiting vs. Hill, 23 Mich. 399. 
 
 The representations and statements of the McEwens as to the 
 value of the land, and as to their ownership of the whole land by 
 virtue of having paid the taxes for over seven years, have no 
 bearing on the case (1 Story's Eq., Sec. 193) and it. matters not 
 whether they were true or false, they ice re only the opinions of the 
 McEicens, and were not at all binding on the Millspaughs, all 
 supposed fiduciary relations or those of trustee, if they ever ex- 
 isted, having expired when the McEwens announced that they 
 had obtained the warrant and procured the patent. 
 
 On this point we quote from Douglass vs. Littler et al., 58 Ills. 
 348: 
 
 "There was no necessity of making the deed at once, and by tak- 
 ing a little time for examination and inquiry, the defects in the 
 tax-title might have been discovered before the making of the 
 deed. Littler made no misstatement of any matter of fact ; he 
 said his tax-title was good, but made no statement of any matter 
 going to show the title was valid. Whether it was good or not, 
 was a question of law, for the decision of which Douglass, so far 
 as then appeared, was as competent as Littler ; and the facts 
 upon which an opinion might be based, were placed within his 
 reach by Littler, by his disclosing the proper source of informa- 
 tion. The parties dealt upon equal terms ; there was no special 
 confidence or relations existing between them, and Littler was 
 not guilty of a fraud for which this deed can be avoided, merely 
 because he expressed an opinion as to the validity of his tax-title, 
 which the facts did not justify, so long as he made no false state- 
 ments to what those facts were. 
 
37 
 
 "Ordinarily, matters of opinion between parties dealing upon 
 equal terms, though falsely stated, are not relieved against." 
 
 Drake vs. Latham, SO 111. 270. 
 
 1 Story Eq. Jur., sec. 197. 
 
 Stover vs. Mitchell, 45 111. 213. 
 
 Coil vs. Pittsburg Fern. Co!,, 40 Penn. St. 445. 
 
 Pike vs. Fay, 101 Mass. 217. 
 
 Muoney vs. Miller, 102 Mass. 217. 
 
 1 Story's Eq., sees. 190-191. 
 
 On the ground, therefore, of mere inadequacy of price, if any 
 existed, we do not think this such a case as would justify a court 
 of equity in granting any relief, as it is not sufficiently and 
 grossly inadequate to shock the conscience and prove clearly the 
 existence of fraud. 
 
 There must, in general, be positive fraud, or constructive fraud, 
 and this not merely suspected, but proved. 
 
 Trenchard vs. Worley, 2 P. Wms. 166. 
 1 Fonbl. Eq., chap. 2, sec. 8, note. 
 
 Inadequacy of price, it is now a well settled rule, affords no 
 ground of relief. It is but one of a thousand circumstanoes from 
 which fraud may be inferred. 
 
 1 Story's Eq., sec. 241. 
 
 1 Fonbl. Eq., chap. 2, sec. 9, note. 
 
 At the time the deeds were made (1856) the assessed value of 
 the land was but $960, and had remained at that for two years, 
 and this, too, though the bill avers that a large and thrifty colony 
 had located a flourishing village in the immediate neighborhood 
 of this land in 1849 and 1850, and that the Illinois Cent. E. E. 
 and the Michigan Cent. E. E. completed their roads through this 
 land in 1852. Yet the assessed valuation of the land that which 
 
is the most correct and reliable gives it at $240 in 1850, $320 in 
 1851, $400 in 1852, $800 in 1853-54, $960 in 1855-56. Just what 
 this land cost the McEwens, the bill does not aver. For aught 
 disclosed in the bill, it may have cost them its actual value, for 
 their expenses in procuring the land warrant, locating the same, 
 and procuring the patent, and paying agents to look after the 
 same and pay taxes, are not fully stated in the bill. At best, if 
 there was any inadequacy of price paid for the deeds, was it such 
 a circumstance as would lead the court to infer fraud on the part 
 of the McEwens ? And if it was not, it is not a material ques- 
 tion. That the land became very valuable in 1880, when the 
 McEwen's sold it, nearly a quarter of a century afterwards, is a 
 matter of no consideration to this court. 
 
 In reference to the averments in the bill as to the concealing of 
 the fact that they had procurred the land warrant and located 
 the same, and had a patent for the same, and that David Mills- 
 paugh died ignorant of the fact that the warrant had been ob- 
 tained; that Christina Lynn and Archibald Millspaugh were 
 never informed of the fact that the warrant had been obtained 
 and located and a patent procured, until 1856, in May, by the 
 McEwens, it is sufficient to say, the laws of the United States 
 sec. 4748, U. S. Revised Statutes, in force at the time this land 
 warrant was issued, in reference to notification of claimants for 
 land warrants, is as follows, to-wit : 
 
 "That the Commissioner of Pensions, on application being 
 made to him, in person or by letter, by any claimant or applicant 
 for pension, bounty land, or other allowance required by law to be 
 adjusted or paid by the Pension office, shall furnish such persons, 
 free of all expense, all such printed instructions and forms as may 
 be necessary in establishing and obtaining said claims ; and on 
 the issuing of a certificate of pension, or a bounty land warrant, 
 he shall forthwith notify the CLAIMANT or APPLICANT, and also the 
 agent or attorney in the case, if there be one, that such certificate has 
 been issued or allowance made, and the date and amount thereof." 
 
