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of section 5 of the Act of 1875, that if, in any suit | eral States, amongst other things, of all suits of [459] removed from a state court to a Circuit Court a civil nature at common law or in equity, inof the United States, it shall appear to the sat- volving over five hundred dollars, in which isfaction of said circuit court, at any time after there shall be a controversy between citizens such suit has been brought or removed thereto, of different States; and that any such suit that such suit does not really and substan- brought in any state court may be removed by tially involve a dispute or controversy properly either party into the circuit court for the proper "within the jurisdiction" of said circuit court, district. This jurisdiction should be liberally the said circuit court shall proceed no fur- construed so as to give full effect, as far as may ther therein, but shall dismiss the suit or be, to the constitutional right, as presumably remand it to the court from which it was within the intent of Congress. The terms "suits removed, as justice may require. What is at common law and in equity," or "suits at law meant by the expression "within the juris- and in equity," which is the same thing, are diction?" It means within the judicial cogni- in themselves of the most general character and zance within the capacity to determine the of the broadest signification; and this court merits of the dispute or controversy, and to ought not, by its decisions, to restrict their apgrant the relief asked for. The provision does plication. It is not meant by the expression not give countenance to the idea that the suit or "suits at common law" to confine the jurisproceeding is to be retained in the circuit court diction of the circuit courts to the old technical till brought to a formal adjudication on the actions of trespass, trover, trespass on the case, merits, when, at that ultimate stage, the court debt, detinue, assumpsit, etc., but it extends to must say that the case is not within its juris- and includes any form of proceeding of a civil diction, after the party successfully challeng-nature in which a legal right cognizable by ing the jurisdiction has been harassed by ex- the courts of common law is sought to be ju pense and injured by delay. But it means what it says, that the dismissal or remanding "shall" be made whenever, "at any time" after the suit is brought or removed to the circuit court, it shall appear to the satisfaction of that court that there is, really and substantially, no dispute or controversy of which it has jurisdiction, in the sense above pointed out; the right to have a review by this court of the order dismissing or remanding the suit being given to the aggrieved party at once, instead of his being compelled to await the making of such an order at the end of a full and formal bearing or trial, on issues and proofs, on the merits alleged on either side.

Orders affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.
Mr. Justice Bradley, dissenting:
Mr. Justice Harlan and Mr. Justice Mat-
thews agree with me in dissenting from the
judgment of the court in this case.

dicially enforced by whatever name, under the
new-fangled nomenclature adopted by the dif-
ferent States, the proceeding may be called.
Suits at law and equity include every form of
proceeding except those peculiar to admiralty,
ecclesiastical or probate and military jurisdic
tions. And even in matters savoring of eccle-
siastical process, after an issue has been formed
between definite parties, we have held that the
controversy came under the head of a suit at
at law. Gaines v. Fuentes, 92 U. S. 17 [23:527];
Hess v. Reynolds, 113 U. S. 73 [28: 927]. The
broad terms used in the law were purposely
employed, as it seems to us, to make the juris-
diction complete, to the full extent which the
Constitution intended it should have. It is
true that in one or two cases we have intimated
a distinction between the extent of jurisdiction
given in the first and that given in the second
sections of the Act of 1875; but that distinction,
if well founded, does not affect the present
cases, since they arise under the second section,
which has been supposed to be the broader of
the two, and, in any event, the ground of dis-
tinction is not here involved.

