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1807.

MRHEA

0.

by possibility mislead a settler of common sense, because the deputy surveyor and not the trees should be his guide. A reference to the officer would settle the question, whether or no the lands were appropriated. This is a case entirely out of the spi- PLUMMER. rit of the law. It would surely be absurd, if a vacant tract were surrounded by three surveys, to argue that a surveyor must re-measure and mark the lines that were common to the vacant tract; yet this is the letter of the law; it is equally so to argue that he must repeat an entire survey once regularly made by public authority. But it is indeed questionable whether the act of 1785 applies at all to surveys under the act of 1792; on the contrary the general provisions of the law are clearly confined to the lands particularly mentioned therein, and for which the legislature contemplated so great a press of applications. that it became necessary to secure each person his fair priority by the clause in question.

TILGHMAN C. J. after stating the facts, proceeded as follows. It was objected at the trial that the survey of the land in question was void, having been made before the warrant came to the hands of the deputy surveyor. Judge Yeates was of opinion that under the circumstances of this case the survey was not void; and that is the point now to be decided.

As it is admitted that the commonwealth received the full price of the land, that there has been at some time an accurate survey marked on the ground, and that when the appropriation was made for the plaintiff, there was no settler on the land, nothing but very clear and positive law ought to deprive the plaintiff of his purchase.

The objection to the survey is founded on the 9th section of the act of 8th April 1785. I shall give no opinion at this time whether the provision of this section extends to surveys made under the act of 3d April 1792. I understand that in the case of Wright's lessee v. Wells tried at Nisi Prius at Washington before the late Chief Justice M'Kean and Judge Yeates, it was held that it was restrained to lands then lately purchased by the commonwealth from the Indians, and intended to be sold in a short time. But supposing that it extended to all surveys on warrants issued after the passing of that act, though the present case may fall within the words, it is evident that it is not within the spirit and intention of the act. The intent was to prevent

1807.

MRHEA

v.

all persons, surveyors as well as others, from making surveys without authority, and to declare all surveys so made, absolutely void. Now the surveys of the depreciation lands were made PLUMMER. under the authority of the state. Let us compare this case with others that have been decided, and concerning which there is no question. Suppose a surveyor receives a warrant, and the land to be surveyed on it is bounded on three sides by the lines of other tracts which he has surveyed before. It is not contended that he is obliged to run those three lines over again; and why? Because it would be useless trouble, those lines having been run and marked by legal authority before; and yet he does not comply with the words of the act, which require him to run the lines and mark them, after the warrant comes to his hand. Here then is an implied exception from the words, in order to comply with the spirit of the act. Nothing more is to be done in the case before us. What mischief can arise from this construction? It is said the actual settlers will be deceived, because they can find no marks made since 3d April 1792. But if they take due pains they cannot be deceived. It is in vain for any man to seek for proper information by hunting for marks on the ground, without applying to the deputy surveyor, who is obliged to keep books for the purpose of information. The marks on the ground give no satisfaction, for they may have been made by unauthorized persons. But the surveyor's books combined with the marks on the ground, will make every thing clear. The entries in the books of the surveyor would have shewn that this land had been surveyed; and if upon comparing the marks on the ground with the surveyor's entry, a difficulty had occurred because the marks appeared older than the entry, this would have been at once explained by the surveyor on application to him. Every prudent and honest man would naturally make such an application, before he expended his time labour and money in making a settlement. If in any case it has happened that a settler has in fact been deceived, even through his own inadvertency, I can only express my hope that the warrantee will take that circumstance into consideration, and let him have a reasonable portion of the land on moderate terms. I have no hesitation in saying that in my opinion every honest conscientious man ought so to do. But at present we are called upon to decide the law.

For the reasons I have given I see no cause to differ from the 1807. opinion delivered by Judge Yeates. I am therefore of opinion MRHEA that the award of a new trial be affirmed.

SMITH J. Concurred.

BRACKENRIDGE J. I cannot assent to the opinion delivered by the Chief Justice. The act of 1785 I have no doubt extends to this case; and although I will not say that an omission to go on the ground and mark the lines avoids the survey, as this part of the section may be considered directory, yet if the survey is not made after the warrant comes to the hands of the deputy surveyor, it is absolutely void; for that part of the section is positive, and not directory. In this case the survey was not made after the warrant was delivered to the deputy surveyor.

V.

PLUMMER.

Lessee of PATTERSON against COCHRAN.

THIS

Pittsburg
Friday,

18th.