39 
 
 Here we have the statutory law of the United States, which 
 commando and makes it the official duty of the Commissioner of 
 Pensions to notify, forthwith, the claimant or applicant, and also the 
 agent or attorney, if there be one, that such certificate has been issued 
 or allowance made, and the date and amount thereof. 
 
 This government official undoubtedly so notified David Mills- 
 paiujh and Christina Lynn, June 17, 1847, when the land warrant 
 was issued, some two years before David died. That such a land 
 warrant had been issued by the Government, and according to the 
 averments of the bill, it issued to them jointly as heirs of Henry 
 Millspaugh, the soldier in the war of 1812. 
 
 This official had certainly no interest in defrauding the Mills - 
 paughs out of the proceeds of this land warrant, nor of conspiring 
 with the McEwens to do so. He was, moreover, to notify their 
 agent or attorney, if there was one, of the same fact. It is be- 
 yond the presumption of the complainant or his imaginative attor- 
 neys to deny that this was done. It is also probable, amounting 
 to a positive certainty, that the McEwens had regular powers of 
 attorney to receive this land warrant from the parties to whom 
 it was issued, or it would not have been sent to them by this 
 official. 
 
 Moreover, public notice is given of all such transactions. In 
 U. S. Revised Statutes, sec. 458, we find as follows, to-wit : 
 
 "All patents issuing from the General Land Office, shall be 
 issued in the name of the United States, and signed by the Pres- 
 ident, and countersigned by the Recorder of the General Land 
 Office, and shall be recorded in the office, in books kept for the 
 purpose." (In force April, 1812.) 
 
 Section 460, U. S. Revised Statutes, is as follows, to-wit : 
 
 "Whenever any person claiming to be interested in or entitled 
 to land under any grant or patent from the United States, applies 
 to the department of the interior for copies of papers filed, and 
 
40 
 
 remaining therein, in anywise affecting the title to such lands, 
 it shall be the duty of the Secretary of the interior, to cause such 
 copies to be made out and authenticated, under his hand and 
 the seal of the General Land Office, for the person so applying." 
 
 Here, then, under statutory law of the United States, the Secre- 
 tary of the Interior is obliged to keep full records of issues of land 
 warrants and patents, and also to send copies of the same to all 
 persons who apply and who are interested in lands thereunder ; 
 and the Commissioner of Pensions is obliged, under statutory law 
 of the Government of the United States, to notify all claimants 
 and applicants for land warrants. These officials undoubtedly 
 did their official duties, and notified David Millspaugh and Chris- 
 tina Lynn of the date of their land warrant, that it had been is- 
 sued, and the amount of their interest therein, as far as the gov- 
 ernment was concerned. They, therefore, hai notice of its issue, 
 and knew tchere to apply, if they desired any information concerning 
 the same. What, then, becomes of the averments of the bill as to 
 the ignorance of these claimants of the issue and location of the 
 land warrant, and the procuring of the patent for the same, and 
 the averred concealment of those facts by the McEwens ? It fails 
 utterly, and could scarcely have been possible, and yet the whole 
 claim of the bill rests for its foundation on this averred ignorance 
 of the Millspaughs of what was done by the McEwens, and their 
 averred concealment of their every act in this connection. 
 
 If, then, there was no concealment, on the part of the McEw- 
 ens, of the facts relative to procuring the patent and retaining 
 the same, as we think impossible under the above circumstances 
 and laws, and their statements as to the value of the land, and 
 as to owning the land under tax titles, being mere opinions of 
 theirs, and the inadequacy of price paid for the land, if any ex- 
 isted, at the dates of the deed, in 1856, these parties stood on 
 
41 
 
 equal footing, and could contract with each each other as if no 
 former relations had ever existed between them in relation to 
 these lands, and the procuring a patent for the same. 
 
 FIDUCIARY OR TRUST RELATIONS. 
 
 The bill avers a relation of Trust and Agency as existing be- 
 tween the Me E wens and David Millspaugh and Christina Lynn, 
 and their heirs. Undoubtedly the McEwens, according to the 
 averments of the bill, were the agents or attorneys of David 
 Millspaugh and Christina Lynn, to do a definite and particular 
 thing, and that was to procure for them a land warrant, locate 
 the same, and perfect their title thereto to 160 acres of land, as 
 heirs of the soldier of 1812, Heury Millspaugh; and when 
 they had done this, their relation as principal and agent, or at- 
 torney and client, ceased. And for their services they were to 
 have half of the land, and pay all expenses connected therewith. 
 When they announced that they had accomplished this, which 
 they did in 1856, their agency terminated, and out of this per- 
 fectly natural business transaction there could not possibly, as 
 we think, arise any such fiduciary or trust relation, as is averred 
 by the bill, that would in any way in law or equity prohibit the 
 McEwens from purchasing the interest of these heirs, as tiiey did 
 do in 1856. 
 
 These heirs were all of age, not imbecile in body or mind, or 
 in any way incapacitated to contract. They were not under any 
 form of distress, or compelled to sell. They were entirely com- 
 petent to act on the statements of the McEwens, whether true or 
 false, as they pleased. They had full notice that the land warrant 
 had been issued and located, and patent issued. They knew 
 
42 
 
 where the land was located, at least, from the deeds the 
 McEwens asked them to sign, if from no other source. They 
 could easily have ascertained the value of the land. The means 
 were within their power, and the McEwens were, in no sense, 
 their guardians, administrators, executors or trustees, out of 
 which the fiduciary relations, sought to be charged on them in 
 the bill, arise. 
 
