BOYD, District Judge
(after stating the facts as above). There are several questions presented to the court upon this appeal, and which were argued orally by counsel, and are also discussed in the briefs which have been filed. The question of jurisdiction of a court of chancery to entertain the case at all is raised. The view is advanced that the instrument left-by Kuhn with Abraham Midkiff had never been lost, but was in existence and was produced in court when it was called for, and therefore a bill to establish a lost paper could not be maintained. It is further argued that the question as to whether there was an actual delivery of the Kuhn paper as a deed is an issue of fact to be tried by a jury, and is not a matter cognizable in a court of equity. It is also insisted that the appellant was in adverse possession of the land involved in this controversy, claiming it as his own in fee simple, to well-defined metes and bounds, for a sufficient length of time to ripen a title, and that this is also an issue of fact to be tried by a jury. _
_ The further question, as to whether the appellant took the deed from his father for the land in controversy, with notice of the existence of the Kuhn paper, is also presented. There is still another proposition which is called to our attention by appellant’s counsel, and that is that the Kuhn paper contemplated that there was to be an acceptance of it by the two Midkiffs and Harriett Adkins; not only that they were to accept the custody or the possession of it, but to testify their acceptance by signing the instrument itself, under the provisions of the last paragraph.
[1] We do not deem it necessary, in order to dispose of this case, to consider all of these several questions, but to advert only to the instrument itself (which we shall refer to as the Kuhn paper), and which the complainants rely upon as their muniment of title authorizing a recovery. The first proposition is whether this paper was delivered by Kuhn and accepted by the Midkiffs as a deed. The last paragraph undoubtedly contemplated that the acceptance by the grantees should be evidenced by their signatures to the paper itself; but it was never signed by them or any of them, its delivery to them was never acknowledged, nor was it admitted to probate or recorded; indeed, there was-no evidence that Harriett Adkins, one of the Mid-kiff heirs and one of the grantees, ever saw it.
[2] The testimony relative to what occ.urred between Abraham Midkiff and Kuhn at the time the paper was handed to the former is exceedingly meager. Kuhn died before the trial of the case, and there was no witness, save Abraham Midkiff, who testified as to that transaction. On the stand he stated in substance: That Kuhn came to [379]*379his house with this instrument, which witness describes as some kind of a deed for everybody that would compromise with him (Kuhn). Kuhn said to witness: “ ‘We claim a big judgment against your father and your uncle, and if you will deed us the mineral, we will deed you the land,’ and I told him I would see about it, and ‘if you have got a judgment, why, of course, I will give you the mineral rather than for you to take the land.’ He says then, ‘You see, and if you find out I am telling the truth, we will compromise.’ But I did not compromise, but after investigating what 1 had heard I did not make any deed of compromise with Kuhn. He left the deed with me and said, ‘if I wanted to compromise to send it to him.’ I never bothered about it, and never did write to him. I never accepted the deed in any wray.” After the present suit was brought, this paper was found in the possession of Solomon Midkiff, still unsigned by any of the grantees.
[3] The principle is well settled that the delivery and acceptance of a deed is a mixed question of law and fact. It is the province of a jury to find the facts; thereupon the court applies the law. Johnston v. Kramer Brothers & Co. (D. C.) 203 Fed. 733; Henry v. Heggie, 163 N. C. 523, see page 527, 79 S. E. 982. In the present case, the trial court in chancery, we must assume, in view of the decree entered, found as a fact that the Kuhn paper was delivered by Kuhn and accepted by Abraham Midkiff, Solomon Midkiff, and Harriett Adkins. We are unable to find in the record any evidence sufficient to warrant such finding; on the other hand, as we have stated, the only testimony upon this question was a denial of acceptance. As bearing upon the question as to whether the Midkiffs accepted this paper as a deed, it is an undisputed fact that they remained in possession of the entire premises, beginning long before the institution of the original action of ejectment, and continuing uninterruptedly until the bringing of the present suit, which was in 1911, save in so far as their possession was affected by the entry of the judgment. No writ of possession was ever executed, and the parties who recovered the judgment in the ejectment action never, so far as the record shows, exercised any dominion over any part of the Midkiff land, or undertook to assert ownership of either the surface or the minerals, hut permitted more than 30 years from the rendition of the ejectment judgment to elapse before the present suit was brought.
It seems to us that a court of equity should not incline to favor parties guilty of such laches. During the intervening years between the ejectment judgment and the commencement of this suit, those claiming under that judgment, or their successors, who are now undertaking to recover possession of the minerals, etc., under the Kuhn paper, could have investigated and ascertained, if it had been accepted by the Midkiffs in the form contemplated, or if it had been acknowledged by them, or if it had been put to record. None of these things were done, nor were any steps taken to assert or protect the claim of ownership under the said judgment or under the paper now in controversy.
[4, 5] The mere fact that this paper was found in possession of one of the persons named therein as grantee does not, we think, under [380]*380all the circumstances connected with the transaction, raise a presumption of a delivery and acceptance which would shift the burden from complainants of proving delivery and acceptance. If, however, the presumption did exist, it was overthrown by the positive, direct, and uncontradicted testimony of the only witness examined in regard to it, to the effect that it was never accepted. We cite Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. 874, as bearing upon this point. The court in that case says:
“A deed must not only be delivered by tbe grantor, but must also be accepted by tbe grantee. Acceptance may be expressed by signing tbe deed or otherwise, or may be.implied from, circumstances. Tbe assent of tbe grantee will be presumed, where tbe deed is beneficial to him, until dissent appear. Where dissent or disclaimer appears, tbe deed is inoperative, and tbe title! to tbe thing granted reverts to the grantor by remitter from such disclaimer. ”
[6] We go further, and assuming, for the sake of the argument, that under all the circumstances the Kuhn paper estopped Abraham Midkiff, Solomon Midkiff, and Harriett Adkins from controverting the claim of complainants, it would not affect the rights of appellant, Newton Midkiff, in the absence of notice of its existence. The trial court must have been of the opinion that he had notice.
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BOYD, District Judge
(after stating the facts as above). There are several questions presented to the court upon this appeal, and which were argued orally by counsel, and are also discussed in the briefs which have been filed. The question of jurisdiction of a court of chancery to entertain the case at all is raised. The view is advanced that the instrument left-by Kuhn with Abraham Midkiff had never been lost, but was in existence and was produced in court when it was called for, and therefore a bill to establish a lost paper could not be maintained. It is further argued that the question as to whether there was an actual delivery of the Kuhn paper as a deed is an issue of fact to be tried by a jury, and is not a matter cognizable in a court of equity. It is also insisted that the appellant was in adverse possession of the land involved in this controversy, claiming it as his own in fee simple, to well-defined metes and bounds, for a sufficient length of time to ripen a title, and that this is also an issue of fact to be tried by a jury. _
_ The further question, as to whether the appellant took the deed from his father for the land in controversy, with notice of the existence of the Kuhn paper, is also presented. There is still another proposition which is called to our attention by appellant’s counsel, and that is that the Kuhn paper contemplated that there was to be an acceptance of it by the two Midkiffs and Harriett Adkins; not only that they were to accept the custody or the possession of it, but to testify their acceptance by signing the instrument itself, under the provisions of the last paragraph.
[1] We do not deem it necessary, in order to dispose of this case, to consider all of these several questions, but to advert only to the instrument itself (which we shall refer to as the Kuhn paper), and which the complainants rely upon as their muniment of title authorizing a recovery. The first proposition is whether this paper was delivered by Kuhn and accepted by the Midkiffs as a deed. The last paragraph undoubtedly contemplated that the acceptance by the grantees should be evidenced by their signatures to the paper itself; but it was never signed by them or any of them, its delivery to them was never acknowledged, nor was it admitted to probate or recorded; indeed, there was-no evidence that Harriett Adkins, one of the Mid-kiff heirs and one of the grantees, ever saw it.
