This action is doubtless one of equitable cognizance. Its object is to have the court adjudge that the plaintiff took the- title in fee of one-fourth of the forty-acre tract mentioned in the complaint, on the death of her mother, and to *387charge the defendants John W. Seeley and wife, as trustees, with tbe value of that interest as it was when the property was conveyed by them to No/m, and make the amount an equitable lien on the other lands described. The original forty, with other real estate, was conveyed in 1868 to Bohn, who is admitted to be a' bona fide purchaser, and no relief is sought against him.
Some objections were taken to the sufficiency of the complaint, which we shall dismiss with the remark that they are not deemed tenable. On thé argument, the counsel for the defendants labored hard to establish the position that there was no sufficient delivery of the deed executed by John W. Seeley and wife to their infant daughters, Martha and Sarah Ann, in 1848. He stated truly that the doctrine is elementary, that delivery of a deed is essential to give effect to it as a conveyance. We think, however, that the learned counsel might have omitted his effort upon that point, in view of the evidence of John W. Seeley, who expressly testified to the execution and delivery of such a deed. True, he -says the deed was for five acres only ; but that he executed and delivered a deed to Coleman, is as plainly stated as any fact can be. Coleman was the guardian of Martha and Sarah Ann, and of course was fully authorized to accept the delivery on behalf of his wards. The question of delivery, then, of some deed made by John IF. Seeley and wife in 1848 to their daughters, is put at rest by the defendant’s own testimony. And the serious controversy, on the evidence, is as to what tract or how many acres were conveyed by the deed. The deed itself cannot be produced, it having been lost or destroyed by some one, and never placed on record. Who is responsible for the loss or destruction of the instrument, is a question left in some obscurity, on the evidence. Mr. Seeley testifies that Augustus Coleman took the deed away with him in 1848, and that he has not seen it since. Coleman is dead, and the conveyance cannot be found among his papers. There is considerable testimony to the effect that *388after tbe deed was executed and delivered by'the Seeleys to Coleman, and upon Coleman’s paying Seeley the money which he held, belonging to his wards, as the-consideration therefor, Coleman then handed the deed back to Seeley for safe keeping, or to'be placed upon record. The strong probabilities are, that this was the way the business was transacted, and that the deed went into the defendant’s possession. Inferior evidence as to its contents is admissible, and the counsel for the plaintiff insists that the maxim, in odium spolialoris omnia pnesumunf.ur, may be applied. Perhaps this presumption might be made from the fact that the defendants have not produced the deed, nor accounted for its absence ; but without the aid of such a presumption we are inclined to hold upon the evidence that forty acres was the quantity of land conveyed. The land conveyed was unimproved, and was purchased by Seeley, a year or two before, for $2.50 per acre. According to his own statement, he was paid by Coleman, as purchase money, $40, while there is other testimony which tends strongly to show he was paid $60. It is charitable to assume that he did not driye a hard bargain with the guardian of his infant children, but that his paternal feelings led him to act liberally in the matter. Besides, there is corroborating testimony to support the opinion or impression of Mr. Wheeler, who drew the deed, that forty acres was the quantity conveyed. The court below found as a fact, that the southwest quarter of the northeast quarter of section one was conveyed for the consideration of $60; and it seems to us that the weight of testimony.sustains that conclusion. The court likewise found that Coleman left the deed with the defendant Seeley, to be. recorded, and that the latter agreed to place it on record, but has fraudulently destroyed it with intent to defraud Martha and her heirs out of the land. It is a little difficult to reconcile his conduct in this transaction with an innocent and honest purpose. If the deed was left with him to be placed upon record, as we are inclined to think it was, he should have had it recorded. We can only specu*389late as to bis motive for suppressing or destroying the instrument. Perhaps his understanding was, as he states, that if he ■kept the children one or two years, the deed would be null and void. Possibly he has some claim or equity to be paid for supporting his children, not only during their minority, but after they became of age. He has not put in any claim for compensation on that ground, and there is nothing in the case to show that he would be entitled to it if he had. We have only alluded to the point as possibly affording some excuse or explanation of his conduct in respect to the deed, which otherwise seems to be dishonest. But we feel constrained to affirm the finding of the court below in respect to the deed, to this extent at least, that the evidence shows that a deed of that tract was made and delivered, and that it afterwards came into the possession of the defendant John W, Seeley, who has lost or destroyed it. These facts, we think, are established by the proofs in the case.
It appears that in February, 1852, the defendants John W. Seeley and wife conveyed the tract above named, with other lands, to one Wright, who immediately reconveyed them to the defendant Mrs. Seeley. These deeds -were recorded soon after their execution, and seem to have been made for the purpose of vesting the title in Mrs. Seeley. In 1868 the lands were conveyed to the defendant Bohn, who, as before observed, is conceded to be a bona fide purchaser. But the money received by the defendants for the forty-acre tract belongs to Martha and Sarah Ann, or to their hems. A court of equity would impress the fund in the defendants’ hands with the character of a trust, and doubtless might charge it as an equitable lien upon the real estate of the defendants, as demanded in the complaint,. unless the defense of the statute of limitations is a bar to the action. That point remains to be considered.
The defendants set up in their answer the defense of the ten years statute of limitation. And, as we understand the argument on this point, the counsel insists that the defendants have been in the exclusive adverse possession of the premises for *390more than ten years, founding sucb possession on tbe deed made to Mrs. Seeley by Wright in 1852. Therefore, he claims, they are entitled to the protection afforded by sec. 6, cb. 138, R. S. That section enacts, in substance, that when it appears that an occupant, or those under whom he claims, entered into the possession of any premises under claim of title exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises, and.that there has been a continued occupation and possession of the premises included in such instrument, under such claim, for ten years, the premises shall be deemed to have been held adversely. The difficulty with this defense in the ease at bar is, that there is no evidence that the defendants entered into the possession under claim of title exclusive of any other right, founding such claim upon the deed from Wright to Mrs. Seeley. The elements of a case to which this provision applies are wanting. The defendants do not seem to have entered into possession under the Wright conveyance, nor did they claim title exclusive of any other right. They had possession when they executed the conveyance to their daughters in 1848, and, so far as can be determined, continued that possession until they conveyed to Bohn. After 1852, they frequently stated in conversations that the forty-acre tract belonged to Martha and Sarah Ann, and at various times recognized the title of the girls. So that, whatever weight might otherwise be given to the execution and recording of the deeds from Seeley and wife to Wright, and from the latter to Mrs. Seeley, in 1852, as an assertion of adverse title, no importance can be attached to their acts in view of the repeated recognition of the rights of the girls after that time. The presumption is, that they continued to hold after 1852, as before, in subserviency to the trufe title. The correctness of this view, upon the established facts of the case, would seem to be too obvious to require further comment.
By the Court. ■— The judgment of the circuit court is affirmed.
RyáN, C. J., took no part in the decision of this cause.