 The fact that they did sell to the McEwens the land in contro- 
 versy at a price, which, after a quarter of century, seems to the 
 complainant inadequate, will not justify a court of equity to in- 
 terfere, under the circumstances here presented. 
 
 If there was any fiduciary relations whatever between the 
 McEwens and the Millspaughs, at most it could only be a result- 
 ing or constructive trust, and in such cases the statute of limita- 
 tions would apply, while it might in some cases be different in 
 case of an express trust of a trustee and his cestui que trust. 
 
 Lapse of time, especially when coupled with occupancy and 
 improvements of the property by the alleged trustee, has been 
 held a bar to the enforcement of a resulting trust in many cases, 
 even though the fraud was evident, and the rights to relief origi- 
 nally clear. 
 
 Sec. 15, Federal Reporter, p. 761, and very numerous 
 citations. 
 
 Even children must act with reasonable promptness. If a child 
 seeking to enforce against a parent a trust resulting from a con- 
 veyance from the child to the parent, obtained by the parent's 
 exercise in improper influences waits until the parent has died, 
 or until third parties have acquired rights, the remedy will be 
 barred by lapse of time and laches. 
 
43 
 
 The rule, that the Statute of Limitations will not protect trus- 
 tees, applies only to express and not constructive trusts. 
 Boone vs. Chiles,W Pet. 177. 
 Hayinan vs. Really, 3 Cranch, c. c. 325. 
 Elmcndorfvs. Taylor, 10 Wheat. 152. 
 Beaubien vs. Beaubien, 23 How. 190. 
 
 Trust signifies a holding of property subject to a duty of em- 
 ploying it, or applying its proceeds according to directions given 
 by the persons from whom it was derived. A Constrictive Trust 
 is "a trust founded neither on an expressed nor on a presumable 
 intention of the party, but raised by a construction of equity with- 
 out regard to intention, and simply for the purpose of satisfy- 
 ing the demands of justice and good conscience." 
 
 It is evident from these definitions that the MeEwens could 
 not possibly, under the facts and circumstances of this case, 
 as averred in the bill of complainant, be held amenable to a 
 court of equity as having any express trust from any of the 
 Mill-paughs, and if anything, it couMonly be an implied or con- 
 structive trust. Nor do we believe that by any possible inference 
 from the averments of the bill can any constructive trust be es- 
 tablished in a court of equity, as the acts of the MeEwens can be 
 explained as a very simple, ordinary business transaction. 
 
 "It is doubtless true that when a person obtains the legal title 
 to real property by imposition or fraud, and under such circum- 
 stances that he ought not, according to the rules of equity, to hold 
 and enjoy the beneficial interests in the property, courts of 
 equity, in order to administer complete justice between the par- 
 ties, will raise a trust out of such circumstances ; and this trust 
 they will fasten upon the conscience of the offending party and 
 will convert him into a trustee of the legal title, and order him to 
 hold it, or execute the trust in such a mnnner as to protect the 
 rights of the defrauded party. Such trusts are called constructive 
 trusts." 
 
 Perry on Trusts, Sec. 166. 
 
Under this rule the complainant seeks to have the McEwens 
 held as trustees of the land in dispute. 
 
 But the case at bar does not come under this rule, for the 
 McEwens did not obtain the legal title to this land until 1856, 
 when all prior fraudulent concealment, if any existed, as to pro- 
 curing the land warrant and patent which left the legal title in 
 David Millspaugh and Christina Lynn, from June 17, 1847, to 
 May 26, 1856, had been discovered to them by the McEwens and 
 condoned by them in the new contract, or quit-claim deeds made 
 in 1856. There was at that time no other imposition or fraud 
 or undue influence practiced by the McEwens, save the 
 averred misrepresentations as to the value of the land and their 
 ownership of the whole tract by virtue of payment of taxes for 
 seven years, and these, as we have shown above, were their mere 
 opinions, and not sufficient to establish constructive fraud even 
 under this rule given by Perry, and cited above. 
 
 In Wormley vs. Wormhy, 98 Ills. 547, the court say : "It can 
 not be a resulting trust as to any one of the tracts, as such trusts 
 are never created by agreement, but usually by the purchase of 
 land with money of one person in the name of another, without 
 the consent of the owner of the means." 
 
 Sheldon vs. Hard'uuj, 44 Ills. ^8 
 
 Holmes vs. Holmes, 44 Ills. 168. 
 
 "A resulting trust is never raised unless the money of the cestui 
 que trust was used in the purchase in which the trust is claimed." 
 
 Holmes vs. Holmes, 44 Ills. 168. 
 
 "A resulting trust can not be created by a contract or agree- 
 ment. If a trust of any kind is created by contract, it will be 
 express and not a resulting trust." Ib., 168. 
 
45 
 
 A trust can only arise in favor of a party who pays the whole 
 or some definite part of the purchase money, at the time the 
 purchase is made. 
 
 Alexander vs. Trainee, 13 Ills. '221; Ibid., Perry vs. 
 Me Henry, 227. 
 
