Page:Federal Reporter, 1st Series, Volume 7.djvu/648

 636 FEDERAL REPORTBB. �grant unto the said James Calloway, B. C. Calloway, Thomas S. Calloway, their heirs and assigns, Calloway, Cummings & Co., their hetrs and as- signa, forever, all the necessary mining privileges on the aforesaid lands, right of way, wood, and water, together with the right of occupancy of the necessary portions of said lands as may be necessary for the erection of buildings and residences for the accommodation of all such persons as may be engaged in operating and carrying on said mines and their neces- sary business, together with all the necessary appartenances, without let or hindrance, thereto belonging or in anywise appertaining : provided, the said James Calloway, B. C. Calloway, Thomas S. Calloway, Calloway, Cummings & Co., their heirs and assigns, interfere as little as may be with the farming privileges of the said lands. �In testimony whereof we have hereunto set our hands and seals this ninth day of November, A. D. 1854 �[Signed] Jno. L. Millbk. [Seal.] �[Signed] Georoe E. Millee. [beal.j, �Signed, sealed, and delivered in the presence of William Haekis, William Miller. �The execution of this grant is admitted by the defendants in the pleadings ; but they insist that it was procured by the fraudulent misrepresentations of the grantees, and, also, that at the time of the execution it was falsely read to the grant- ors, John T. Miller and George E, Miller, two of the present defendants. The defendants further insist that the said grant only conveyed an incorporeal hereditament — the privilege of digging for minerais and metals — and they are not entitled to the specifie relief demanded in the complaint. The de- fendants further insist that the grant contains a condition subsequent whieh has not been performed, and the estate conveyed became void by reason of the failure to perform said condition ; and as the grantors were in full possession of the premises at the time of said breach, the estate at once became revested in them, and they had full power to convey to the defendant corporation in 1873. �Several other defences were set forth in the pleadings which need not be stated, as they were not considered in the trial of the case. �After the pleadings were filed in the state court the case was removed into this court upon the petition of "The Ore Knob Copper Company," a non-resident defendant, acting 'inder a charter obtained from the state of Maryland. ��� �