| Iowa | Dec 12, 1883
I. It will be conceded that the plaintiffs are entitled to the relief asked in the petition, if they on the trial established the allegations thereof. It is admitted that the plaintiffs are the widow and heirs at law of Josiah Wearin.
There was introduced in evidence a deed from Mills county, conveying the real estate to Josiah Wearin in June, 1870, in pursuance of a pre-emption made in 1855, but there is no evidence that Mills county was the owner or had. any title to the real estate in controversy. This being so, the evidence fails to show that Josiah Wearin at his death had title. In the absence of evidence, it cannot be presumed that the land in question was swamp land; nor can it be presumed that, if' it was such, the title thereto was vested in said county.
II. There is no evidence tending to show that Josiah Wearin or the plaintiffs were in actual possession of the real estate. But counsel claim that it should be presumed that they were, because of the conveyance from Mills county.
We have no occasion to determine what the rule would be,, if such conveyance vested the legal title in the ancestor of the plaintiffs. But, as has been seen, it does not have such effect, and, therefore, to recover, it was incumbent on the plaintiffs at least to show such actual possession as is alleged in the petition.
Affirmed.