Opinion of the Court. 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, 3 Dall. 424, 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, 4 Wall. 224, 230, decided in 1886, was similar. In that case Mr. Justice Grier, delivering the opinion of the court, said: "The case cannot be made intelligible without a brief notice of the very peculiar land law of Pennsylvania. The proprietors of the province, 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 application in the names of third persons, and, having obtained a warrant, to take from them what was called a "deed-poll” or a brief conveyance of their inchoate equitable claim. Pennsylvania, until of late years, had no courts of equity. Hence, in an action of ejection, 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 applicant, or warrantee, as trustee for the party who paid the purchase money, or paid even the surveying fees; for the Opinion of the Court. 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 purchase money for the number of acres for which his warrant called. Hence, where the claimant of the warrant was unable to show his deed-poll, he might recover by showing that he paid the purchase money; that the warrantee whose name was used was, therefore, trustee for him. And an ejectment might also be maintained in the name of the warrantee, although he had no beneficial interest in the land, and had no knowledge of the institution of the suit. See Campbell v. Galbreath, 1 Watts, 78, and also Ross v. Barker, 5 Watts, 391, which was decided on the title now in question." It is equally well established that the action of ejectment may be maintained upon a warrant and survey by the owner who paid the purchase money, without any conveyance from the person in whose name the application was made and the warrant issued. Brown v. Galloway, Peters C. C. 291; Willink v. Miles, Peters C. C. 429. It was said by Mr. Justice Washington in Пuidekoper v. Burrus, 1 Wash. C. C. 109, 113, that "the person whose name appears on the warrant is considered as merely a nominal grantee, and a trustee for the person who pays for the warrant and has it executed;" stating, as a matter of fact in the history of the practice of the state, that" whereever one person takes out many warrants he borrows the names of certain persons, no matter who they are." See also Griffith v. Tunckhauser, Peters C. C. 418; James v. Gordon, 1 Wash. C. C. 333; Copley v. Riddle, 2 Wash. C. C. 354. This doctrine is established as the law of Pennsylvania by many decisions of the Supreme Court of that state. In Duer v. Boyd, 1 S. & R. 203, 210, that court said: "For above fifty years past lands held by warrant and survey, without patents, have been considered as the legal estate in England, subject to the liens of judgments, courtesy, dower, and other incidents of real property. In Maclay v. Work, 5 Binney, 154, 158, it is said: "An estate held by warrant and survey, or other imperfect title, without Opinion of the Court. patent, is of a singular nature. In many, and indeed in most respects, it is considered as a legal estate against all persons but the commonwealth. It is subject to the same laws of descent, devise, and conveyance as the legal estate. Tenancy by the courtesy and in dower are attached to it. An ejectment may be supported on it." And in Gingrich v. Foltz, 19 Penn. St. 38, 40 [S. C. 57 Am. Dec. 631], it is said: "In Pennsylvania a warrant and survey, attended with payment of the purchase money, is to be considered, as against all but the commonwealth, in the same light as the legal estate in England, and is not to be distinguished, as to the mode of conveying, entailing, and barring entails, from estates strictly legal. If the warrant, survey, and payment of the purchase money constitute the legal title, it is impossible to comprehend how the commonwealth can, by any act whatever, after she has parted with that title, prejudice, much less extinguish, it." Upon this view of the law, it appears from the record that the plaintiffs below proved a legal title to the Lewis Walker tract in controversy in Dr. Thomas Ruston. The old purchase voucher No. 12,969, offered in evidence, shows that the purchase money for the six tracts described was paid by one person; and the receipt, being a copy from the old purchase blotter, also No. 12,969 to correspond, shows that the owner of the warrants, by virtue of the payment of the purchase money, was Dr. Ruston. Counsel for the plaintiffs in error seek to read the abbreviations in that extract from the old purchase blotter as showing that the purchase money had not been paid in full, but we think it otherwise sufficiently appears, not only on the face of the receipt itself, but also from the statement on the margin of the old purchase voucher, that a general receipt had been