DAVIE
v.
BRIGGS.

*633 The cause was argued by Mr. James Lowndes and Mr. Edward McCrady, Jr., for the appellants, and by Mr. Samuel F. Phillips for the appellees.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

The appellants, as the heirs-at-law of Allen Jones Davie, deceased, assert an interest in the proceeds of a sale which took place in June, 1853, of a tract of land in Guilford County, North Carolina, known many years ago as the McCulloch gold-mine.

Whether the defence, so far as it rests upon the Statute of Limitations of North Carolina, can be sustained, depends upon the evidence as to the time when Allen Jones Davie died. The learned counsel for appellants insist that, consistently with the legal presumption of death after the expiration of seven years, without Allen Jones Davie being heard from by his family and neighbors, the date of such death should not be fixed earlier than the year 1858. In that view, — excluding from the computation of time the war and reconstruction period between Sept. 1, 1861, and Jan. 1, 1870, as required by the statutes of North Carolina (Johnson v. Winslow, 63 N.C. 552), — the suit, it is contended, would not be barred by limitation. The general rule undoubtedly is, that "a person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death." Stephen, Law of Evid., c. 14, art. 99; 1 Greenl. Evid., *634 sect. 41; 1 Taylor, Evid., sect. 157, and authorities cited by each author. But that presumption is not conclusive, nor is it to be rigidly observed without regard to accompanying circumstances which may show that death in fact occurred within the seven years. If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years. Mr. Taylor, in the first volume of his Treatise on the Law of Evidence (sect. 157), says, that "although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death; and, therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence, and can neither rely, on the one hand, on the presumption of death, nor, on the other, upon the presumption of the continuance of life." These views are in harmony with the settled law of the English courts. In Re Phene's Trust, Law Rep. 5 Ch. 139; Hopewell v. De Pinna, 2 Camp. N.P. 113; Reg. v. Lumley, Law Rep. 1 Cole. Cas. 196; Re Lewes's Trusts, Law Rep. 11 Eq. 236; 32 Law J. Ch. 104; 40 id. 507; 29 id. 286; 37 id. 265. In the leading case in the Court of Exchequer of Nepean v. Doe dem. Knight (2 Mee. & W. 894), in error from the Court of King's Bench, Lord Denman, C.J., said: "We adopt the doctrine of the Court of King's Bench, that the presumption of law relates only to the fact of death, and that the time of death, whenever it is material, must be a subject of distinct proof." To the same effect are Mr. Greenleaf and the preponderance of authority in this country. 1 Greenl. Evid., sect. 41; Montgomery v. Bevans, 1 Sawyer, 653; Stevens v. McNamara, 36 Me. 176; Smith v. Knowlton, 11 N.H. 191; Flynn v. Coffee, 12 Allen (Mass.), 133; Luing v. Steinman, 1 Metc. (Mass.) 204; McDowell v. Simpson, 1 Houst. (Del.) 467; Whiting v. Nicholl, 46 Ill. 230; Spurr v. Trumble, 1 A.K. Mar. (Ky.) 278; Doe ex dem. Cofer v. Flanagan, 1 Ga. 538; Smith v. Smith, 49 Ala. 156; Prim v. Stewart, 7 Tex. 178; Gibbes v. Vincent, 11 Rich. (S.C.) 323; Hancock v. American Life Insurance Co., 62 Mo. 26, 121; Stouvenal v. *635 Sephins, 2 Daly (N.Y.), 319; McCartee v. Camee, 1 Barb. (N.Y.) Ch. 456. And such seems to be the settled doctrine in North Carolina. In Spencer v. Moore (11 Ired. 160), the Chief Justice of the Supreme Court of that State said: "The rule as to the presumption of death is, that it arises from the absence of the person from his domicile without being heard from for seven years. But it seems rather to be the current of the authorities that the presumption is only that the person is then dead, namely, at the end of seven years; but that the presumption does not extend to the death having occurred at the end, or any other particular time within that period, and leaves it to be judged of as a matter of fact according to the circumstances, which may tend to satisfy the mind, that it was at an earlier or later day." The question again arose in the subsequent case of Spencer v. Roper (13 id. 333, 334), when that court reaffirmed Spencer v. Moore, and, referring with approval to the doctrine announced by the Court of King's Bench in Doe dem. Knight v. Nepean (5 Barn. & Adol. 86, same case as 2 Mees. & W. 894, supra), said: "Where a party has been absent seven years without having been heard of, the only presumption arising is that he is then dead, — there is none as to the time of his death."