 WlUiums vs. Broini, 14 Ills. 201. 
 Loo in in vs. Loom is, 28 Ills. 454. 
 Walter vs. Klock et al,, 55 Ills. 362. 
 
 "To establish a resulting trust, the money of the cestiu que 
 trust must be used in the purchase of the property of which the 
 trust is claimed to exist. Such a trust can not be created by 
 agreement or contract." 
 
 Remington vs.'Gampbell, 60 111. 516. 
 
 The legislatures of New York, Michigan and Wisconsin pro- 
 vided by statutes that no resulting trust should exist except where 
 the title was taken without the knowledge or consent of the party 
 furnishing the consideration. 
 
 Sheldon vs. Holme*, 44 111. 69 Note. 
 
 Under the definition of trusts, it seems to us that there is no 
 such relations between the McEwens and the Millspanghs as 
 to create a trust of any kind, and as the McEwens paid all the 
 money there was paid on the consideration, and as we have 
 shown already that there was no fraud in obtaining the title 
 from the government to David Millspaugh and Christina Lynn, 
 and as they ac'ed under an agreement and deeds throughout, 
 there could not possibly arise out of their acts, even as averred 
 in the bill, any resulting or constructive trust. 
 
 LACHES. 
 
 Laches need not be pleaded, if the objection is apparent on 
 the bill itself, it may be taken by demurrer. 
 Maxwell vs. Kennedy, 8 How. 222. 
 Lansdale vs. Smith, 16 Ent. N. J. 28. 
 
46 
 
 And if the cause, as it appears on the hearing, is liable to the 
 objection, the Court will refuse relief without inquiring whether 
 there is a demurrer, plea, or answer setting it up. 
 
 Sullivan vs. Portland It. R. Co., 94 U. S. 811. 
 
 Badger vs. Rodger, 2 Wall. 95. 
 
 "Nothing can call forth a court of equity into activity but 
 conscience, good faith and reasonable diligence. When these 
 are wanting the court is passive, and does nothing. Laches and 
 negligence are always discountenanced, and therefore, from the 
 beginning of this jurisdiction, there was always a limitation of 
 of suits in this court." 
 
 Smith vs. Clay, Amb. 645. 
 
 Brown vs. Co. of Buena Vista, 95 U. S. 160. 
 
 In that case, Chief Justice Swayne says : "The law of laches, 
 like the principles of the limitation of actions, was dictated by 
 experience, and is founded on a salutary policy. The lapse of 
 time carries with it the memory and life of witnesses, the muni- 
 ments of evidence, and the other means of proof. The rule that 
 gives it the effect prescribed, is necessary to the peace, repose and 
 welfare of society. A departure from it would open an inlet to 
 the evils intended to be excluded." ' 
 
 "A defense peculiar to courts of equity is founded on the mere 
 lapse of time, and the staleuess of claims in such cases where no 
 statutes of limitations directly cover the case. In such cases, 
 courts of equity act sometimes by analogy to the law, and some- 
 times act upon their own inherent doctrine of discouraging, for 
 the peace of society, antiquated demands, by refusing to interfere 
 when there is gross laches in prosecuting rights, or long and 
 unreasonable acquiescence in the assertion of adverse rights." 
 
 2 Story's Eq., 1520. 
 
 The U. S. Supreme Court say: 
 
 "Every principle of justice and fair dealing, of the security of 
 rights long recognized of repose of society, and the intelligent ad- 
 ministration of justice, forbids us lo enter upon an inquiry into 
 that transaction 40 years after it occurred, when all the parties 
 had lived and died without complaining of it, upon the sugges- 
 tion of a construction of a will different from that held by parties 
 concerned and acquiesced in by them throughout all this time." 
 
 Clarke vs. Broomans, Ex'r, 15 Wall. 509. 
 
47 
 
 "A court of chancery is said to act on its own rule in regard to 
 stale claims :ind demands; and independent of the statute, it 
 will refuse to give relief when a party has long sl-pt on his rights, 
 and when the possession of the property has been held in good 
 faith without disturbance, and has greatly increased in value." 
 
 Boone vs. Chiles, 10 Pet. 248. 
 
 "Courts of equity refuse to interfere after a considerable lapse 
 of time from considerations of public policy, from the difficulty 
 of doing entire justice, when the original transactions have be- 
 come obscure by time, and the evidence may be lost, and from 
 the consciousness that the repose of titles and the security of 
 property are mainly promoted by a full enforcement of the 
 maxim: Vigilantibtis, non dormientilus, jura mlwenient" 
 
 1 Story's Eq. Ju. 520. 
 
 Fonbl. Eq., B. 1, ch. 4, sec. 27. 
 
 Jeremy on Eq. Ju., B. 3, pi. 3, ch. 5, 549-550. 
 
 Courts of equity, although not in strictness bound by the stat- 
 utes of limitations, act by analogy to it, and in a proper case, 
 apply an equitable rule to the limitations preseribed by the 
 
 statutes. 
 
 Shencood vs. Sutton, 5 Mass. 143. See 5 Mass. 95. 
 
 Bank of Louisiana vs. Stafford, 12 How. 327. 
 
 The personal representative is affected by the delay or acquies- 
 cence of the decedents to the same extent as if it were his own. 
 Haydeu vs. Billy, 8 Federal Law Eept, (N. S.) 266. 
 