[2] The testimony relative to what occ.urred between Abraham Midkiff and Kuhn at the time the paper was handed to the former is exceedingly meager. Kuhn died before the trial of the case, and there was no witness, save Abraham Midkiff, who testified as to that transaction. On the stand he stated in substance: That Kuhn came to [379]*379his house with this instrument, which witness describes as some kind of a deed for everybody that would compromise with him (Kuhn). Kuhn said to witness: “ ‘We claim a big judgment against your father and your uncle, and if you will deed us the mineral, we will deed you the land,’ and I told him I would see about it, and ‘if you have got a judgment, why, of course, I will give you the mineral rather than for you to take the land.’ He says then, ‘You see, and if you find out I am telling the truth, we will compromise.’ But I did not compromise, but after investigating what 1 had heard I did not make any deed of compromise with Kuhn. He left the deed with me and said, ‘if I wanted to compromise to send it to him.’ I never bothered about it, and never did write to him. I never accepted the deed in any wray.” After the present suit was brought, this paper was found in the possession of Solomon Midkiff, still unsigned by any of the grantees.
[3] The principle is well settled that the delivery and acceptance of a deed is a mixed question of law and fact. It is the province of a jury to find the facts; thereupon the court applies the law. Johnston v. Kramer Brothers & Co. (D. C.) 203 Fed. 733; Henry v. Heggie, 163 N. C. 523, see page 527, 79 S. E. 982. In the present case, the trial court in chancery, we must assume, in view of the decree entered, found as a fact that the Kuhn paper was delivered by Kuhn and accepted by Abraham Midkiff, Solomon Midkiff, and Harriett Adkins. We are unable to find in the record any evidence sufficient to warrant such finding; on the other hand, as we have stated, the only testimony upon this question was a denial of acceptance. As bearing upon the question as to whether the Midkiffs accepted this paper as a deed, it is an undisputed fact that they remained in possession of the entire premises, beginning long before the institution of the original action of ejectment, and continuing uninterruptedly until the bringing of the present suit, which was in 1911, save in so far as their possession was affected by the entry of the judgment. No writ of possession was ever executed, and the parties who recovered the judgment in the ejectment action never, so far as the record shows, exercised any dominion over any part of the Midkiff land, or undertook to assert ownership of either the surface or the minerals, hut permitted more than 30 years from the rendition of the ejectment judgment to elapse before the present suit was brought.
It seems to us that a court of equity should not incline to favor parties guilty of such laches. During the intervening years between the ejectment judgment and the commencement of this suit, those claiming under that judgment, or their successors, who are now undertaking to recover possession of the minerals, etc., under the Kuhn paper, could have investigated and ascertained, if it had been accepted by the Midkiffs in the form contemplated, or if it had been acknowledged by them, or if it had been put to record. None of these things were done, nor were any steps taken to assert or protect the claim of ownership under the said judgment or under the paper now in controversy.
[4, 5] The mere fact that this paper was found in possession of one of the persons named therein as grantee does not, we think, under [380]*380all the circumstances connected with the transaction, raise a presumption of a delivery and acceptance which would shift the burden from complainants of proving delivery and acceptance. If, however, the presumption did exist, it was overthrown by the positive, direct, and uncontradicted testimony of the only witness examined in regard to it, to the effect that it was never accepted. We cite Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. 874, as bearing upon this point. The court in that case says:
“A deed must not only be delivered by tbe grantor, but must also be accepted by tbe grantee. Acceptance may be expressed by signing tbe deed or otherwise, or may be.implied from, circumstances. Tbe assent of tbe grantee will be presumed, where tbe deed is beneficial to him, until dissent appear. Where dissent or disclaimer appears, tbe deed is inoperative, and tbe title! to tbe thing granted reverts to the grantor by remitter from such disclaimer. ”
[6] We go further, and assuming, for the sake of the argument, that under all the circumstances the Kuhn paper estopped Abraham Midkiff, Solomon Midkiff, and Harriett Adkins from controverting the claim of complainants, it would not affect the rights of appellant, Newton Midkiff, in the absence of notice of its existence. The trial court must have been of the opinion that he had notice. The record does not disclose any direct testimony or forceful circumstances to lead to the conclusion that appellant had ever seen or heard of the Kuhn paper anterior to the time it was found in the possession of Solomon Midkiff after the present suit was brought.
