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APPEAL from the circuit court of the United States for the district of Kentucky.
The principal facts of this case were the following: Reuben Searcy being entitled to a settlement of four hundred acres of land, and a pre-emption of one thousand acres, in Bourbon county, Kentucky, under the laws of Virginia; obtained a certificate thereof from the commissioners, and he employed one John Martin to perfect the title to the lands, and gave him one-half of the same for so doing. On the 24th September 1781, Searcy sold seven hundred acres, supposed to be one-half of the land, to William Hoy, and executed a bond to Hoy. The bond was in the following words:
'Know all men by these presents, that I, Reuben Searcy, of the county of Fayette, am held and firmly bound unto William Hoy, of the county of Lincoln, and state of Virginia, in the penal sum of fifty thousand pounds, current money of Virginia, to which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, unto the said William Hoy, he, his heirs, or assigns, this 24th day of September 1781. The condition of the above is such, that if the above-bound Reuben Searcy shall well and truly make, or cause to be made, as soon as deeds are made to lands in this county in general, a good and sufficient deed for seven hundred acres of first-rate land, lying in Fayette county, on Licking creek, between John Martin's station and Ruddle's station; it being part of a settlement and pre-emption, that John Martin cleared out on the halves for said Reuben Searcy; and the said Hoy takes his first choice of the land; then the above obligation to be void; otherwise to remain and be in full force and virtue.'
On the 15th of December 1781 William Hoy made the following assignment to George Boone of this bond, by an endorsement thereon:
'I, William Hoy, assign over the within bond unto George Boone, his heirs, or assigns; and said Hoy obliges himself, his heirs, executors, and administrators, as shourety to within bond; and if the within lands cannot be obtained by reason of a prior claim, then, and in that case, seven hundred acres, equal in quality and convenience, shall discharge the within bond.'
Searcy also assigned the plats and certificates of survey to Hoy, who was thus enabled, in July 1785, to complete the title, by obtaining patents for the land in his own name. On the 30th of April 1785, George Boone made the following assignment of the bond to Thomas Boone, the ancestor of the appellants, who are his heirs:'I do hereby assign over all my right, title, and claim of the within bond unto Thomas Boone, heirs, or assigns, without recourse to the same; that is to say, that I, the said George Boone, am no ways obligated, if the said William Hoy, or his heirs, sufficient to make good the within bond; but if the said William Hoy, or his heirs, should not be good, then I, George Boone, do bind myself, my heirs, to make good the same unto the said Thomas Boone, or his heirs or assigns.'
On the 25th day of January 1823, Thomas Boone filed a bill in the circuit court of the United States for the district of Kentucky, stating his equitable right, thus derived, to seven hundred acres of land, part of the settlement and pre-emption of Searcy, alleging that he had never parted with the same; but admitting that he made a conditional contract with Hezekiah Boone for it, which was never complied with by said Hezekiah, and was afterwards expressly abandoned by him.
On the 1st of October 1787, Thomas Boone, who resided in the state of Pennsylvania, gave to George Boone a power of attorney, in the following terms: