LINCOLN

v.

FRENCH

Mr. Justice Field,

after stating /the case, delivered the opinion of the court.

In giving its decision when the case was last here/ this courf was led. into an error in the statement of a fact. It says in its, opinion that the action Was begun in November, 1872, more than eight years after the time' limited-when the trust deed to -Martin & Lynch was tó lose its efficacy,’when, in reality,, it was commenced in November, 1866, less than three years after the,, time mentioned - within which the road was to be completed. .Although the duty to reconvey arose when by the terms.of the trust deed the time had passed within which the-work "was to be done, and the conditions upon-which the trust was to be executed had become impossible, á reconveyance was. to be presumed only in the absence of proof to -the contrary. Like other presumptions, it was sufficient to control the decision of the court if no rebutting testimony was produced. But all presumptions as to matters of fact, • capable of ocular or tangible proof, such as the execution of a deed, are in their nature disputable. No conclusive character attaches to them. They may always be rebutted and overthrown.

. While in its opinion the court, speaking through Mr. Justice Swayne, expressed itself as being clear that the case, as then presented, was one in which a presumption of reconveyance was to be indulged, and quoted,- with approbation, the language of Sir William Grant in such cases, that “ what ought to have been done should be presumed to have beén done,” and that “ when the purpose is answered for which the legal estate is conveyed it ought to be reconveyed,” it added: “ If it had been one of the facts found by the court below that the title was still in the trustees, the case would have presented a different aspect. It is stated only as a conclusion of law arising upon the facts found.” It is plain, therefore, that this court only considered that the conclusion of law of the lower court, that the title was still in the trustees, was not warranted by the facts found, and that the case would have been differently decided had what was thus stated as a conclusion of law been one of those facts. It was not the intention of this court to hold that the presumption was a'conclusive one, not open upon a retrial to rebuttal, because it was considered to properly arise upon the facts then presented by the record. When the case went back upon our decision for further proceedings, — which, this being an action at law, were necessarily those of a new trial, — the fact as to a reconveyance was open to proof, and was not to be taken as conclusively established from the force of the presumption that it had been made. Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear. The fact having been established, against the presumption mentioned, that the trustees never reconveyed the premises or any part thereof to the plaintiff, the title remains in them, and with it the right of possession. Judgment should, there fore,.have been ordered for the defendants. It follows that the judgment of the Circuit Court must be reversed, and the éáuse be remanded with directions to enter judgment in their favor; and it is

^-So ordéred.