author: Kennedy, J.

text:
    McMUTRIE et al. against McCORMICK.
    IN ERROR.
    In Pennsylvania there are two modes, by which a title to lands may be acquired from the Commonwealth; First, by warrant or location and survey, and, Second, by an actual, personal, resident settlement upon the land itself. The exercise of rets of ownership for any length of time, will hot raise such a presumption of a grant from the Commonwealth, as to be of Itself a good title. ’
    Without an office-right from the Commonwealth, no possession that can be taken of land, short of an actual, personal, resident settlement upon it, or an improvement; commenced with such intent, to take effect immediately, and to be carried on with due diligence, will amount to an appropriation of the land, or give the least 'shadow or oolor of right or claim, even to the possession of it.
    Whether or not there is a want(of due diligence, in the prosecution of an inceptive.
    right to lands, is a matter o,f fact, whipli is always properly submitted to the jury. An improvement, in order to be available in law, so rs to give a presumptive right to land, must be commenced with intent to make an immediate settlement, and prosecuted with duediligenoe until the settlement be completed; and if done so, the title so acquired will relate back to the commencement of the improvement.
    Error to the Common Pleas of Huntingdon county.
    This was an action of ejectment in which Alexander McCormick was plaintiff, and William Martin and William McMutrie, were defendants in the court below. The principal questions in the cause were, whether the land in dispute was subject to gctual settlement in 1827, heing tffen vacant? Was it within the lines of the defendant’s survey? If not, bad it been appropriated by those under whom they claimed, previously to 1827? The parol evidence, which was voluminous, need not be here stated,, as. the opinion of the court helow, will sufficiently explain^ the questions decided. The court thus charged the jury.
    “The lineson the ground form the true survey; the notes,returns of surveys, and drafts, are only evidence of the survey. liRced is correct, the survey on the ground of George Allen excluded the land in dispute; yet to give McMutrie his distance, you would have to go to the line run-by Hunter an& Wilson. This principle equally applies to Alexander McCormick’s survey: He had an old and early improvement, on which he took a warrant in 1795, calling for McMiUrie as a boundary. Shortly before the. survey was made on that warrant, Wilson and Hunter., were called by ÍDavid McMutrie and dames McMutrie, and old Alexander. McCormick to ñx the lines of McMutrie’s survey, in the name of George Allen. They did so on the 12th and 13th of November, 1S01. On the 18’th pf December, following, olej Mr. McCormick had his survey made in accordance with the line run By Wilson and Hunter, qpd so returned. This binds him, and. it is idle, oy worse than idle, to say thir.ty years after, this was a mistake. If Wilson is believed, old Alexander McCormick conceded that the southern ling of his survey, was’fhe northern boundary of McMutrie’$
      claim. McCormick’s return of survey binds him, and by that title, he cannot go a foot beyond it. Old Mr. Me Cor mick pursued a correct course, to have all his boundaries settled before he had his survey returned, so as to prevent disputes with his neighbours. Boundaries fixed by the parties are entitled to great respect, and should never be departed from, where there is no fraud. Alexander McCormick, the elder, devised his estate to his two sons, Robert and Alexander, (the plaintiffs.) Robert’s part adjoined the land in dispute. Is there any evidence that old Alexander McCormick ever claimed it? The lands of Robert and Alexander McCor.i mick have been sold at Sheriff’s sale, and all their title, to the old tract at least, divested. Now as a plaintiff in ejectment must recover on the strength of his own-title, and not on the weakness of his adversary’s, it is manifest, if tjie law be regarded, the plaintiff can derive no right to recover, froin any improvement or title .of his own, prior to the sheriff’s sale. What title then has the plaintiff shewn? The only title he can recover on, is his attempt to build a house in 1S27. This is the only title he has. ' He did not enter on the ground and .cut the timber. He hauled old logs from below Moor’s mill, and commenced building a house. As soon as he was discovered, and when he got it to the square, the McMutries went and' pulled it down, and hauled his logs away. This then is his title, and his only title; and circumstanced as this case is, the only title he can rely on. To January Term 1829, he brings this ejectment, on this title. The defendants contend that the land in dispute is included in this survey on a warrant to George Allen, and made in 1762, and returned into the Land Office on' the 7th of January, 1763. Every man is bound to take notice of a survey returned. It is constructive notice, and binds equally with actual. We have said, if Reed be correct, the first survey made on. the ground excludes the land in dispute; but thé defendants’counsel contend, that after the line was run along the foot of the Piny Ridge, the survey was extended on paper before return; and to prove this, they rely on the fact, that the lines are too short, that Gardner’s survey, • which they have shown, made'on the same day, calls for Allen; that they always claimed their full distance; that old Alexander McCormick so recognized their survey; and that they have been in possession of the general traet, claiming three hundred acres, and their full distance on the ground. If this land was plotted in by the Deputy Surveyor, and so returned in 3'763, and included in that return, it was not vacant; it was not-.-open to settlement and improvement. But as the Surveyor retained the corners, and those corners are found, it is powerful evidence that-the Surveyor'did not plot in any land, or he would have thrown away his corners and called for posts;, and more especially so, when a line is found'on the ground,running from corner to cornerN

