Watts’s representatives urge that the district court erred in overruling their motion to dismiss the Gregg appeal. Under the statute authorizing the action the fund stood in place of the land. As the church was in possession adverse to the claims made under Gregg and Watts, neither set of those claimants eould maintain any action at law to determine which of the two had the better right. The church might have called both sets into court to quiet its own title. In such case, neither of them could of right demand a trial by jury. This action grows out of a proceeding, by which the railway company sought to take the place of the church, as actual possessor of the land, and at the same time to make sure that the purchase money *630should go to the real owner, so that its title might remain undisturbed. Although Robert Gregg’s heirs filed the petition in the common pleas, we think the action should, as between them and the representatives of Watts, be treated as if these rival claimants were in court at the instance of the church, under a bill of peace. Hence, it seems to us that the motion to dismiss the appeal was properly overruled. The proceeding for appropriation was under the Act of April 23, 1872, (69 Ohio Laws, 88), but as!sections 18, 19, and 20 of that Act are substantially the same as sections 6442, 6443, and 6444 of the Revised Statutes, we refer to the latter. They do not grant any right to a trial by jury. They only preserve existing rights as to mode of trial. Their appeal being sustained, the next question is as to the validity of their claim.

The supreme courts of the United States and of Ohio, have concurred in holding that a legal entry, properly completed, appropriates the land covered by its terms; that a survey of land not within those terms is void; that until after patent issued the doctrine of notice does not apply; that prior to the patent no legal rights except that of the United States can be obtained; that the equities are to be governed by recognized equitable rules; that when the patent is issued, the grantee takes the legal title in trust for him who has the controlling equity. The Ohio decisions on these points have been collated in Swan & Critchfield’s Statutes, p. 555, and in the Ohio Digest. See also Massie v. Watts, 6 Cranch, 148, and Kerr v. Watts, 6 Wheaton, 550. Counsel before us have cited freely. We will not quote. We are satisfied that Nathaniel Massie, while employed to complete an entry and survey for a distant principal, made a void survey for him and attempted to appropriate the O’Neal land for himself; that he was properly charged as taking that land in trust for Watts; that Watts’s equity was prior in time to that of Robert Gregg, and superior thereto in degree, because the entry record was accessible to him, and Watts was not guilty of laches, and that Massie’s heirs took the patent in trust for Watts. *631Therefore we think the finding that the Gregg claim is invalid was right.

This brings us to the issues between the church and the claimants under Watts. The record satisfies us, clearly and without a doubt, that John Watts intended to convey the full title to lot 86 to the church. But we are urged to hold that the district court erred in sustaining the equity of the church because it was a mere donee, and that too for a use not a charitable public use. Although many cases are cited none of them are so similar to this one as to require us to reverse the decree of the trial court.

The deed before us is a perfect deed. Under Hall's Lessee v. Ashby, 9 Ohio., 96, it passed the legal title to lot 81. If the church had sought to possess that lot, could Watts have defended his own possession? Or if they had entered, could he have ousted them without asking equity to use its power on his behalf? ' In such a ease would equity have granted him relief from the effect of his own mistake, without requiring him to correct that mistake ?

If the mistake had been discovered in his lifetime, probably it would have been corrected by an exchange of deeds between him and the church. Although it was not discovered, the parties by their conduct effected a correction. Although its deed was on record, the church’s action allowed the Watts estate to convert to its own use the more valuable lot of the two, while Watts and his devisee and executor never made claim to any interest in lot 86. Although it is perhaps true that neither of them could have ejected the church, because they had permitted burials to continue after the decree of 1821, the fact that they made no claim of any kind is not without weight under the peculiar circumstances of the case.

We think that although the church lost, by the passage of years, all right to claim lot 81, there was a time when it might have used the deed to Watts’s prejudice. Believing that its deed gave it lot 86, it remained quiet; and because of that belief, justified by Watts’s conduct, its position was materially altered long before 1877.

*632Moreover, the value of lot 86, in 1823, was not greater than one dollar. Watts’s hand and seal tell us that he conveyed the lot in consideration of that sum, and that he received it. No witness has said that he did not receive it. The deed itself refers to no other consideration. While evidence was admissible to show that the money was not paid? an equity court ought not to presume that the one dollar was nominal or that it was not paid, merely to give to the representatives of John Watts a lot which their ancestor intended to convey in fee simple to the church, and died believing that he had so done.

If Watts had made no deed his quiescence would only have effected a dedication for a graveyard, and on the termination of the use his representatives would have a clear right to the lot. But having made a deed which he intended should convey the entire title, and which he supposed had so done, his conduct is properly referable to the deed. Taken with the deed his conduct was a confirmation of the conveyance of lot 86. Those representing him must be held by a like construction, at least up to a disavowal. For more than half a century, on the side of the grantor, as well as on that of the grantee, the deed of 1823, has been treated as a complete conveyance of lot 86. We cannot think the trial court erred in giving effect to the conveyance so made. The cases in which equity has refused to correct mistakes differ, as it seems to us, widely and materially from the one at bar. A complete conveyance of one lot, with actual possession of the other by the grantee for more than half a century, under the deed as understood by the parties, presents a case swi generis. We are unwilling to' make a precedent denying the grantee’s equity in such a case.

A number of other questions were incidentally made. A brief reference will be made to some of them.