We therefore follow the established law when we inquire whether, according to the evidence, Allen Jones Davie died at an earlier date than at the end or expiration of the seven years when the legal presumption of his death arose. It seems to us that, upon the showing made by the complainants themselves, the conclusion is inevitable that he died some time during the year 1851. As early as July 23, 1853, a written notice was given to Peters, Sloan, & Co., in which they were advised that Colonel Cadwalader Jones and the children of Allen Jones Davie claimed an interest in the proceeds of the sale made by them and Beckham in June, 1853, to the Belmont Mining Company. That notice was signed by "Ralph Gorrill, sol'r of C. Jones and the heirs of A.J. Davie dec'd." The notice is produced and relied upon by the complainants in support of their claim.

Further, in the seventh paragraph of the complainants' bill they say, "That the said Allen Jones Davie departed this life, *636 as it is believed, some time in the year 1851, but the precise date of his death is not known, nor can any direct proof be obtained, nothing having been heard from him since the ____ day of November, 1851, when some of a party with whom he had undertaken a journey by land to California, through the country of hostile Indians, returned, saying that the party had been some time fighting the Indians when they left, but that said Allen Jones Davie, with the rest of the party, resolved to press on and fight their way across the country, in which struggle it is believed that he, with the rest of the party, perished, as none of them have ever been heard of since." Again, in the deposition of Cadwalader Jones, Jr., we find this language: "As to Allen Jones Davie, the precise time of his death has never been ascertained, but he perished (it is supposed) in the Indian Territory, April or January, in the year 1851, and has never been heard of since." But this is not all the evidence in the record upon this point. In a statement of "admitted facts," filed in the cause, we find the following: "That the time of the death of Allen Jones Davie is not known, but his death is supposed to have happened late in the fall of 1851, say 1st December, since which time he has not been heard from."

In view of this evidence, we cannot accept as absolutely controlling the legal presumption which, in regard to Allen J. Davie's death, arose at the expiration of seven years from the time when he was last heard from. We cannot determine the rights of the parties upon the hypothesis that his death occurred in the year 1858, when the appellants themselves and their chief witnesses not only unite in declaring their belief that he died in 1851, but state facts which fully justify that belief. Concluding then, as we must, that he died in the year 1851, it seems clear that the claim set up in the bill to an interest in the proceeds of the sale of June, 1853, is barred by the limitation of three years prescribed by the North Carolina statute; and it does not appear that any of the complainants are protected by the savings made in the statute for the benefit of infants and femes covert.

But it is contended that, in view of the absence of the appellants from North Carolina for many years prior to the sale of 1853, and their continuous absence since that date, *637 their rights are protected by the saving in the North Carolina statute in favor of persons who, having causes of action, were "beyond the seas" when they accrued.

We are not unaware of the construction which this court has in several decisions placed upon the phrase "beyond the seas," as used in statutes of limitation. In Faw v. Roberdeau (3 Cranch, 173), this court, in considering the meaning of the words "out of this Commonwealth," as employed in a Virginia statute of limitations, said: "Beyond sea and out of the State are analogous expressions, and are to have the same construction." In Murray's Lessee v. Baker et al. (3 Wheat. 541), involving the construction of a Georgia statute of limitation, this court held that the words "beyond the seas" must be held to be equivalent to "without the limits of the State." In Bank of Alexandria v. Dyer (14 Pet. 141), the same views were expressed as to a Maryland statute of limitations. While the court in that case approved the interpretation of the words "beyond the seas" as given in previous decisions, it said that its construction was in harmony with the uniform decisions of the courts of Maryland. In Shelby v. Guy (11 Pet. 366), the court was required to interpret the same words in a statute of limitation which was in force in Tennessee before its separation from North Carolina. Mr. Justice Johnson, in his opinion, remarked that it was neither sensible nor reasonable to construe these words according to their literal signification. Upon the suggestion, however, that a contrary decision had then recently been made in Tennessee, the court withheld any positive declaration upon the point, in the hope that the courts of the State would, in due time, furnish such lights upon its settled law as would enable this court to come to a satisfactory conclusion upon the question. The court at the same time decided, as they had previously done in Green v. Lessee of Neal (6 Pet. 291), and as they subsequently did in Harpending v. The Dutch Church (16 Pet. 455), and Leffingwell v. Warren (2 Black, 599), that the fixed and received construction by the State courts of local statutes of limitation furnishes rules of decision for this court, so far as such construction and statutes do not conflict with the Constitution of the United States.