 Under the above citations on the question of laches, and the facts 
 intbis case at bar, the complainant is not entitled, we think, to any 
 relief, even upon his own showing. He stands in no better position 
 than his father, Archibald Millspaugh, and the other heirs, but is 
 affected by the delay or acquiescence of the decedents to the s nine 
 extent as if they were his own. Undoubtedly, David Millspaugh 
 must have had the notice from the Commissioner of Pensions which 
 that official was obliged by }&vr to send forthwith on the issuing of the 
 
43 
 
 land warrant to David Millspaugh and Christina Lynn, June 17, 
 1847, and undoubtedly Christina Lynn received a similar notice at 
 the same time. Then the issuing of the patent, November 30, 1849, 
 and the locating of the land warrant August 23, 1849, through 
 the land office in Chicago, were acts of public record, and the 
 means of ascertaining what had been done were within the reach 
 of Archibald Millspaugh and all the other heirs interested in this 
 land. They must have known that as heirs of David Millspaugh 
 and Christina Lynn, they were entitled to a land warrant by 
 virtue of being heirs of Henry Millspaugh, the soldier in the war 
 of 1812. It would be preposterous, in this age of activity and 
 anxiety to accumulate property, that they could remain in igno- 
 rance of these facts. There can be no denial of the fact, that 
 whatever may be said as to prior concealment, the fact that a 
 land warrant had been obtained from the Government and loca- 
 ted, and a patent received therefor, was fully disclosed to Archi- 
 bald Millspaugh and wife and Wm. S. Millspaugh and wife, May 
 26, 1856, and to all the other heirs when, in that same year, they 
 all made their quit-claim deeds. 
 
 They then knew where the land was located, and could easily 
 have ascertained its value, had they chose to do so. Archibald 
 Millspaugh lived within 200 miles of the land from 1856, when 
 the quit-claim deed was made, to 1871, over 15 years, when he 
 died ; his widow, 21 years when she died, in 1877. Here, then, 
 was acquiescence in the acts of the McEwens for 15 and 21 years, 
 of the parties giving the quit-claim deeds to the McEwens on the 
 26th of May, 1856, and no complaint of fraud, or undue influ- 
 ence, or inadequacy of price, or imposition ; and the parties were 
 in the prime of life, and fully able to protect their rights and 
 make their own -contracts. 
 
49 
 
 Then, again, the present complainant being eight years old in 
 1856, when the quit-claim deeds were made, is now 37 years of 
 age, having been of age 16 years. He has lived, since then, with- 
 in 200 miles of the greatest city of the century, in many respects, 
 and of this land. That he could have lived so long in the very 
 place where the deeds were made, and not have known of his 
 father's interests in this land, under the circumstances, seems 
 utterly incredible. 
 
 At any rate, it would be a very great stretch of equity to grant 
 any relief in a case where the interested parties had slept on 
 their supposed rights from 1856 to 1885, a period of thirty years, 
 while during this whole time the McEwens and their grantees 
 have paid the taxes, held peaceful and undisputed possession of 
 the lands, and built thereon a large and flourishing town, and in- 
 vested millions of dollars in large and expensive manufacturing 
 interests, without any effort whatever on the part of the sleepers 
 to assert their supposed rights. It would be an exceedingly diffi- 
 cult thing to find, a staler claim and one rc-s-////// on a more slender 
 foundation, and we know of no rule of equity, practice or prece- 
 dent that would authorize a court to interfere at this late day, to 
 grant the relief sought, even if a meritorious case could have 
 been made in 1856, between the Millspaugh heirs and the Mc- 
 Ewens, when the concealment fraud on the part of the McEwens, 
 if there ever was any, must have been discovered and fully dis- 
 closed to the Millspaugh heirs when the deeds were executed to 
 the McEwens. The fact, too, that the McEwens held the land 
 from 1856 to 1880, is evidence, at least, that they were not afraid 
 of their title, and were willing that it should be investigated ; and 
 the fact that the title stood this way undisturbed for 26 years, 
 when such a proceeding as the complainant's, if it had any foun- 
 dation, would have placed the parties in statu quo, will go far to- 
 
50 
 
 ward forbidding the relief now sought, when the land has become 
 exceedingly valuable, and rights of innocent parties have accrued. 
 
 Then, again, equity cannot interfere after such a lapse of time, 
 in which most of the parties of the transaction are dead, and the 
 records largely lost or destroyed, and where it would be impossi- 
 ble to put the parties in statu quo. 
 
 THE STATUTE OF LIMITATIONS. 
 
 But the statute of limitations, in connection with the laches 
 apparent on the face of complainant's bill, is fatal to the relief 
 prayed for. 
 
 Courts of equity, although not strictly bound by the statute of 
 limitations, act by analogy to it, and in proper case apply an 
 equitable rule to the limitations prescribed by the statute. 
 
 Slienvood vs. Sutton, 5 Mass. 143. 
 
 See 5 Mass. 95. 
 
 Bank of Louisiana vs. Stafford, 12 How. 327. 
 
 "Chancery adopts limitations at law, or treats less periods as 
 barring claim." 
 
 Castner vs. Walrod, 83 111. 171. 
 
 Courts of equity act by analogy upon limitation law. 
 Sloan vs. Graham, 85 111. 26. 
 