given, corroborated by the fact that the warrants were actually issued. A point is made on behalf of the plaintiffs in error that the issue of the warrant cannot be considered as evidence of the payment of the purchase money, because it is dated prior to the date of the receipt taken from the old purchase blotter, the warrant being dated the 26th of November, 1793, and the Opinion of the Court. receipt the 14th of June, 1794. This, however, is explained by the practice, known to have existed, that while a warrant was never issued except after the payment of the purchase money, yet it was dated as of the date of the entry in the old purchase voucher, which was the authority given to the surveyor to locate the land, the warrant being subsequently issued so as to relate back to that date. In Brown v. Galloway, Peters C. C. 291, Mr. Justice Washington said: A warrant for land "according to long and uniform practice, is dated as of the day of the application, although it is retained until the purchase money is paid, when, and not before, it issues to the party." To the same effect is Lewis v. Meredith, 3 Wash. C. C. 81. The competency and value of the two documents from the old purchase voucher and the old purchase blotter, to prove the fact of the payment of the purchase money, and by whom it was paid, are stated by the Supreme Court of Pennsylvania, in the case of Cliphant v. Ferren, 1 Watts, 57. It is there said that these entries were made by John Keble, who was chief clerk in the Receiver General's Office. Prior to 1823, proof of the payment of the purchase money was made by the production of the original receipt, or the testimony of Keble during his lifetime, and after his death, proof of his handwriting and entry in these books. In 1823, however, by a statute passed during that year, the books themselves, and copies from them, were made prima facie evidence. The matter is thus explained by Judge Huston in his Essay on the History and Nature of Original Titles to Land in the Province and State of Pennsylvania, Charles Huston, p. 335: "Even on warrants where money was paid, there was sometimes difficulty as to who was the owner. The warrant, being in a name different from that of the claimant on its face, proved nothing. Where the owner, when he took out his warrant, took a receipt for his purchase money and preserved it, this often decided the question of ownership, and it became usual for a plaintiff to recover on such a receipt, without producing any conveyance from the person whose name was used in the warrant. But where the owner either took no receipt, Opinion of the Court. or it was lost or mislaid, the ownership must be proved by other means. The common books of the land office charged the warrantee with the land and credited him with the payment of the money. When it became necessary to pay the money before you got the warrant, and while John Keble was chief clerk in the Receiver General's Office, he kept an account of who paid the money on every warrant sealed in that office. The entry, however, is not easily understood, except by those acquainted with the office. Every application was numbered successively, as they were handed in, from one up to near twenty thousand. Some of these applications were for a single tract, and many for more than one hundred, the last written on a single sheet of paper, or several sheets attached together. On each of these was marked the date when filed, and the name of the man who payed the money always appeared. When you applied for a warrant, there were marks by which you could refer to and find the application, and from the application and its number and date, you could find the entry in John Keble's blotter, and there see who paid the purchase money. The right to many tracts has been ascertained by searching as here mentioned; and a copy of that blotter under seal of office, is now evidence in a court of justice, by a particular act of assembly. So careful was John Keble that if the person who paid the money told him by whom it was sent, that also appeared in the blotter." Vide, also, Campbell v. Galbreath, 1 Watts, 70. There is nothing in the case of Strimpfler v. Roberts, 18Penn. St. 283 [S. C. 57 Am. Dec. 606], cited and relied upon by the plaintiffs in error, inconsistent with the foregoing. In that case the plaintiffs in the ejectment were permitted to prove that Benson, under whom they claimed, had paid the purchase money, and they did so by the blotters, vouchers, &c., as in the present instance; and it was admitted and decided in that case that such proof established a prima facie title in them, but one, however, which might be overcome by proof of the fact that Benson, who appeared to have paid the purchase money, had done so, not on his own behalf, but as agent for others; and that fact |