22 Ind. 55 | Ind. | 1864
This was an action instituted in the Circuit Court for the recovery of land. Robert Alberts, who brought the suit, died before trial, and in his stead his heirs were made the plaintiffs; Ashley was the defendant. The issues were submitted to the Court upon the following agreement of facts:
“It is agreed that the land in controversy was granted to
Upon these facts the Court found 'for the plaintiffs, and having refused a new trial, rendered judgment, &c.
It must be conceded that the deed from Knaggs to Eberts, could not, without the consent of the President, operate as a conveyance; but his consent to the execution of such deeds may be given before or after their execution. Doe v. Beardsley, 2 McLean 412. The deed then became operative on December 14,1846, unless the then adverse possession rendered it invalid. And we have often decided that “the convey
There are, however, decisions to the effect that “a deed would not relate back to the time of the contract to .the injury of strangers.” Fite v. Doe, 1 Blackf. 127; Greewold v. Bard, 4 Johns. 230. But these decisions were made in reference to cases in which the stranger had an interest in the land at the date of sueh contract. “"Whenever it is intended to be shown that nothing passed by a grant, by reason that at the time there was a possession in another adverse to the grantor, the time to which the grant is to relate, is the- time when the bargain or contract for the sale or purchase of the land was finally concluded between the grantor and grantee, and consequently any intermediate adverse possession before the execution of the conveyance, which is the technical consummation of evidence of the grant, can never affect it.” See the opinion of the Court in Jackson v. Raymond, supra,.. This exposition, it seems to us, is correct, and if the act of the President can he regarded the consummation of the contract of sale, and we think it can, the defence set up by the defendant is not maintainable. Indeed this branch of the case presents but one inquiry, namely: Bid the ratification of the deed render it valid from the date of its- execution ? This question is answered affirmatively in Doe v. Beardsley, supra, and that decision is, in our judgment, a proper construction of the act of Congress to which we have referred. Anderson v. Lewis, Freeman’s- Miss. R., p. 178. We are advised that the reasoning of the Court, in Murry v. Wooden, 17. Wend. 538, is to some extent in conflict with the view we have taken; but the facts of the case are essentially different from the one before us, and we are not inclined to follow it.
The judgment below is affirmed, with, costs.