      “We say, if the lines were extended before return, of which the jury will judge, the plaintiff has no pretence of claim. Butsuppose they were not extended, this case presents other points for serious and deliberate consideration. It manifestly appears from the testimony of Wilson, and from, the warrant and survey made and returned, that old Alexander McCormick, recognized this land as the property of McMutrie; that Robert and Alexander McCormick, the plaintiffs, knew that the McMutries claimed it. Part of it had been sold to William Myton, the deed for that was acknowledged before Alexander Mc Cormick, oh the 18th of August, 181S. As to this part of the property in dispute, Alexander McCormick knew it was sold to Myton, who i.s siqce deceased. If- the plaintiff stood still and did not give notice of his claim, if he had any claim, equity will postpone him. If a man looks on and sees another purchase and pay his money, and does not disclose his claim, he will be postponed. - Myton went into possession under his purchase, and under the old title. You will observe, the land in dispute never was’ claimed by the defendants by improvement,it •was always claimedunder thetitle of 1762,as within their purchase. Some actual possession was taken of it, acts of ownership exercised upon it, such'as a farmer usually in Pennsylvania exercises over, his timber lands. Their houndaiy was fixed by Surveyors on that side thirty years ago; now so far as actual possession has been held for twenty-'one years before this ejectment brought, the title is good; for the law is, that actual occupation, however tortious it might be, however destitute of the color of title, either in law or equity, gives a right to the extent of' the inclosure, against all the wo.rld but the State,- 10 Serg. <§-. Rawle 338. Was-there any vacant land here, vacant in the beginning of April 1827? The defendant had exercised acts of ownership oyer it, and claimed it as within their .ho, undary, and that boundary actually run and marked on the ground for'more than thirty years. The survey of Alexander McCormick, ' sen’r. calls for "adjoining Allen.” There appears no vacancy in.the office of the Deputy Surveyor, or in the Land Office. Suppose then it was not without the surveyed or returned lines of Allen. If the jury should so believe, and also be. of opinion, that it was claimed-under ,the old title of McMutrie, and the usual possession that is exercised over timber land, was it open for settlement?
    We-.think it .was so,- to a honest bona fide, settler. If it was not within .the lines of Allen's return of survey. But you. will observe •that the plaintiff.did not.clear any land, or cut any timber; he hauled logs from .a distance, an April 1827', and got his, house to the square. He never returned to the land, nor did he bring this ejectment till January Term, 1829. Was this diligence? When a man commences, an improvement, he is bound to use diligence. llera belays by from April, 1827, to November, 1829; in th§ meantime the defendants build a house. True he warned them,and throw that house down; still the jury are to determine did he use diligence. If, then, the jury should be of opinion, that the land was not within defendants’ survey as returned, and that he did use due diligence, they may find such part for the plaintiff as was not in. adverse possession, twenty-one years before ejectment brought; and which McCormick did not claim when it was sold to an innocent purchaser, without discovering his title. But if within defendants’ survey, or if he did not use diligence, then they should find for defendants.”
    The jury found a verdict for the plaintiff, upon which judgment was entered. To reverse which, the writ of error was sued out, and the following errors assigned.
    1. The court erred in instructing the jury, that the land in controversy,under the evidénce, was open to settlement, if they should be of opinion that it was not within the surveyed or returned line? of George Mien.