It is a constitutional right of the citizens of the several States having controversies with the citizens of other States, to have a national forum in which such controversies may be litigated. Now, a mandamus, which was originally a [460] It was one of the declared purposes of the Con- prerogative writ only, has come to be in many stitution, that the judicial power of the United cases, and in most States, a private suit, brought States should extend to certain cases enumer- for the purpose of enforcing a private right. ated, one of which was, "to controversies be- This is true in the two cases now before us. tween citizens of different States;" and it was The appellant has a money demand against the declared that this power should be vested in City and County of San Francisco, and is seekone supreme court, and in such inferior courts ing to collect it in the usual way in which such as the Congress might from time to time ordain demands are collectible by the law of procedure and establish; thus making it the duty of Con- of California. The mandamus which he seeks gress to establish such tribunals. If Congress is the mere process for commencing his action, fails in this constitutional duty, the citizens and is a proper process suited to his case. The have no redress but the ballot-box. But Con- City and County of San Francisco can set up gress has not failed. It has established the any defenses to the action in this form which requisite tribunals, and has invested them with it could do in the ordinary action of debt or the powers necessary to give the citizens their upon contract. It is essentially a civil suit at constitutional rights. Or, if it has failed in law, no matter by what name it is called,-cerany respect, either with regard to persons or tainly as much so as were the proceedings in causes, we think it has not failed in respect to Gaines v. Fuentes, Hess v. Reynolds, already the class of cases to which the present belong. cited, and in Boom Co. v. Patterson, 98 U. S. Congress, by the Act of March 3, 1875, passed 404 [25: 207], where there was an issue to asto determine the jurisdiction of the circuit courts, certain the value of property taken by virtue has declared that they shall have original cog-of eminent domain. In Davies v. Corbin, 112 nizance, concurrent with the courts of the sev-| U. S. 36 [28: 627], we sustained a writ of error

[461]

court."

from this court to the circuit court on a judg-strued as denying the power to issue that writ ment in a proceeding for mandamus to carry in any other case. This conclusion might be into effect a judgment for a debt. The Chief admissible if it is restrained to the instance of Justice there said: "While the writ of man- the particular writ of mandamus which alone [462] damus, in cases like this, partakes of the nat- was in contemplation; that is, the prerogative ure of an execution to enforce the collection writ of mandamus as known to the practice of of a judgment, it can only be got by insti- the King's Bench in England. The object of tuting an independent suit for that purpose. this section of the statute was to give the courts There must be: first, a showing by the relator of the United States the power to issue such a in support of his right to the writ; and second, writ when necessary in the exercise of a jurisprocess to bring in the adverse party, whose diction in which the use of such a writ was conaction is to be coerced, to show cause, if he formable to law. But the section had no ref. can, against it. If he appears and presents erence to mandamus as a form of civil action, a defense, the showings of the parties make up as it has become in modern times, having a the pleadings in the cause; and any issue of definite purpose and scope, and as distinct in law or fact that may be raised must be judi- its use, for the purpose of enforcing private cially determined by the court before the writ rights of a particular description, as are the can go out. Such a determination is, under forms of actions known to the common law, the circumstances, a judgment in a civil action such as assumpsit, debt or trespass. Viewed as a brought to secure a right, that is to say, process civil action, authorized by the laws of the State to enforce a judgment. Such a judgment is, in which the suit is brought, the jurisdiction of in our opinion, a final judgment in a civil ac- the circuit courts is established by section 1 of the tion, within the meaning of that term as used in Act of 1875, which embraces "all suits of a civil the statutes regulating writs of error to this nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, * * * in which there shall be a controversy between citizens of different States." If there be such a suit, in which, by the law of the State, the form of proceeding is required to be in mandamus, section 914, R. S applies, which requires that "The practice, pleadings and forms and modes of proceeding in civil cases, other than equity and admiralty cases, in the circuit and district courts, shall conform, as near as [464] may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." Effect may be given in the present case to this provision of the statute, without running counter to section 716. The fallacy of the argument against the jurisdiction of the circuit court, in such cases, is in construing section 716 as an exception out of the general grant of jurisdiction to that court over all suits in which the controversy is between citizens of different States; whereas, it is a general grant of power to issue all writs necessary to the exercise of their jurisdiction-a power which would probably have been implied with. out an express grant.