[7]' Appellant, when examined with reference to the paper, testified as follows:
“Q. Mr. Midkiff; wben was tbe first time you ever saw this deed, or knew anything about its existence? A. Some time' after this suit was brought. Q. Was the time you spoke of having gotten it from Solomon. Midkiff tbe first you knew anything about it? A. Tbe first time I ever remember of that deed. Q. Did you have any knowledge or information of that deed, its whereabouts or existence, from Kuhn to Abraham H. Midkiff and others for this land? A. No, sir. Q. Did you ever have any knowledge of this deed or its existence before tbe time you obtained it from Solomon R. Midkiff? a. X never beard of it that I remember of. Q. Are you positive that tbe Sunday morning you went down and got this deed from Solomon R. Midkiff was after you had been notified in this suit? A. Yes, sir; I went down there to make same arrangements about getting a¡ lawyer to attend to the suit, and we got to talking about the deed, and he asked me if I knew where it was, and I told him, ‘No, I didn’t know anything about it.’ ”
Abraham Midkiff, when he was interrogated about it on the stand, said this:
“Q. Did you talk to the boys about this Kuhn deed — about what to do with it? A. Everybody was talking about ’em then. Q. Did you talk to your wife about it? A. She said to. sign no deed until we found out about it. Q. And you talked to the boys about it? A. I don’t remember. Q. When did you and Newt first talk about it? A. I reckon it was when I first sold him the land. I told him Kuhn wanted me to compromise, and I never had, and never expected to. I told him Kuhn wanted me to acknowledge it, and I never would do it.”
The appellant’s testimony is positive and direct in its character and to the effect that he never saw, knew of, or heard about the Kuhn paper until after the bringing of the present suit, when he found it in the [381]*381possession of his Uncle Solomon. Abraham Midkiff’s testimony in respect to the Kuhn paper in connection with the appellant is not of a positive nature or direct character. He reckons (to use his own expression) that he first talked to appellant about it when he sold him the land, and told him that Kuhn wanted him to compromise, but he never did, and never expected to, and told him further that Kuhn v/anted hem to acknowledge the paper, and that he would never do it. It will fie observed that Abraham nowhere says that he ever exhibited any paper purporting to be a deed of conveyance to appellant, or informed him of the existence of such paper, and there is no evidence worthy of consideration that the appellant ever saw the Kuhn paper until the time he states.
A forceful fact in this case is that the Midkiffs had been at all times in possession, beginning with the possession of Lewis Midkiff, the ap pellant’s grandfather, anterior to the bringing of the ejectment suit; following after the death of Lewis Midkiff was the joint possession of his heirs at law, Abraham Midkiff, Solomon Midkiff, and Harriett Adkins. They exercised undisputed dominion and control over the entire lands, the boundaries of which were certainly defined and well known, and during all this time no one appeared to assert any right, title, or claim to the land or any interest whatever therein. The appellant was cognizant of this situation; saw the character of ownership which, his grandfather and his father and his uncle and his aunt, asserted. Under these circumstances he bought the parcel of land now in controversy, paid for it, not only a valuable consideration, but a fair price, took a deed from his father, which the evidence shows he caused to be registered, and thereby gave notice to the world of his title. He set about and erected a valuable dwelling and made other substantial improvements upon the premises. It is not, in our opinion, a reasonable conclusion that the appellant would have done all these things if there was any suggestion to him that there was a defect in the title to the lands. We say further that the weight of the evidence sustains the view that appellant had no notice of the Kuhn paper, and we think that it should have been so held by the trial court. We cite as in unison with the views we have been expressing the case of Hodges v. Eddy, 41 Vt. 485, 98 Am. Dec. 612, and also 10 R. C. L. 845, under the head of “Burden and Quantum of Proof.”