      2. In submitting it as a question for the decision of the jury, whether due diligence had been used by the plaintiff below, in the prosecution of his pretended settlement, when in truth there was no evidence of diligence.
    3. In not instructing the jury, as matter of law, that the plaintiff could not support his ejectment under the evidence given in the cause.

      Miles for plaintiff in error.

      Potter and Planchará contra.
   The opinion of the court was delivered by

Kennedy, J.

The first error assigned in this case is, “that the courterred in instructing the jury, that the land in controversy, under the evidence, was open to settlement, if they should be of opinion, that it was not within the surveyed or returned lines of George Mien.” In this I can perceive no error. In this State two modes have obtained, by which, the inception of a right or title to lands from the Commonwealth may be acquired. First, by warrant or location and survey; and second, by an actual, personal, resident settlement upon the land itself. Anterior to the spring of' 1827, .when McCormick commenced building a house on the land in dispute, and was prevented from going on with the finishing of it by McMutrie, it does not appear, from the evidence, that McMutriehad made an actual, personal, resident settlement upon it, or that he had ever commenced any improvement thereon, with that view; Indeed it was not pretended by- him or his counsel, that he had in this way acquired any title to the land. But it was shewn by him that he had become invested with the title under the warrant granted to George Allen,, and the survey made and returned in pursuance of it; and conténded, that the survey included the- land in dispute. It is clear, that if the survey made under Allen’s warrant, embraced the land, it.was no longer vacant and unappropriated, and liable to be obtained from the State by any other person, either by warrant or'settlement. But if the survey did not include the land in dispute, it then, for any thing that appeared in evidence', was in the spring of 1827, when McCormick commenced building'the house, vacant and unappropriated. And "if so, it follows' necessarily, that the right to it .was still in the Commonwealth, and that it was liable to be obtained either by warrant or settlement; and by him who should first resort to one or other of these two modes.

The only arguments offered jn opposition to this are, first, that as evidence had been given by McMutrie of his having, for upwards of twenty years, exercised acts of ownership upon the land in dispute, by cutting timber upon it, and by clearing-about half an acre, a part of a field upon the Allen survey, and which extended over upon the,land in dispute, and beyond what McCormick alleged was the true boundary of that survey; and at the same time professing to claim and to hold this land in dispute,as land embraced by the survey made and returned under Allen’s warrant,that the juryr ought to have been instructed by the court, that they might presume a grant from the Commonwealth toMcMutrie for the land.. It might perhaps be sufficient in answer to this,to say, that it does not appear that any such instruction- was asked for of the court. But if it had, it ought not to have been given; because all grants of land by the Commonwealth are put upon record,and are required to be so; and as long as those records are preserved and continue to exist, conclusive evidence of the grant, if any has ever been made, will be found there: And if upon examination, no record of a grant can be discovered, it raises a most violent presumption of a directly opposite nature; which is, that no such grant was ever made.