 Upon application of heirs, administrator's sale will not be set 
 aside for mere irregularities after lapse of nineteen years. 
 Goodbody vs. Goodbody, 95 111. 456. 
 
 Equity follows law in allowing defense of statute. 
 Harris vs. Mills, 28 111. 44. 
 
 "That no person shall commence an action for recovery of 
 lands, nor make an entry thereon, unless within twenty years 
 
51 
 
 after the right to bring such action, or make such entry first ac- 
 crued, or within twenty years after he or those from, by, or under 
 whom he claims, have been seized or possessed of the premises, 
 except as hereinafter provided." 
 
 Kevised Statutes Illinois, ch. 83, par. 1. 
 
 "If such right or title first accrued to an ancestor, or prede- 
 cessor of the person who brings the action, or makes the entry, or 
 to any person from, by, or undei- whom he claims, the twenty 
 years shall be computed from the time when the right or title so 
 first accrued." 
 
 Ibid. par. 2. 
 
 " The right to make an entry or bring an action to recover land, 
 shall be deemed to have first accrued, at the times respectively 
 hereinafter mentioned ; that is to say 
 
 "1st. When any person is disseized, his right to entry or action 
 shall bv3 deemed to have accrued at the time of such disseizin. 
 
 "2. When he claims as heir or devisee of one who died seized, 
 his right shall be deemed to have accrued at the time of such 
 death, unless there is a tenancy by the curtesy or other estate 
 intervening after the death of such ancestor or devisor ; in which 
 case his right shall be deemed to accrue when such intermediate 
 estate expires, or when it would have expired by its own limita- 
 tions." 
 
 Ibid. par. 3. 
 
 Evidently this statute of limitations would commence to run, 
 under paragraph 2, from the time when the right or title first ac- 
 crued to the ancestor or predecessor of the person bringing the 
 action. The right or title, therefore, first accrued to David Mills- 
 paugh in November 30, 1849. The date of the patent that gave 
 him title, and would, under the twenty years' limitation of this 
 statute, have expired November 30, 1869, for this action is brought 
 by Gilbert D. Millspaugh, who claims under him and his title, and 
 has no better or other claim under this title than David Mills- 
 paugh or his heirs, through whom this title passed to the 
 Me E wens. 
 
 "Under the statute, it is not essential that a party who takes 
 possession of land and holds adversely to the owner, should 
 enter under a deed or muniment of title to cause the limitation 
 
52 
 
 of twenty years to run in his favor. It is sufficient for a party to 
 take possession under a claim of ownership, and hold the time 
 required by the statute." 
 
 Weber vs. Anderson, 73 111. 439. 
 Tivrney vs. Chamberlain, 15 111. 273. 
 
 "It is the possession that bars the owner of a recovery. If the 
 owner permits the occupation of his land for a period of twenty 
 years, by a party asserting ownership, he will be barred by the 
 statute from making an entry, or bringing an action to regain 
 possession. No deed is required to the inception, the continuance 
 or completion of the bar." 
 
 "A deed is not necessary to transfer the possession of land held 
 adversely to the owner, and where one person succeeds to the pos- 
 session of another, and it becomes necessary to connect the pos- 
 session of the two to make the period required to bar the owner, 
 the transfer of possession may be shown by parol evidence." 
 
 Weber vs. Anderson, 73 111. 439. 
 Scheetz vs. Fitzwater, 5 Burr. 131. 
 
 "Doubtless the possession must be connected and continuous, 
 so that the possession of the true owner shall not constructively 
 intervene between them ; but such continuity and connection 
 may be effected by any agreement, conveyance or understanding, 
 which has for its object a transfer of the rights of the possessor, 
 or of his possessions, and is accompanied by a transfer of posses- 
 sion in fact." 
 
 Smith vs. Chapin, 81 Conn. 531. 
 
 'Not even a writing is necessary, if it appear that the holding 
 is continuous and under the first entry." 
 
 Crispin vs. Hi'iinnren, 50 Mo. 544. 
 Mcnkins vs. Blumenthall, 27 Mo. '-03. 
 
 "The mode adopted for the transfer of the possession, may give 
 rise to questions between the parties to the transfer; but as 
 respects the i-if/Jitx of Iliird persons, against whom the possession 
 is held adversely,, it seems to us to be immaterial, if successive 
 transfers of possession were, in fact, made, whether such trans- 
 fers were effected by Will, by deed or by mere a agreement, either 
 written or verbal." 
 
 McNeely vs. Lankan, 22 Ohio St. 32. 
 Murr vs. Gillian, I Caldwell, 511. 
 Overfield vs. Christie, 1 Ser. and Raw. 173. 
 Shannon vs. Kinney, 1 A. K. Marshall, 3. 
 