The Robert Gregg heirs urge that the church is estopped to deny their title, because it accepted Nathan’s deed. It is well settled that the grantee in a deed that purports to convey the entire title is free to buy in, or accept, and to assert any other title. Nathan Gregg’s deed left in him a *633reversion assertable whenever the specified use terminated. Perhaps the church could not use its possession taken under his deed, to the prejudice of such reversion. But, in this tripartite contest, the Watts title defeats that of Gregg without any aid from the church. The Greggs cannot rightfully complain because the church so uses the Watts deed as to transfer the victory to itself.

The Watts heirs urge that the church did not act, or claim, or hold, under the deed of their ancestor, because, at some of the meetings of its trustees, those present seemed ignorant of the Watts deed, and spoke, or resolved, as if they only knew of and relied on that of Nathan Gregg. It is well known that corporation officers frequently change. It is natural, therefore, that after the passage of years incoming officers should be ignorant of many facts in the history of the corporation. The incidents put in evidence established only that, when the Watts deed was almost 50 years old, officials learning from the early minutes of the corporation that the lot was conveyed' to the church in 1810, did not look farther, but supposed that the deed of that year constituted the church’s title. The acceptance of the Watts deed, and its prompt presentation for record, sufficiently prove that from its delivery'-, the church held under it, as grantor and grantee supposed it to be.

The Watts heirs objected to the admission in evidence of the deed, made by Watts and by his executor and devisee, after November, 1823, conveying lots adjacent to or in the vicinity of lot 86. The conveyance of lot 81 to Shepherd was a part of the conduct of the parties touching the two lots in question. As such it was admissible and valuable. As to the others, their presence in the .record did not and could not do any harm to the Watts claim, even if they ought not to have been admitted. If that admission was error it was error absque injuria. A majority of the court affirms the judgment complained of.

Judgment affirmed.

I concur in the finding that the claim of the Watts heirs is superior to the Gregg title. And believing that the church has not succeeded to the Watts title it is not neccessary to enquire whether it may dispute the Gregg title under which alone it entered into'and retained possession.

I dissent from the conclusion that the church has any right or equity under Watts.

The issue arises upon the cross petition filed by the church setting up the Watts deed of 1823, and .seeking its correction upon the ground of an alleged mistake in the description of the property intended to be conveyed, namely, that the deed conveyed lot 81 when the intention was to convey lot 86. It was given on the expressed consideration of one dollar to the trustees of the church and their successors forever. No trust is indicated; and the church as a private incorporated society took the title to lot 81 in fee simple, and could ostensibly have sold the same and disposed of the proceeds at will. If the conveyance had been of lot 86, which was at the time an old graveyard, it would have been subject to the easement and have passed the reversion only. The claim of the church rests on the validity of the Watts title and on an unexecuted contract to convey it.

To entitle a party to the equity of correction and specific performance, the mistake must be shown to have been mutual and must be made out by clear and indisputable evidence; and the contract or promise itself must be supported by a valuable consideration. The decision of the majority of the court is placed on these propositions, viz.: 1st. That the testimony clearly establishes the mistake; and 2d. That the equity is available because the expressed consideration of one dollar is a valuable consideration in this particular case; and that if it is not, the long acquiescence of the Watts heirs is an equivalent by way of estoppel.

The controversy arose some fifty years after the date of the deed. Watts and the witnesses to the deed and all *635other persons supposed to have any personal knowledge of the transaction were dead when this controversy arose. The theory of mistake rests wholly on conjecture. Its most plausible, if not sole support is the fact that Watts died leaving an outstanding contract for the sale of lot 81, which was executed by his heirs. But many conjectures readily, suggest themselves, some of which are quite as plausible as that of the specific mistake relied on here.

And after this great lapse of time, with no intervening adverse claim or question of any kind, the law wisely supplies the most satisfactory conjecture in the presumption of a lost reconveyance. At any rate mere conjecture falls far short of that clear proof required by law.

But assuming the fact of mistake as claimed, the conclusive objection remains that the promise was voluntary. The expressed consideration was one dollar; and there is no evidence on the subject save this acknowledgment in the deed. A deed is the act of the grantor, and is made presumably at his expense; and everybody knows that as a consideration for land expressed in a deed the sum of one dollar is always a nominal consideration. In the absence of any testimony to the contrary it would seem that this acknowledgment was for a technical and fictitious purpose, like that of a pepper-corn in a lease. It is nominal in fact, though valuable in kind. And in a deed it is held to express value to some extent, and parties are sometimes estopped to set up the truth that it is nominal. But of course it is not so in the case of executory contracts or promises.

I confess my inability to appreciate the proposition that the Watts heirs are in any wise affected by their alleged acquiescence. They were owners of the reversion only, arid had no right or duty with respect to the easement except to acquiesce in it. As long as the lot contained graves they, as reversioners, wex’e postponed. Their only acquiescence was in doing nothing, whexx there was no adverse possession or claim and no right to do anything. They had no cause of complaint, not even “slander of title.” The little (and *636it was very little) that was done by the church in repairing fences, etc., was done at the expense of the public on subscription for the purpose, and was done in the line of their agency or custody over the easement, and was not only consistent with its possession under Gregg, but in law and fact is referable to it. For what duty can a reversioner as such have in the control of the easement ? I think that this alleged equity is an afterthought.

It may not be amiss to add that no neglect or carelessness is charged against the Watts heirs; whilst it stands confessed that for more than fifty years before suit the church had the deed sought to be corrected; and if it now has a cause of action it had it during all that time. This is a circumstance of great weight, especially in chancery. As Story observes, “great delay is a great bar in equity.”