[8] Aside from what we have said, there is another view of the Kuhn paper which we entertain, and which we regard as decisive of the case, and that is, at the time Kuhn delivered this paper to Abraham Midkiff and sought his acceptance of its provisions, together with the acceptance of his brother Solomon and sister Harriett Adkins, he was not authorized as the attorney in fact of the plaintiffs in the ejectment suit to execute and deliver a deed in this particular instance. There is no ambiguity in the power of attorney, for it plainly sets forth what was intended, viz. that Kuhn was empowered to execute deeds to carry out settlements and compromises in pending suits, not yet determined, and to make deeds to carry out compromises already agreed upon with defendants against whom judgments by default had been, or might thereafter, be obtained. It will be seen from this that Kuhn’s [382]*382authority to execute deeds was limited to two contingencies; the one, when compromises were effected pending the action, and the other, in cases where judgments by default were obtained, terms of compromise having been already agreed on. It is a reasonable conclusion that the plaintiffs in the action of ejectment, after they had obtained a judgment for the recovery of the entire lands of a defendant, would not concede to such defendant an interest in the land as a gratuity, and therefore the power to Kuhn to execute a deed after a suit was ended was limited to instances in which there were judgments byr default obtained after terms of settlement, or terms of compromise, were agreed on, but not completed.
There was nothing to induce a compromise by the plaintiffs in the ■ejectment suit with the two Midkiffs and their sister, Harriett Adkins, at the time of the execution of the Kuhn paper sought to be set up as ■a deed. The action so far as they were concerned was ended by a final judgment, by virtue of which the whole interest in the land was awarded to the plaintiffs, and there is no suggestion that there had been any •compromise agreed on with them before the judgment against them was obtained. Further than this, the judgment against the two Mid-kiffs and their sister was not by default; but, as appears from the record, they had entered their plea, denying the right of plaintiffs to recover, and the issue thus raised was decided against them, so they had no interest left in the subject-matter of the action to constitute a basis of compromise. Further, at the time Kuhn visited Abraham Midkiff and left the paper, the action against the two Midkiffs and Harriett Adkins, as heirs at law of Lewis Midkiff, had been ended by a final judgment, and the issuance of the writ of possession. Mr. Black, in his Law Dictionary (second edition, page 887), under the head of “Pending” uses this language:
“Begun, but not yet completed; unsettled; undetermined; in process of ■settlement or adjustment. Thus, an action or suit is said to be pending from its inception until tbe rendition of final judgment.”
And he cites in support these cases: Wentworth v. Farmington, 48 N. H. 210; Mauney v. Pemberton, 75 N. C. 221; Ex parte Munford, 57 Mo. 603.
To restate our views, we are of the opinion that the Kuhn paper was not executed during the pendency of the suit against the persons named therein as grantees; that the judgment against the two Midkiffs and Harriett Adkins was not by default, but was taken after they had •appeared and entered their formal plea, denying plaintiffs’ right to recover; that there were no terms of compromise or settlement entered into with the parties named, during the pendency of the action against them; that under the circumstances Kuhn was not authorized to execute a deed, in the name of his principals, to the two Midkiffs and their sister Harriett Adkins. The purpose of the principals in constituting Kuhn their attorney and empowering him "to make deeds was undoubtedly to secure compromises of controversies or to settle adverse claims affecting the lands involved in the suit. It was not to ■empower him to give away lands, or interests in lands, to which their title in fee simple had been finally confirmed by a judgment of court [383]*383in a trial of an action of ejectment, upon the issue raised by defendant’s plea of “not guilty.”
[9] It is well settled that an attorney under special power cannot bind his principal by an act ultra vires; in other words, the authority of an attorney in fact is limited by the terms of the instrument which confers the power. Holladay v. Daily, 19 Wall. 606, see page 610, 22 L. Ed. 187.
[10] The authority of an agent acting under special power must be ascertained from me terms of the instrument itself. Henry v. Lane, 128 Fed. 243, see page 250, and cases cited in the opinion (62 C. C. A. 625).
It necessarily follows, from the views that we have expressed, that our opinion is that the Kuhn paper could not be established as a deed, and that the decree of the District Court to that effect was erroneous. The said decree is therefore reversed, and the case remanded, to the end that complainants’ bill may be dismissed. •
Reversed.