If the law were otherwise, many of those who hold their lands in this State, merely by settlements or location^ and surveys, for which no part "of the purchase money due to the State has been paid, would stand discharged of all claim for it. When by the laws of the Commonwealth, persons are permitted to acquire a preemption right to lands; by entering upon them at pleasure and making settlements, the-kstabh'shment of such a presumption would only be calculated to defeat and to defraud - the State of her just right tojthe- purchase money. • I

' The circumstances, however, which the plaintifls in error, here claim to have been sufficient to have raised "such presumption in. his favor, might, where the evidence with respect to the real extent of the survey under the Allen warrant was doubtful, weigh something with the jttry, in determining that question, which was a matter of fact, belonging exclusively to their province to decide; and as such it was rightly committed to them by the court.

In the next place, it has been argued that McMutrie had such a possession of the land in dispute, by exercising these acts of ownership over it, as did not leave it open to settlement by any other person. Here it rather seemed to be admitted, that if the presumption contended for, did not arise against the Commonwealth, that she might have granted a warrant for the land to any person, and that it Would have been good. Of the correctness of this, I think there can be no doubt. For it is not pretended, nor would the evidence seem to warrant it, that McMutrie, previously to McCormick’s commencing the building of his house, had commenced an improvement with an intent to make an immediate settlement, and that he had prosecuted the same with due diligence. Yet without this, or a location or warrant and survey, McMutrie could have no possession known to, and recognized by the law, that could in any manner oppose the Commonwealth in granting a title for the land to any other person, or stand in the way of any other person, acquiring a right to it either by settlement or otherwise. If it be open and liable to be obtained in the one way,it must also be so in the other,for the law has made no distinction. Without an office-right from the Commonwealth, no possession that can be taken of land short of an actual, personal,resident settlement uponit, or an improvement commenced with such intent, to take effect'immediately, and to be carried on with due diligence, will amountto an appropriation of the land, or give the least shadow or coloring of right or claim even to the possession of it. The man who takes, or attempts to take possession of land, belonging to the Commonwealth and unappropriated, for the purpose of preventing others from settling, without any such intention upon his part, .acts in violation of all law: or even if he take possession for the purpose of clearing, enclosing and tilling it, with a view in this way to make gain or profit out of it, but without any intention of making it the place of his abode, and the means of subsisting himself and family, be trespasses upon the rights of the Commonwealth, and acts in direct violation of law, if he attempts to prevent another from entering upon the land, who wishes to become a bona fide settler upon it. His clearing over the lines of the survey under the Allen warrant, can vest no interest whatever in the vacant lands of the Commonwealth. See Morris v. Thomas, 5 Bin. 77. He cannot hold contiguous lands, not included in the survey. See Holmes v. Hay, 3 Yeates, 588.

It is surely no justification for McMutrie. that he thought the land in dispute was included in the Allen survey, and that he thereby had a good right for it, because he was hound at his peril to know the extent of the survey under which he claimed, and his mistake in this respect can avail him nothing. And although Mc~ Cormick believed that McMutrie labored under this mistake, and knew that he claimed the land in dispute as being part of the Allen survey, yet he was not bound to undeceive him, as long as he had no right or claim to the land himself. Indeed it is highly probable that McCormick, from hearing McMutrie claim the land in this way, was a long time impressed with the belief that it was included in the Allen survey, and therefore of right properly belonged to him; and as long as he remained under that impression, assented to the land’s being the property of McMutrie, and treated it as such; but still I am at a loss to perceive, upon what principle of law or common sense, this should preclude McCormick from endeavoring to obtain a right for it from the Commonwealth, to whom it did most certainly belong, clear of all color’of claim existing on the part of McMutrie.

McMutrie, then, if the land in dispute was not included in the survey made and returned under the Allen warrant, had no possession of it whatever, that Could avail him any thing, or prevent others from obtaining d title from the State for it, either by taking out a Warrant for, or by making a settlement on it, as either course' must be alike open to the party, for him to elect that ‘Which may best suit his circumstances. McMutrie must be considered in the light of a trespasser, in what he did upon the land in dispute, and guilty of a flagrant violation of the law, in throwing down the house of McCormick, and in thus preventing him from going on to complete his Settlement. It would be strange indeed if he were to be permitted, either to take advantage of his own wrong, or thereby suffered to prejudice the. State in her right to dispose of the land, or to hinder McCormick from obtaining a title for it in any mode prescribed by law. His conduct may well be likened to that of the dog in the manger’, not willing to purchase the land of the State himself, not yet let any body else have it.