In the jurisprudence of California, it has frequently been held that a mandamus is a civil action. It is only necessary to refer to the cases to show that this is a point beyond all dispute. Perry v. Ames, 26 Ĉal. 372; Cariaga v. Dryden, 30 Cal. 246; Courtwright v. Bear River Mining Co. 30 Cal. 583; Knowles v. Yeates, 31 Cal. 90; People v. Kern County, 45 Cal. 679; People v. Thompson, 66 Cal. 398.

But it is urged that the power given to the Circuit Courts of the United States to issue writs of mandamus is limited by Act of Congress to certain special cases; namely, only where they may be necessary for the exercise of their ordinary jurisdiction (R. S. § 716), and that, according to the decisions of this court, in suits for the collection of money, the writ can only be used as ancillary to an execution after a judgment has been obtained in an ordinary suit. It is sufficient to say that all of these decisions, except two, relate to the law as it was before the passage of the Act of 1875. That Act, as we have seen, is expressed in general terms, without any qualification as to the writs or process which shall be employed, and repeals any restraining effect of section 716 of the Revised Statutes if in conflict with it. The two cases to which we have referred as decided since the Act are County of Green v. Daniel, 102 U. S. 187 [26: 99], and Davenport v. County of Dodge, 105 U. S. 237 [26: 1018]. But the point [463] decided in these cases was that, although the state law gave the remedy of mandamus to compel the levy of taxes for the payment of bonds, an ordinary action might nevertheless be brought on the bonds for the purpose of obtaing a judgment. They do not decide, whatever dicta may appear to have been made, that nandamus might not have been brought origially.

The inference drawn from section 716, R. S., is, that as it grants power to this court and the circuit courts "to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law," (which is rightly supposed to include the writ of mandamus) it must be con

In our judgment, the cases ought not to have
been remanded, and the judgments of the cir-
cuit court remanding the same should be re
versed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

[blocks in formation]

stranger.

affect such title by a subsequent patent to a | Harris, 101; Perry, Trusts, 521; Duer v. Boyd,
2. Ejectment may be maintained upon a warrant 1 Serg. & R. 210; Lauman v Thomas, 4 Binn.
and survey by the owner who paid the purchase 57; Fox v. Lyon, 3 Casey, 9; Bunting v. Young,
money, without any conveyance from the person 5 Watts & S. 188; Chambers v. Mafflin, 1 Pen.
in whose name the application was made and the & W. 74; Urket v. Corycll, 5 Watts & S. 60;
warrant issued.
3. Under a Pennsylvania Statute copies of en- Maclay v. Work, 5 Binn. 158; Gingrich v. Foltz,
ries from the old purchase blotter in the land- 7 Harris, 40; Burkhart v. Bucher, 2 Binn. 455.
office of the State are prima facie evidence of the
The Supreme Court of the United States has
facts therein stated.
held a warrant survey with payment of the
purchase money as vesting the owner with an
estate strictly legal, upon which ejectment will
be supported in the courts of the United States.
Sims v. Irvine, 3 U. S. 3 Dall. 425 (1: 665);
Evans v. Patterson, 71 U. S. 4 Wall. 224 (18:393).
The Circuit Courts of the United States in
Pennsylvania have uniformly held a warrant,
survey and return as a perfect legal title, and
ejectment has always been sustained upon such
titles. A warrant, survey, and payment of the
purchase money are sufficient to give a legal

4. The orders, judgments and decrees of the Orphans' Court of Philadelphia County, in a case where it had jurisdiction of the subject-matter, cannot be impeached collaterally. 5. A recital in a patent of a prior conveyance to the patentee is not evidence against third parties to affect rights previously vested in them.

6. In an action of ejectment evidence tending to show that certain payments of taxes might have been on other tracts is held to have been properly rejected.

[No. 142.]

Argued Jan. 19, 20, 1887. Decided March 7, 1887.
ERROR to the Circuit Court of the United

IN and is a sufficient

vania. Affirmed.

