Joseph Story

“ Here, the title, set up by the plaintiffs, is not derived from or under the decree or release; but is a legal title paramount to both. Are the plaintiffs then estopped in law to set up that title? We think not. The bill in equity does not estop them; for that bill stated the derivation of title correctly; and the decree conforms to it. Neither the title set up in the bill, nor the decree, asserts any claim repugnant to the present claim. The decree requires Stone to convey the very land in controversy. ”

“ It has, indeed, been suggested at the bar, that Symmes produced the plat, after Stone had obtained his title to the premises, and therefore, had an interest to maintain the title of Harmer, in order to escape from his warranty to the latter, under his deed of 1791. But no such interest could exist; for whatever was the true location of the lots conveyed by that deed, Symmes undoubtedly had the title at the time; and Stone, not being a second purchaser by deed from Symmes, but a mere purchaser at a sheriff's sale on execution, could only take such title as Symmes than possessed in the premises. ”

“ It proves nothing; and can be considered in no other light than as the introductory language of the witness himself.
The plaintiffs then offered to read from Dr. Drake's work, called a Picture of Cincinnati, the date of the surveying and laying out lots in that part of Cincinnati which lies east of the garrison reservation. To the admission of this book in evidence, the defendants objected, the author being (as was agreed) alive, and his deposition, as to other matters, taken in the cause. The court overruled the objection, and admitted the evidence to go to the jury. ”