The second error is, that the court below submitted to the jury, to be decided by them, whether due diligence had been used by the' plaintiff below, in the prosecution of his settlement; when as the plaintiffs in error' allege, there was no evidence of diligence. In Micle v. Lucas, 10 Serg. & Rawle, 294, 5, it was held by this court, that whether a right of preemption, founded on an improvement, was lost by laches, was a matter peculiarly proper for the jury to determine, where it depended upon a variety of facts. The late Chief Justice, who delivered the opinion of the cauri, says, “there are cases, where the facts have been so strong, that the court has thought itself justified in deciding laches, as matter of law. But it has been more commonly left to the jury.” And in Casby and Brown, 2 Bin. 124, where Brown, who was the plaintiff below, claimed by virtue of a settlement, but, after making sorno improvements, was prevented by the violence of the defendant, a younger settler, from continuing them; he laid by for more than seven years, without taking any measures to recover the possession, and without conlmencing his suit for that purpose; yet it was deci-r ded, that it ough'fj to be left to the jury to determine whether he had not relinquished his settlement.

Now in the p/esent case, I think it cannot be said, that thq facts are so strong as to justify the court in deciding, as a question of law, that.thére was a want of due diligence on the part of Me C'or-mick, in prosecuting the work of his intended settlement. The building of the house, which was perhaps the most essential part of what was to be done, in order to make a settlement upon the land, was commenced by him, and after having been raised up to the square, McMutrie, the plaintiff in error, collected a force, and threw it down; and in a manner to,o,most likely to intimidate or bid defiance to the utmost power of McCormick, but as it would seem, not so as to induce him to l’elinquish his claim to the land; for about a year afterwards, when McMutrie attempted to erect a house upon the land, and had got it partly up, McCormick sought an opportunity when McMutrie was absent, and threw it down:- and in abput (fight months after this, brought this, suit to establish his right, and i-d recover peaceably the possession of the land, if entitled to. it, that he might prosecute and finish his improvement.

From the daring and violent manner in which McCormick,. while at work on the house, was attacked *by McMutrie, and the whole of his work prostrated and torn down before his face, he had great reason to believe, that there would he little personal safety, for some time at least, in attempting to renew the work of building the house. He probably felt unwilling to embark immediately in an expensive and tedious law-suit, and was willing to wait some time, in hopes that a more favorable state'of feeling on the part of McMutrie, might take place towards him. I can see no good reason, why suoh a course might not have been taken, and a reasona-. ble time allowed for a return of such feelings as might possibly ter-' mínate the contest which had arisen, without going to law. In this. I can perceive no cause for blame: nor yet any thing that ought to, prejudice the claim of McCormick. Whether he liad not sufficient reason to delay as long as he did, without having ladies ora want of due diligence imputed to him, was properly left to the jury. A, man possessing less regard,perhaps, for the peace and good order of society, and possibly a little more personal prowess thaq McCor-t mick, placed in his situation, might have given McMutrie some reason to have complained of any thing but a want of due diligence. I must confess that the harshest name which I think could well he given to the conduct of McCormick, would be reasonable forbearance, whieh ought rather to make in favour than against him.

The third and last error is, that the court below did not instruct the jury as matter of law, that the plaintiff below could not support his ejectment under the evidence given in the cause. It has been decided repeatedly, that one who has a right of preemption to. lands, lying within the State, and east of the Allegheny river, and who, has his boundaries designated, may recover in an action of ejectment without a survey: see Luck and wife v. Duff, 6 Serg. & Rawle, 189, and Mickle and another v. Lucas, 10 Serg. & Rawle, 295.