The history and facts of the case appear in the opinion of the court.

Messrs. R. P. Allen, A. H. Dill and John G. Reading, Jr., for plaintiffs in error:

"In actions of ejectment in the United States courts the strict legal title prevails. If there are equities which show the right to be in another, these can only be considered on the equity side of the federal courts."

support ejectment in United States Courts.
Willink v. Miles, Pet. (C. C.) 429.

A warrant and survey returned into the land-
office and accepted vests a legal title of entry,
and is such a legal title as will support eject-
ment in United States courts.

Griffiths v. Tunckhouser, Pet. (C. C.) 418.
A warrant, survey, and payment of the pur-
chase money give a sufficient title in Pennsyl-
vania to enable the plaintiff to maintain an
ejectment in the Circuit Court of the United
States.

Foster v. Mora, 98 U. S. 425 (25: 191). See also Gilmer v. Poindexter, 51 U. S. 10 How. 257 (13: 411); Sheirburn v. Cordova, 65 U. S. 24 How 423 (16: 741); Singleton v. Touchard,. 66 U. S. 1 Black, 342 (17: 50); Hickey (Steel) v. Stewart, 44 U. S. 8 How. 751 (11: 814). A patent is a complete appropriation of the land it describes; and at law no defects in the preliminary steps can be tried.

Boardman v. Lessors of Reed, 31 U. S. 6 Pet.

328 (8. 415).

The orphans' court never confirmed the sale to Brobst. The petition of LeFavre's administrator to the orphans' court, upon which the order to sell was granted, upon its face showing that the debts of the decedent were all barred by the statute, such order was void for want of jurisdiction in the court to grant it, and the sale to Brobst was in like manner void. The validity of such sale may be contested in any case involving title to the land sold.

Stoolfos 7. Jenkins, 8 Serg. & R. 173; Dresher v. Allentown Water Co. 52 Pa. 229; Torrence v.

Torrence, 53 Pa. 510; Thompson v. Stitt, 56 Pa. 160; Yorks' App.* 1 Cent. Rep. 354; Shorman v. Farmers Bank, 5 Watts & S. 373.

Messrs. James Ryon, John W. Ryon

and Samuel Linn, for defendants in error:
The trust was a dry one; there was no control
and no duty to perform by trustee, and under the
Statute of 27 Henry VIII., commonly called the
Statute of Uses, which is in force in Pennsylvania
(see Robert's Digest of British Statutes, 412),
the trust was immediately stricken down and
the use executed, thereby making Dr. Ruston
the complete owner of the lands as well at law
as in equity.

2 Bl. Com. 333; Sprague v. Woods, 4 Watts & S. 192; Kay v. Scates, 1 Wright, 31; Barnett's App. 10 Wright, 393; Moore v. Shultz, 1

*See also note by the Editor.

Copley v. Riddle, 2 Wash. (C. C.) 354; James
Gordon, 1 Wash. (C. C.) 338.

In a controversy respecting the title to lands
in a State this court will administer the law of
the State in all respects as if it were a court
sitting there and reviewing the decree of an in-
ferior court in that locality.

570); Slaughter v. Glenn, 98 U. S. 242 (25: 122).
Olcott v. Bynum, 84 U. S. 17 Wall. 44 (21:
A title to lands can only be acquired and lost
according to the laws of the State in which
they are situated.

Clark v. Graham, 19 U. S. 6 Wheat. 577 (5:
334); Waring v. Jackson, 26 U. S. 1 Pet. 571
(7: 267); Davis v. Mason, 26 U. S. 1 Pet. 503
(7: 239); Gardner v. Collins, 27 U. S. 2 Pet. 85
(7: 356); Jackson v. Chew, 25 U. S. 12 Wheat.
153 (6: 583).

