Page:Federal Reporter, 1st Series, Volume 3.djvu/392

 70NES V. KWLEB. dSi �block 172J is within the tract conveyed to the plaîntiff. If so, defendant has the earlier deed and the better title. There is nothing on the face of the plat to fix definitely its precise location; and great difficulty is experienoed now in determining this question, because of the obliteration of the landmarks of the survey, and the absence of a record fixing a starting point from some natural or permanent monument, •which can now be fixed. �Upon a oaref ul examination of the evidence I have reached the conclusion that the initial point from which the survey, relied upon by the defendant, was made, was the correct one. �The question is certainly not one free from doubt and diffi- culty, but I think the weight of evidence supports the theory of the defendant. Whatever doubt I might otherwise hav« would be resolved in fàvor of the defendant, by consideration of the fact appearing in evidence that this identical contro- versy has been litigated in the courts of Nebraska and ,de- cided in favor of defendaiït. See Horbach v. Miller, 4 Neb. 31. �It is true that Jones, the present plaintiff, was not a party to that suit, and is, therefore, not abaolutely concluded by the judgment therein. But thQ record of the case ia never- theless admissible as evidence of the defendant's title as against Jones, who was the grantee of Horbach, the latter remaining in possession at the time of the suit. Under the circumatances adduced in evidence I regard that adjudication as entitled to great weight in the determination of the ques- tion at issue in this case. Horbach had warranted the title, and being himself in possession assumed the duty of defend- ing the suit. He raised the same questions that are now pre- Bented, and they were contested throughout a protracted and earnest litigation. It is not to be presumed that Jones was ignorant of this litigation. Assuming that he was the bona Jide purchaser and the real owner — which, however, does not appear — I should be indined to hold, upon aU the evidence, that Horbach was acting for him in taking the defence. �Upon the question of the admissibility of the record in the ejectment suit, as evidence against Jones, see Chirac v. Rein- ecker, 2 Pet. 613. �v.3,noJ— 25 ����