Epitomized Opinion

This was a suit in equity for a partition of land and an accounting. In 1833 by treaty between the United States and a band of Ottawa Indians residing in the vicinity of the Maumee River there was reserved to Au-to-kee, an Indian Chief, a tract of land containing about 320 acres. The treaty stipulated that the land was not to be alienated without the approval, of the President of the United States. Ijn 1835 Au-to-kee sold and conveyed to Forsythe and Knaggs, in fee simple, a parcel of 80 acres of this land. During the same year Knaggs and For-sythe and their respective wives signed a deed to one Daniel Chase for this land. The deed was duly witnessed and recorded, but Knaggs’ name did not appear in the acknowledgment.. Knaggs lived 30 years afterwards but did not question the validity of the deed. Chase conveyed the land to Clark, who conveyed the land to defendant in 1906. The President approved the conveyance of Au-to-kee in 1854. In 1920 one of the heirs of Knaggs brought this action claiming that he owned an interest as the conveyance from his ancestor w.as defective. The defendant set up .various defenses among which were: that the deed was duly executed; the tax deed of 1845; adverse possession; and laches on plaintiff’s part. The defendant also asked by counter-claim the quieting of its title. Judge Killits held for defendant and quieted the defendant’s title. The plaintiff appealed to the U. S. Circuit Court. In affirming the judgment of the lower court, this court held:

1. A case is at issue, within the meaning of equity rules 47 and 56 (198 Fed. xxxi. xxxiv, 115 C. C. A. xxxiv), when the answer is filed, and the subsequent filing of an amended answer does not of its own force operate to extend the time for hearing.

2. Under GC. 8558 of Ohio, the record of a deed was admissible in evidence and it was valid at least as a contract to convey, as against the heirs of such grantor.

3. Vendees under a defective deed, or their successors, who are in undisputed possession, are not chargeable with laches, which will bar a suit for specific performance of the contract to convey, and especially in view of Gen. Code Ohio, 11236, expressly so providing.

4. Delay by complainant for more than 45 years after reaching majority before asserting her claim as heir of a grantor was such laches as to bar a suit for its recovery where during the greater part of the time defendant and its predecessors1 had been in possession under claim of title, and had expended large sums in improvements.

5. The federal courts enforce the doctrine of laches when the lapse of time has been shorter than that prescribed by state law, where the peculiar circumstances give rise to an equity which the court is bound to protect.