53 
 
 Under these decisions, there would seem to be no doubt but 
 that the complainant is barred from any supposed right to the 
 title or interest in this land. For the McEwens had possession 
 of the land from 1849, by the payment of taxes and by acts of 
 ownership, and claiming ownership, and actually owning one- 
 half of the land by virtue of the agreement with David Mills- 
 paugh and Christina Lynn, of 1846. In 1852, their claim was 
 recognized publicly by a court, in the condemnation proceedings 
 of the 111. Cent K. E. Co.. in which they were made defendants. 
 In 1856, they received deeds from all the heirs to this land, and 
 held continuous, peaceable, undisturbed possession, and paid the 
 taxes until 1880. From the time they look possession of this 
 land in 1850, to the time they sold, in 1880, thirty years of con- 
 tinuous, undisputed possession, had been held and enjoyed by them. 
 Their grantees held the same possession, and under the same 
 title, up to 1884 or 1885, making a continuous, undisturbed pos- 
 session, under the claim of the McEwens, for 34 years. The 
 averments of the bill fully admit the possession and holding of 
 
 
 
 the McEwens. 
 
 The statute above cited uses the terms "seized and possessed oj 
 the premises.'" As above shown, "seizin necessarily implies pos- 
 session, there being no difference between "seiziu" and "posses- 
 sion," if the possession is with the intent on the part of him who 
 holds it to claim a freehold. Yet there are distinctions in some 
 of the applications of the word ; thus, though there may be a 
 concurrent possession of the same lands by several persons, 
 there cannot be such concurrent seizin." 
 
 "Seizin is applied to estates of which there is no present pos- 
 session, such as remainders, meaning that the party has a fixed 
 vested right of future enjoyment. Moreover, the Lands may be 
 
54 
 
 for a time vacant, as regards possession, but seizin (cannot, at 
 common law,) be in abeyance or suspense ; it must always be in 
 some one as freeholder." 
 
 Abbott's Law Diet., Vol. 2, 457-58. 
 1 Washt., E. P. 3, et seq. 
 4 Kent Com., 388-89. 
 
 "Seizin means possession under some legal title, or right to 
 hold. The possession may be shown by parol. The title must 
 be sliowii by proper conveyance." Abbott's Law Diet., Vol. 2, p. 
 458. 
 
 Ford vs. Gomes, 49. 
 
 " Seizin in law arises when the grantor of real estate gives the 
 right of present possession to the grantee. Seizin in deed is the 
 actual possession of the freehold estate." 
 
 Hart vs. Dean, 2 Mac Arthur, 60. 
 
 Possession in law is the control or custody of a thing ; detention 
 of anything as one's own and for his enjoyment, occupation, 
 actual or constructive, of such object or property, and as applied 
 to lands, means an actual residence on the land, or such cultiva- 
 tion, use and enjoyment of the same, by visible acts of ownership, 
 as would give notice to the owner and others of the adverse pos- 
 session of the land. 
 
 Kimbo vs. Hamilton, 28 Tex. 560. 
 
 The owner may be said to have an "estate" in possession, unless 
 there be some intervening estate in the land, the owner of which 
 has a present paramount claim as against him. 
 
 Campau vs. Campau, 19 Mich. 116-123. 
 
 Under the averments of the bill it is evident that the McEwens 
 were seized and possessed of this land when the deeds were ex- 
 ecuted in May, 1856, by the Millspaugh heirs, if not in 1849, 
 when the land warrant was located and patent issued. 
 
55 
 
 Twenty years actual possession, claiming tide against the 
 world, is complete bar to other claims. 
 LavaUe vs. Strobel, 89 111. 370. 
 
 It has been held that "upon a possession of 36 years by one 
 tennant in common, not paying or accounting with his co-tenants 
 for rents and profits, or recognizing his rights to the premises, an 
 ouster would be presumed, and that the occupant held adversely, 
 and that an entry was barred and a recovery could not be had in 
 ejectment." 
 
 Doe ex dem, etc., vs. Prosser, 1 Cowpr. B. 217. 
 
 Also, "where one tennant in common disseizes other co-ten- 
 nants, and holds adversely, the statute will bar an action by his 
 co-tenants, and it was held that the sale of the whole tract by one 
 co-tennant to a third person, ihe sale being followed by adverse 
 possession, amounts to an ouster or disseizen of co-tennants, and 
 the statute of limitations will bar their action or entry." 
 
 Goervey vs. Urig, 18 111. 238. 
 
 Even in case of a trustee, the statutes of limitation will run, 
 the rule being well established that "so long as the duties of the 
 trustee remain undischarged, the trustee cannot avail himself of 
 the statute of limitations for his defense. Bat if the trustee 
 openly denies the trust and acts adversely, the statute will begin to 
 run, and mat/ ultimate in a bar to the. rights of the cestui que trust." 
 Albretch, Adm., etc., vs. Wolf, Aclmx., etc., 58 111. 186. 
 Taylor vs. Qnayle, 91 111. 378. 
 
 Neither the statute of limitation nor any rule of laches runs 
 against a party in possession. Such rules are solely for the pro- 
 tection of the party in possession against claimants out of pos- 
 session. 
 
 Mill* vs. Lockicood, 42 111. 110. 
 
 "It is well settled that where courts of law and equity have 
 concurrent jurisdiction, a claim barred at law will be barred in 
 equity, and even where the jurisdiction in equity is exclusive, if 
 the remedy sought is analagous to a remedy at law, the limita- 
 tion will apply." 
 
56 
 
 "In cases of direct and express trusts, the statute of limitations 
 will apply from the time the trust was disavowed by the trustee, and 
 an adverse right or interest is insisted upon, and made known to 
 the cestui que trust." 
 
 Hancock vs. Harper, 86 111. 445. 
 
