Page:Federal Reporter, 1st Series, Volume 7.djvu/590

 578 FEDERAL REPORTER. �tion. The witness McGregor testiues that wben, as the at- torney of Pellows, he called on Merrick in 1864 to effect a settlement, Merrick exoused himself from payment on the ground that he had not reoeived a deed of the land as prom- ised, and had in consequence sustained injury. Indeed, the circumstances tend strongly to show an estoppel resulting from express admissions and positive acts made and done in recognition of Pellows' title. It is true that a long time has elapsed since Merrick's possession began, but that cannot help the defendant's case unless it was a possession upon which a valid claimof title could be founded within the prin- ciples of law already adverted to. Particular attention was called to the release of this land from the lien of a judgment against Worthington, executed by the bank of MHwaukee, and in evidence. This, it may be admitted, is a ciroumstanoe tending to show that it was at least supposed at the time that Worthington held the title. But there is no proof that he did in fact have the title, and it is a noticeable feature of the proceeding that the bank judgment was recovered within six months after Merrick took a bond for a deed from Pel- lows, and before even the first instalment of the purchase money was due, and after Worthington had undertaken to convey to Merrick. �A pencil memorandum, made, I think, by Fellows, is in evidence, and is to the effect that Worthington sold the land to Merrick, but under objection, on the part of Fellows, to giving title until $1,000 was paid ; that Worthington gave a writing of some sort, and then, to make it safe, he was to take the title, and himself give personal security, and Mer- rick's note in addition ; that, because Merrick would not give real estate security, he (Fellows) thought it best to take Worthington' s mortgage and Merrick's note; and then, he says, the papers were nearly a year at Milwaukee for that purpose. The memorandum is not sufficiently full to quite explain itself, but to the extent that it is self-explanatory it indicates that the arrangement it speaks of was never carried out, and at all events it is insufficient to satisfy the mind ��� �