Tmvnn v. Tmsou. 33
The right to the patent, as was said by Mr. Justice Frnmn in Storrs
v. Stark, 6 Wall. 413, became perfect when thescertificate of the sur-
veyor general was received by the commissioner of the general land-
oflice, and he found no valid objection thereto, and that none was so
found is shown by the subsequent issue of the patent thereon. Bar-
ney v. Dolph, 97 U. S. 656. In the _division of the donation it ap-
pears that the west half was set apart to Nancy, although she was 1
then dead; but such division, being the basis of the patent, would, I A
suppose, by analogy, inure, under the act of May 20, 1836, (5 St.
31,) to the benefit of the persons to whom the act gave the land in
such contingency. See Starrs v. Stark, supra, 427.
Upon the argument counsel for the defendant also insisted that
these suits could not be maintained because the plaintiffs were not in I
the actual possession of the premises, and suggested that the suits
ought to be stayed, at least until the plaintiffs tried theirtright to the
possession by an action at law. It is not apparent how this question
\ can arise on the consideration of these pleas of the statute of limita-
tions. But if it can the answer is very plain. And, first, the pleas
admit, in effect, that the title to two-fifths of the westem half of the
donation was in Lownsdale,—one·iifth as the donee of the United
States, upon the death of Nancy, and the other Hfth as the grantee
of her daughter, Isabella E.; that by the partition of the tract in
1865 the whole of block 254 was set apart to the heirs of Lownsdale,
subject to the eifect of his deed of quitclaim to Chapman of June 25,
1850. And as to that it was held in`Ficlds v. Squires, 1 Deady, 379,
that this deed only passed the bare possession, the title being still ,
in the United States, but that by virtue of the covenant therein for l
further assurance, in case Lownsdale obtained title from the United
States, his heirs were estopped to claim against the grantee in said
deed, or those claiming under him, the one-fifth interest therein which
he took from the United States on the death of Nancy, but `as to the
hfth purchased from Isabella E. he was not so estopped; and that
Lownsdale’s grantee in the deed of June 25, 1850, nor those claiming
under him, neither lost nor gained by the partition, and that, conse-
quently, the defendants interest in the premises is an undivided one-
fifth. See Davenport v. Lamb, 13 Wall. 429.
From this it is plain that the legal title to the undivided four-
fifths of these premises is in the plaintiffs, and that they are entitled
to maintain these suits for partition unless they are barred by lapse
of time.
v.15,no.1—3 .