 Thus, even if a relation of trust, as is averred, existed in the 
 case at bar, the trustees, the McEwens, certainly disavowed it in 
 1856, and set up an adverse claim under the deeds, and held the 
 same over 30 years, made that fact known to the cestui que trust, 
 the Millspaughs at that time when they procured their deeds, 
 and the statute of limitations then commenced to run, if not in 
 1849, when the adverse possession of the McEwens commenced, 
 under the above decisions the statutes of limitations commenced 
 to run at one or the other of those dates, and under either of them 
 is a complete bar to the relief sought by the complainant. 
 
 NOTICE OF THE SUPPOSED FRAUDULENT ACTS OF THE M'EWENS 
 < 
 
 TO THEIR GRANTORS. 
 
 We do not think the averments of the bill as to notice on the 
 part of the grantees of the McEwens, of their supposed fraudulent 
 acts in obtaining the title to the land in controversy, sufficient to 
 merit the consideration of the Court, and even if of importance 
 in some proceedings, they are immaterial in our view of the case, 
 for all rights of Gilbert D. Millspaugh were extinguished, if he 
 ever had any, long before the title passed from the McEwens by 
 the quit-claim deeds of 1856, and the undisputed possession by 
 them of the land until 1880, twenty-four years, beside the adverse 
 holding of possession and payment of taxes from 18 "0 to 1880. 
 
 The complainant has endeavored to weave a vail of fraud over 
 all the acts of the McEwens from the first agreement to procure 
 the land warrant to their' sale of the lands in 1880. But the 
 gauzy fabric is too thin to avail them at this late day There was , 
 
57 
 
 as we viewed it, no fraud in the original agreement to procure 
 the land warrant, pay all the expenses and have half of the 
 land. This was but one of a thousand similar, ordinary business 
 transactions, and one only of principal and agent or attorney, 
 and terminated when the warrant was procured, located and the 
 patent issued, or at fartherest when the deeds were made to 
 the McEwtns in 1856. There was no effort at concealment, 
 nor was there motive for it, at least until 1852, when the two 
 railroads passed through the land, for before that, it was unques- 
 tionably a swampy piece of land, of little, if any more, value than 
 it had cost in cash on the part of the McEwens. 
 
 As we have shown, David Millspaugh and Christina Lynn un- 
 doubtedly were notified of the issuance of the land warrant in 
 June, 1847, by the Commissioner of Pensions, whose duty it was 
 to notify all applicants, and their attorneys if any in the case, of 
 such fact. The acts of the McEwens were all public in locating 
 the land and procuring the patent, and in appearing in the con- 
 demnation proceedings of the 111. Cent. R. R. Co., in 1852. If 
 this land was so valuable, it is singular that some other specula- 
 tors, of whom there were always a plenty around Chicago, 
 did not purchase this land, as the legal title icos in the 
 Millx/ianghs in the land warrant, the patent office and the 
 land office of the government in Chicago, within a short 
 distance of the land, and any one could have ascer- 
 tained that the legal title was in tbe Millspaughs. But if the 
 averments of the bill are true, no one approached the Millspaughs 
 to purchase the very valuable land until the McEwens came to 
 purchase it, in 1856. The only thing that remains of even ap- 
 parent fraud at that time, on the averments of the bill, is the 
 reprepresentations of the McEwens as to the value of the land, 
 
58 
 
 and their averred statements, that by virtue of the payment of 
 taxes for over seven years, that they owned the whole tract, and 
 the charge of inadequacy of price paid for the quit-claim deeds. 
 We think we have fully shown that if the statements of the 
 McEwens were as averred in the bill, they were only their opin- 
 ions, and do not amount to any such undue influence or impo- 
 sition as in equity would justify any court to interfere. 
 
 The Millspaughs were all of age, sound of body and mind, in 
 1856, fully competent to contract, and not under any distress or 
 compulsion, and if not satisfied with the price offered, or the 
 statements made by the McEwens, they should not have sold 
 their interests or made the deeds. 
 
 But if all the averments of the bill were taken as true, the 
 laches manifested on the part of Archibald Millspaugh and the 
 other heirs in acquiescing in the title and possession of the land 
 obtained and enjoyed by the McEwens under the deeds of 1856, 
 and that of the complainant until last year, would defeat any 
 supposed rights now claimed under the bill. Most of the parties 
 to the transactions are now dead, and the averments of conceal- 
 ment of the issuing of the land warrant, its location, and the 
 procuring of the patent until 1856, upon which exists all the 
 charge of fraud, cannot be proved, if it ever existed. David 
 Millspaugh died in 1849, and his widow (Jane) in 1851, and his 
 son (Archibald) in 1871, and his widow (Sarah E.) in 1877, and 
 Milton McEwen is also dead. It is a fair presumption that 
 William S. Millspaugh and wife, and Christina Lynn and hus- 
 band, are dead. 
 
 The statutes of limitations have long since barred the claims 
 of the complainant, if he ever had any, as we think we have 
 
59 
 
 shown, and that there is now no relief for the complainant upon 
 any grounds presented in the bill, nor upon any view taken of the 
 case as presented by the complainant, and we therefore ask that 
 the demurrer be sustained, and the bill dismissed. 
 
 BANDERS & HAYNE8, 
 For Thomas C. and Miltoii McEwen. 
 
-KF 
 V7<. 
 
 1H5 
 I2SS