The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the Court.
This cause was argued by Mr. Rowan for the plaintiff, and by Mr. Talbot for the defendant.
This suit was brought in the Court of the United States for the Seventh Circuit and District of Kentucky, against the trustees of the town of Lexington, and others, to obtain a conveyance of in and out lots, No. 43, in that town, or of such other lots in lieu of them as might still remain to be conveyed, by the trustees. The whole of out lot No. 43, and a part of the in lot, had been conveyed to other persons who had been in possession for such a length of time as to bar the plaintiff's action. The bill was, therefore, dismissed by the plaintiff as against those defendants, and continued against the trustees.
The commonwealth of Virginia had, in 1773, by an act commonly called 'the land law,' reserved 640 acres of land for the benefit of those who had settled in a village or station, that it might be afterwards laid out into lots for a town, and divided among such settlers. The inhabitants of Lexington purchased 70 acres adjoining the reserve of 640 acres, and after laying the whole off in lots and streets, petitioned the assembly to establish a town. The legislature, in May, 1782, passed an act, vesting the whole 710 acres in trustees, who were empowered to make conveyances to those persons who had already settled on the said lots, as also to the purchasers of lots theretofore sold; and to lay off such other parts of the said land as was not then laid off and settled into lots and streets, and to sell, or otherwise dispose of the same, for the benefit of the inhabitants.
James McConnell was one of the settlers in Lexington, and was killed by the Indians in 1782. His brother and heir at law, Alexander McConnell, filed this bill in 1815, and founds his claim on proof that he had in his lifetime erected a tannery on in lot No. 43, on which was a large spring; and on the following order of the board of trustees:
'At a meeting of the board of trustees for the town of Lexington, September 30th, 1782, No. 43 in and out lot granted to James McConnell, to be appraised, and the valuation thereof redound to the heirs of said McConnell, deceased.'
The trustees, in their answer, insist that in lot No. 43 never was granted to James McConnell, but a part of it has always been considered as reserved, on account of a spring upon it, for the use of the inhabitants. They are informed by the old settlers that the privilege of establishing a tannery on that lot was in the year 1781 granted to James McConnell, who did establish one, and that the order of appraisement was intended to cause a valuation of the improvements and of the leather in the tannery, not of the lot itself; and that so much of the entry as applies to the lot itself is a mistake of the clerk. They say that other lots, not these, were granted to McConnell. They also insist on the length of time which has elapsed, and on the statute of limitations.
Several certificates from the clerk, and extracts from the record books of the trustees, are filed as exhibits in the cause. From one of these certificates it appears, that, on the 20th of December, 1781, at the first arrangement of in and out lots of the town of Lexington, among the settlers, in lot No. 18, and out lot No. 37, were granted to James McConnell as his donation lots. The out lot appears to have been transferred by John Clarke, whose connexion with McConnell is not stated, to Robert Parker, to whose assignee a conveyance was made by the trustees in August, 1785.
An assignment by Alexander McConnell, as heir at law of James, of his title to an out lot in the town of Lexington, made in May, 1795, is produced: but this assignment neither mentions the number of the lot, nor the name of the assignee.
Another certificate from the clerk states, that in lot No. 18 was granted on the 26th of March, 1781, to William Stule, and afterward, on the 20th of December, 1781, to Benjamin Hayden. It was afterwards, on the lst of July, 1783, awarded to James McConnell, and afterwards, on the 8th of March, 1785, was forfeited. The cause of forfeiture is not mentioned. The presumption is, that it must have been on account of the non-performance of some condition on which the allotment was made.
The entries of the orders made by the trustees seem to be in great confusion. This may be well accounted for by the then situation of that country. Some time in the year 1784, or 1785, Robert Parker, then clerk of the board of trustees, was ordered to transcribe their old books. Many of their entries were made on small scraps of paper, and on backs of old letters. The book then made out is said to be lost. There is, however, a book of records.
The imperfect and confused state of the books has made it necessary to resort to the testimony of witnesses to supply facts which the books do not disclose.
It is very well ascertained, that the large spring, below which McConnell's tan vats were sunk, was enclosed within the stockade, and was used by the inhabitants of the fort generally. It is also in proof that the settlers were each entitled to an in and out lot, and that the trustees frequently allowed those who were ...