The want of

settlement within two

against the

warrantee

HIS was an ejectment for lands lying north and west of the September Ohio &c. It was tried before Yeates J. at a Circuit Court. for Beaver in September 1806, when the following facts appear- an actual ed in evidence. The plaintiff's title was founded on a warrant dated the 14th April 1792, which was entered in the deputy years from the pacificasurveyor's office on the 10th June 1793, and a survey made. tion with the thereon the 6th April 1795. In the spring of 1797, the defend- Indians, canant entered on the land, made an improvement, and resided not be set up there at the time of trial. In the summer of 1797 the de-title of a fendant received warning to leave the land from Ennion Wil- under the liams the agent of the Population company, to whom in fact it act of April belonged; but he refused to give up the possession, and told Williams that "he held in opposition to the Population compa- has taken ny, and meant so to hold." The court was of opinion that al-possession though the plaintiff had made no actual settlement, yet as he of the land, was prevented there from by hostilities, and was entitled to two the years from the pacification by General Wayne's treaty for mak- tion of the ing it, a refusal by the defendant during that period to deliver has refused up the possession, estopped him from urging a want of settle- to deliver it

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3d 1792, by

a person who

wrongful

and before

expira

two years

up to the

warrantee.

A bare refusal is enough to estop the possessor, without the threat or use of actual force.

1807.

Lessee of

PATTER

SON

υ.

ment against the plaintiff's title. The jury however found for the defendant. A new trial was then awarded, and the defendant appealed from the decision to this court.

A. W. Foster for the defendant, said that he took the law to COCHRAN, be settled that there could be no title without an actual settlement within two years from the pacification by General Wayne's treaty. The act of assembly of 3d April 1792, recognises no prevention but by force of arms of the enemies of the United States; and in this case the defendant merely refused to deliver up the part he occupied, without any display or threat of resistance. To prevent the defendant from alleging this matter, it should at least be shewn that he had held the plaintiff out by force; it might then be a different case. If A. is bound in a bond conditioned to enfeoff J. S. and the obligee disseises A. this is no plea to the bond, because he might have entered and made the feoffment, and the obligor is bound to do all he can; but it would have been a good plea, that the obligee held him out by force, so that he could not enter. Lancashire v. Killingworth. (a) Co. Litt. 206. b.

Woods for the plaintiff, said that the defendant had entered during the two years, and had declared an intention to hold possession; which was all that was necessary to bring it within Hazard's lessee v. Lowry. (b) The plaintiff had a right to settle on any part of the land, and the law does not demand of any man that he shall actually encounter danger in order to enforce his right, but always justifies his recourse to an action. The defendant has wrongfully prevented the settlement, and therefore he cannot object the want of it.

TILGHMAN C. J. after stating the facts, proceeded as fol lows. The defendant relies on the defect in the plaintiff's title, a settlement not having been made in pursuance of the act of 3d April 1792. It was decided by this court on the motion for a mandamus to Tench Coxe, (c) and on the trial of the issue at Sunbury at the special court directed to be held by an act of Assembly, (d) that if a warrantee was prevented by war from

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1807.

Lessee

of

SON

υ.

COCHRAN.

making a settlement in two years from the date of the warrant, his title was not extinguished, but he should be allowed a reasonable time for making such settlement after the prevention by war ceased. And it was determined by this court at this place PATTERlast September term, in the case of Hazard's lessee v. Lowry, that such reasonable time was not less than two years from the pacification by General Wayne's treaty with the Indians. Now the plaintiff was prevented from making a settlement within two years from the pacification by Wayne's treaty, by the wrongful act of the defendant, who refused to give up the land which he had improperly entered on. I say he was hindered, because although the defendant did not occupy the whole land, yet having said that he held and meant to hold against the Population company, the probability was that if the plaintiff had attempted to take possession, it might have been attended with personal injury. The law compels no man to run risks of this kind. Having demanded possession, which the defendant refused to deliver, the plaintiff's most prudent line of conduct was that which he has pursued, to appeal to the laws of his country for redress. The defendant having thus hindered the plaintiff from making a settlement, shall not be permitted to defend himself against the plaintiff because a settlement has not been made. There are many cases in which it has been held contrary to equity and good conscience, and destructive of morality, to permit defendants in ejectment to take advantage of a defect in the plaintiff's title. A man who has received land under a lease, is not permitted to controvert the title of his lessor. A mortgagee omits to record his mortgage in six months; although the mortgage is declared by act of Assembly to be of no validity, yet it has been decided that a person who purchases from the mortgagor with notice of the mortgage, shall hold the land subject to the mortgage. The present case is much stronger than either of them. It would be an outrage on society, a violation of the first principles of sound policy and good government, to permit a wrong-doer thus to derive benefit from his wrongful conduct. Indeed the very question in dispute is not new in this court. In the case of Neighman v. Staines, tried at Nisi Prius before Judges Yeates and Smith, and in the case of the mandamus, and in that of Hazard's lessee v. Lowry which I have mentioned before, the court expressed their opinion that a warrantee who had not made a settlement, might recover in ejectment VOL. I. 2 G

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