Mr. Justice Matthews delivered the opin- [465] ion of the court:

the defendants in error in the Circuit Court of
This is an action of ejectment brought by
the United States for the Western District of
Pennsylvania, to recover possession of a tract

of land situated in Northumberland and Co-
lumbia Counties, containing about 230 acres.
There was a verdict and judgment in favor of
the plaintiffs below, to reverse which this writ
of error is brought.

Both parties claim title under the Common-
wealth of Pennsylvania. It appears from the
bills of exceptions taken during the progress of
the trial that the plaintiffs put in evidence a
certified copy of a document called an applica-
tion, No. 12969, as follows:

William Elliott applies for four hundred acres of land on a branch of Roaring Creek, adjoining Dr. Thomas Ruston's lands, in Catawissa Township, Northumberland County.

[466]

[467]

"Joseph Tyson applies for four hundred acres of land lying one mile north of a road leading from Reading to Sunbury adjoining Dr Thomas Ruston's other land, in Catawissa Township, in North'd County.

"William Shannon applies for four hundred acres of land lying one mile north of a road leading from Reading to Sunbury, adjoining other lands of Dr. Thomas Ruston in Cata wissa Township, North'd County.

ejectment to recover it within twenty-one years
from the date of the warrant. The objections
were overruled, and an exception taken.

The plaintiffs also put in evidence a copy of the warrant to Lewis Walker, dated the 26th of November, 1793, for 400 acres adjoining Dr. Thomas Ruston's other lands; and a copy of a survey for Lewis Walker, dated the 22d of October, 1794, in pursuance of the warrant, containing 371 acres. The survey was fol lowed by a certified copy of the return made by William Gray, deputy surveyor, into the landoffice, showing that on February 23, 1795, he [468] returned to the land-office the Lewis Walke survey for 371 acres. Warrants and surveys "Nathaniel Brown applies for four hundred of five other tracts were introduced in evidence acres of land on a branch of Roaring Creek, in connection with the warrant and survey of adjoining Dr. Thomas Ruston's lands, in Cata-the Lewis Walker tract, being the same tracts of wissa Township, North'd County.

"Lewis Walker applies for four hundred acres of land lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other lands in Catawissa Township, North'd County.

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land which are mentioned in the application and
purchase voucher. The plaintiffs then traced
title into Nicholas LeFavre by virtue of a judg.
ment against Thomas Ruston in 1796, and levy
on lands of the defendant Ruston, including the

Ebenezer Branham applies for four hun-
dred acres of land on a branch of Roaring
Creek, adjoining Dr. Thomas Ruston's lands,
in Catawissa Township, North'd County."
Also a certified copy of old purchase vouch-Lewis Walker tract, and a sale and conveyance
er No. 12969, as follows:

"26 November, 1793. Certified copy of old purchase voucher No. 12969. Joseph Tyson, 400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other land, in Northumberland County.

"William Elliott-400 a's situate on a branch of Roaring Creek, adjoining Dr. Thomas Ruston's other land, in Catawissa Township-said county.

"Lewis Walker-400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other land, in said county.

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'William Shannon-400 a's lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston's other lands, in said county.

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Ebenezer Branham-400 a's on a branch of Roaring Creek, joining Dr. Thomas Ruston, in said county.

"Nathaniel Brown-400 a's on a branch of Roaring Creek, joining land of Dr. Thomas Ruston, in said county.

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'Amount, £60-interest from date thereof.
"[On the side]: A gen'l rec't wrote.'
The plaintiffs also offered in evidence a copy
of old purchase blotter No. 12969, as follows:
"" 1794,
June 14.

}

12969

Dr. Ruston. 6 W'r'ts of 400 a's Am't, 2400 a's, 50s p. c't p'd specie ch.,

Fees 608 p'd, rem'r Charge of 168 D's.