Guided by the doctrines of these cases, let us inquire *638 whether the phrase "beyond the seas," used in the statutes of North Carolina, has received a fixed construction in the courts of that State. As early as 1811, in the case of Whitlock v. Walton (2 Mur. 23, 24), the Supreme Court of North Carolina construed the words "beyond the seas," which were used in the Statute of Limitations of 1715. It was there claimed that a citizen of Virginia, who had a cause of action against a citizen of North Carolina, but who failed to sue within the period fixed by the statutes, was within the saving made for the benefit of those "beyond the seas." But the Supreme Court of that State said: "The plaintiff is certainly not within the words of the proviso, and it does not appear to the court that he falls within the true meaning and spirit of it. Great is the intercourse between the citizens of this State and the citizens of other States, particularly adjoining States; and if suits were permitted to be brought on that account against our own citizens, at any distance of time, by citizens of other States, the mischief would be great." That case was approved in Earle v. Dickson (1 Dev. 16), decided in 1826. We have been referred to no later case in that court which, in any respect, modifies these decisions. Consequently, our duty is, without reference to our former decisions, to adopt, in this case, the construction which the Supreme Court of North Carolina has given to the limitation statute of that State. In so doing, we pursue the precise course marked out in the case of Green v. Lessee of Neal (supra), where this court said: "In the case of Murray's Lessee v. Baker, &c. (3 Wheat. 541), this court decided that the expressions `beyond seas' and `out of the State' are analogous, and are to have the same construction. But suppose the same question should be brought before this court from a State where the construction of the same words had been long settled to mean literally `beyond seas,' would not this court conform to it?" The question was answered by saying that "an adherence by the Federal courts to the exposition of the local law, as given by the courts of the State, will greatly tend to preserve harmony in the exercise of the judicial power in the State and Federal tribunals." Supervisors v. United States, 18 Wall. 82; Suydam v. Williamson, 24 How. 427.

*639 It results that the absence of the complainants from the State of North Carolina, but within the United States, does not bring them within the saving made for persons "beyond the seas."

But upon this branch of the case we are met with the additional argument against the application of the Statute of Limitations, that this is a case of an express trust, and therefore it is not embraced by the statute. This trust is alleged to have been created by the writing which Beckham executed on the 23d of July, 1854. But we do not assent to any such construction of that writing, nor do we perceive any thing in the conduct of the parties which raises a trust even by implication. As was well said by the district judge, "No trust can arise by implication from the circumstances of the transaction, as the defendants assumed no new obligation, or in any way recognized the rights of the plaintiffs to the fund derived from the sale of the land. The defendants held these funds adversely, as they formerly held the lands. They only agreed that if the plaintiffs could show, in a court of equity, that they were entitled to any relief against the defendants as the former holders of the land, the same relief should be had against them as the holders of the proceeds of the land." It is clear, from all the evidence, that no such relations were created between the parties, by the transactions of 1853 and 1854, as suspended or stopped the running of the Statute of Limitations, and the suit seems to be barred.

But independently of the conclusion reached upon the question of limitation, there is another view which, in our opinion, equally precludes all relief to the complainants. It is not at all satisfactorily shown that F.W. Davie ever delivered as his act and deed the conveyance of Jan. 15, 1833. The presumption is very strong that he did not. It may be inferred that the original purchase from Teague was made in deference to the wishes, or upon the suggestion, of Allen Jones Davie, whose estimate of the value of the gold under Teague's land was so extravagant that he expressed his belief of its sufficiency to pay the debt of England. The intention of F.W. Davie, perhaps, was at some future time, and when his judgment approved that course, to give his brother, who was of a restless, *640 speculative disposition, an interest in the land. It was, doubtless, in preparation for the execution of that purpose that an original deed was prepared and signed by him, containing the terms, conditions, and trusts described in the bill, and of which the paper produced is satisfactorily shown to be a correct copy. But no witness proves that he ever delivered the original to Allen Jones Davie, or to any member of his immediate family, or to Colonel Jones, the designated trustee. If the deed which C. Jones, Jr., refers to is the same original, certainly his testimony falls far short of proving that it was ever in the possession of Allen Jones Davie. That witness states nothing more than his "impression" that he saw the deed in the possession of Allen Jones Davie while the latter lived in Hillsboro', N.C. But he cannot remember its contents. Nor does he state in what year he saw it, or that he recognized the genuine signature of F.W. Davie to the deed. The original, of which the one filed is a copy, was certainly in the possession of William R. Davie, a son of Allen Jones Davie, some time after the death of F.W. Davie. But where, from whom, or when he obtained it does not appear. It is not proven that he obtained it in the lifetime of F.W. Davie. It is consistent with the proof, and is not a violent presumption, that it was found among the papers of F.W. Davie after his death. There is no competent evidence that any one ever saw it in the hands of Allen Jones Davie, or that F.W. Davie, in his lifetime, in any form, recognized the right of his brother, or of the trustee, Jones, to its possession. Nor is it shown that the alleged trustee was aware, until after the death of F.W. Davie, of the trust intended to be conferred upon him, when the deed should be delivered.

The loose minutes on the trial docket of the case of Allen J. Davie and others against McCulloch furnish no evidence that Allen Jones Davie, during that litigation, had any such deed, or claimed any right under it. The reasonable construction of the order made, in that case, in the year 1840, is that the suit was dismissed because he could not produce any such deed; and if he could not produce it, it must have been because F.W. Davie still had it in his possession, and had not delivered it to his brother. From 1840, down to his leaving for California, *641 Allen Jones Davie did not seem to have any connection with the mines, and no one proves any act or assumption of owner ship, upon his part, during that period. In view of the great value which, at one time, he placed upon this property, we cannot suppose, had the deed been in his custody or under his control at any time before starting on a perilous overland journey to California, that he would have left without either putting it upon record, or asserting his claim to the land in some distinct form, or protesting against the absolute sale to Beckham by F.W. Davie. More than a year before he departed for California, his brother had sold and conveyed to Beckham, by deed, promptly placed upon record, the identical interest in the land which the appellants claim had been, in 1833, effectively conveyed to their ancestor. If, when the conveyance to Beckham was made, F.W. Davie had not delivered the signed deed of 1833, his determination in 1850 not to make such delivery, but to sell the land to Beckham, cannot be questioned by plaintiffs in error. Allen Jones Davie had not, so far as the record shows, paid any thing for an interest in the land, either in money or services. The copy of the original deed which is produced recites no consideration except one dollar in hand paid; and while the record does not furnish an explanation of his change of purpose, it is clear that F.W. Davie was under no legal obligation which prevented him, in 1850, from selling the land, and withholding from his brother the delivery of the deed of 1833. So far as the record speaks, it appears to be a case of an unexpected gift by F.W. Davie to his brother. His whole conduct for many years prior to his death is altogether inconsistent with the hypothesis that he had at any time, prior to his sale to Beckham, consummated the gift by delivering the deed to his brother. The conclusions we have expressed are much strengthened by what occurred after the sale to the Belmont Mining Company in June, 1853. In the fall of that year, C. Jones, Sen., in conjunction with William R. Davie, a son of Allen Jones Davie, employed C. Jones, Jr., an attorney and a kinsman of the latter, to establish the claim of the trustee and the children of Allen Jones Davie to the land, or to an interest in the proceeds of its sale. C. Jones, Jr., admits that he entered diligently upon the discharge of this duty. He was cognizant, because *642 he was present at the execution, of Beckham's agreement of April 28, 1854, whereby it was stipulated that the trustee and cestui que trust might assert, through legal proceedings, any claim they had in the proceeds of the sale of the land, and wherein Beckham agreed to appear to any suit in equity instituted for such purpose, waiving all question of jurisdiction. Although Cadwalader Jones, Sen., lived within about sixty miles of the land for many years after the sale of June, 1853, no such proceedings were instituted until this suit was commenced in 1874, twenty-four years after the death of F.W. Davie, and twenty-one years after the sale to the Belmont Mining Company by his grantees, whose deeds were duly recorded. This great lapse of time since the sale of 1853, without an assertion, in some form of legal procedure, of the rights now claimed, is persuasive evidence that the persons who examined into the facts, when they were fresh in the minds of living witnesses, reached the conclusion that the deed of January, 1833, had never been delivered by F.W. Davie, and that therefore neither the trustee nor the children and heirs of Allen Jones Davie acquired any rights thereunder.

Upon the whole case we are satisfied that the decree dismissing the bill was right, and should be affirmed. It is

So ordered.