£60

"Rec'd d'd."
To this the counsel for the defendants ob-
jected on two grounds: 1, that the warrant to
Lewis Walker appearing to be dated Novem-
ber 26, 1793, it was not competent to prove pay-
ment of the purchase money by Ruston, on
June 14, 1794; and 2, that if any title whatever
accrued to Ruston, it would be but a resulting
trust, as the plaintiffs did not propose to follow
it with any evidence showing a conveyance
of the legal title to Ruston or those claiming
under him, or any possession of the land by
him or them, or the bringing of any action of

of the same to LeFavre by a marshal's deed.
Nicholas Le Favre having died, his will was ad-
mitted to probate on the 12th of August, 1815,
on which day William R. Smith took out letters
of administration with the will annexed. A
schedule attached to the will of the testator, of
his lands in Pennsylvania, included the Lewis
Walker tract of 3711 acres. In 1836, William
R. Smith, the administrator with the will an-
nexed of Nicholas LeFavre, petitioned the
Orphans' Court of Philadelphia for an order to
sell real estate to pay the debts of the decedent.
By further proceedings upon said application
in the Orphans' Court of Northumberland
County, where a portion of the lands of Le-
Favre were located, a decree of sale was ob
tained; and the Lewis Walker tract, among
others, was sold on the 9th of May, 1837, to
Joseph Brobst, as the property of Nicholas Le-
Favre. A deed was made to Brobst for the
land, and the sale confirmed in Northumberland
County, where the lands were located. By
sundry mesne conveyances the title of Brobst
was vested in the plaintiffs below.

There was evidence tending to show that the
lands in controversy were wild and unim-
proved until 1864, when the parties through
whom the plaintiffs claim title took actual pes-
session thereof, and improved the same by the
erection of a house and sawmill, and put to
work a corps of men for the purpose of proving
the coal veins. These operations and expend
itures were continued for a period of about
eighteen months, at a cost of between $40,000
and $50,000, when the work was suspended as
not being profitable, but possession was main-
tained through agents and tenants until 1875,
when the defendants took forcible possession,
claiming title.

The defendants below objected to the admission in evidence of the records from the Orphans' Court of Philadelphia, showing the proceed ings resulting in the sale of the lands of Nicholas LeFavre to Joseph Brobst, on the ground that the debts of the decedent, as se forth in the petition of the administrator, to pay which the order of sale issued, were barred by the Statute of Limitations and their lieu extinguished, by reason of which it was claimed

[469]

that the orphans' court had no jurisdiction to
grant the order. The objection was overruled,
and an exception taken.

There was also evidence introduced by the
plaintiffs, which was objected to, tending to
show payment of taxes by those under whom
the plaintiffs claim.

The defendants below offered in evidence on their part an application of Daniel Reese, Lewis Walker, and others, filed in the land-office November 26, 1793, indorsed "Ent'd by Wm. Lane for Daniel Rees;" also the warrant from the Commonwealth to Lewis Walker for 400 acres, dated November 26, 1793; also the survey to Lewis Walker made October 22 1794, in pursuance of the warrant of November 26, 1793, describing the tract in dispute; and then offered a certified copy of a patent from the Commonwealth of Pennsylvania to Peter Grahl, dated April 12, 1797, for the same tract, which patent contained a recital to the effect that Lewis Walker, by deed dated November 27, 1793, had conveyed the said tract with the appurtenances to Peter Grahl. Counsel for the plaintiffs below objected to the introduction in evidence of this patent, on the ground that Dr. Ruston held a prior title to the land from the Commonwealth. This objection was sustained, the court refusing to allow the patent to be read to the jury, to which the defendants excepted. The defendants below then renewed the offer of the patent to Peter Grahl for the land in dispute, in connection with an offer to prove a connected chain of title from Peter Grahl to themselves, to be followed by proof that they took actual possession of the the land in dispute in 1875, paid taxes by redeeming the land from tax sales, made improvements, expended large sums of money in opening coal mines, [470] and have ever since held actual possession of the land; and also that Nicholas LeFavre, who purchased the alleged title of Dr. Ruston at marshal's sale on October 11, 1803, received notice in October, 1814, of the title of Peter Grahl under the patent to him, and that the plaintiffs below, when they purchased at sheriff's sale in 1872, received notice of the same facts. This offer was rejected, and an exception duly

date of June 14, 1794, from the old purchase
blotter in the land-office. These documents
were offered to show, and they are evidence
tending to show, that Dr. Thomas Ruston was
the owner of the Lewis Walker warrant, and
paid to the Commonwealth the purchase money
for said tract of land."
And also:

"The plaintiffs have shown that by sundry
mesne conveyances the title which Nicholas
LeFavre thus acquired became vested in them
prior to the bringing of this action. In connec-
tion with their paper title the plaintiffs gave evi-
dence tending to show that for many years
they and those under whom they claim asserted
title to the land and paid taxes thereon without
any hostile claim being set up against them
until the year 1875, when the defendants took
possession. If the evidence on the part of the
plaintiffs is believed by the jury, it makes out a
prima facie case for the plaintiffs, and they are
entitled to your verdict upon this branch of
their title."

To these charges the defendants excepted. These several rulings of the court are now assigned for error.

In the case of Sims v. Irvine, 8 U. S. 3 Dall. 425 [1:665], which was an ejectment for land lying in Pennsylvania, decided by this court in 1799, it was said that, in that State, "Payment, or, as in this case, consideration passed, and a survey, though unaccompanied by a patent, gave a legal right of entry which is sufficient in ejectment. Why they have been adjudged to give such right, whether from a defect of chancery powers or for other reasons of policy or justice, is not now material. The right once having become an established legal right, and having incorporated itself as such with property and tenures, it remains a legal right notwithstanding any new distribution of judicial powers, and must be regarded by the common-law courts of the United States in Pennsylvania as a rule of decision."

The case of Evans v. Patterson, 71 U. S. 4
Wall. 224 [18:393], decided in 1886, was simi-
lar. In that case Mr. Justice Grier, delivering
the opinion of the court, said, p. 230 [394],
taken.
"The case cannot be made intelligible without
The court below also refused to allow the de-a brief notice of the very peculiar land law of
fendants to read in evidence certain parts of the
return of William Gray, deputy surveyor, to
the commissioners of Northumberland County,
made in 1796, other parts of which had been
read by the plaintiffs below, in order to show
that the taxes paid by Dr. Ruston on the lands
which he did in fact own in the same county,
and paid into the same office during the same
time, were paid to or by a different person than
the taxes paid on the land in dispute; and to
show that there was another tract surveyed by
the Commonwealth in the same locality and in
the same county in the name of Lewis Walker
as warrantee, which was claimed by Dr. Rus-
ton. These offers were also rejected by the
court, to which ruling the defendants excepted.
The court below charged the jury, among
other things, as follows:

The plaintiffs put in evidence a certified copy of an ancient paper, dated November 26, 1793, on file in the land-office, designated as old purchase voucher No. 12969, and in connection therewith a certified copy of an entry, under

Pennsylvania. The proprietors of the Prov-
ince, in the beginning, allowed no one man to
locate and survey more than three hundred
acres. To evade this rule in after times, it was
the custom for speculators in land to make ap-
plication in the names of third persons, and,
having obtained a warrant, to take from them
what was called a 'deed-poll' or a brief convey.
ance of their inchoate equitable claim. Penu-
sylvania, until of late years, had no courts of
equity. Hence, in an action of ejectment, the
plaintiff might recover without showing a legal
title. If he had a prior inchoate or equitable
title, either as trustee or cestui que trust, he
might recover. The courts treated the appli-
cant or warrantee as trustee for the party who
paid the purchase money, or paid even the sur-
veying fees; for the purchase money, under the
location or application system, was not paid at
the time, and sometimes never. When the
State succeeded to the title of the proprietors,
the application system was abandoned, and
warrants were granted on payment of the pur-

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