It is also true, that an improvement, in order to be available in law, so as to give a preemption right to land, must be commenced with intent to make an immediate settlement, and prosecuted with due diligence till the settlement is completed, and if done so, the title so acquired, will relate hack to the commencement of the improvement. See Wright v. Small, 4 Yeates, 562.

The land in dispute was bounded and designated all around by the lines of official surveys made upon the adjacent land. These lines being marked upon the ground, and the respective courses and distances thereof being returned into the Surveyor General’s office, or to be found in the Deputy Surveyor’s office, furnished at once all the information necessary to be had, both in regard to location and quantity. They showed that the quantity of vacant land there was much less than what might have been acquired by settlement, had there been more of it; and no doubt the evidence was sufficient to justify the jury in finding that the plaintiff below had adopted and made these lines the boundaries of his claim.

In the next place, whether he commenced building the house upon the land in dispute, with intent to make an immediate settlement, and prosecuted this design with due diligence, were matters of fact to be decided by the jury. No body can deny that the building of the house was an important part of .the wo.rk. It was not necessary that he should use the materials which were upon the land, for this purpose. He was at liberty to obtain them wherever it might best suit his convenience to get them. And if the evidence be credited, he was certainly prosecuting the work with rather remarkable diligence and despatch, until he was arrested in his progress by the violent interference and prevention oí McMutrie. It was for the jury to decide whether McCormick would not, in all probability, from appearances, have completed his settlement with due diligence, had he not been prevented by McMutrie; and whether or not McMutrie did not prevent McCormick from finishing his settlement in such manner as is required by law, in qrder to secure tQ him a preemption right to the land; and if they were satisfied that all this would have been done by McCormick liad not McMutrie prevented him,we think that McCormick was entitled tq recover the land. The law will not permit McMutrie to take advantage of his own wrong, and to say, that because McCormick did not go on and complete his settlement with due diligence, therefore he shall not sustain his action of ejectment, or recover t|ie land. Nqthing can he objected by McMutrie, as being wanting to entitle McCormick to sustain his action, and to recqver the land in dispute, which has not been wrongfully caused by McMutrie himself. Nemo est dolo suoproprio relepetur, ciut auxilium capiat. It was also very prqper for the jury, |n considering the circumstances in evidence before them, and in drawing ttjeiy con-; elusions from them, nottq omit paying a due regard to the maxim: Ip, odium spoliatoris omniapraesumuntur.

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    THE UNITED STATES against SIMPSON
    A loss from indulgence by a creditqr to a principal, which is purely permissive, will not dischai-ge a surety. If the preeftor has disabled himself to proceed, the surety is ipso facto discharged: if he has not, no eventual loss from mere delay, will produce that effect.
    Hand-writing may be proved by one who has become familiar with it in a long correspondence with the writer, although he may never have seen him write,
    Error to Huntingdon county.
    In 1819 the United States obtained a judgment against John Patton and William Simpson his surety: — in Í822 a fi.fa. was issued upon it, which was not given to the sheriff, by order of the plaintiff’s attorney: there was no further proceeding until 1826, when a scire facias was issued against both defendants, for whom there was an appearance and plea of payment. Subsequently, in the same year, Patton confessed judgment; and issue was joined on the plea of payment, with Simpson. Upon the trial of this issue, the defendant gave in evidence the record of several judgments that had been obtained against Patton, between the time of tl)e rendition qf the judgment of the United States, and its revival in 1S26.; and which became thereby a lien upon his real estate, tq the exclusion of the United States’ judgment. There were also given in evidence t]ie following letters of S. Plesenlon, “Fifth Auditor and acting Commissioner of the Revenue,” tp James M’Dowell, Esq. the Attorney of the United Stales, having the charge of this judgment.
    Treasury Department, Fifth Auditor's Office,

      March 31, 1825.
    Sis. — I have received ypur letter pf the f 4th instant. As the indulgence already extended to Mr. Patton has been very liberal, J cannot consent tp any change in the terms stipulated in my letter of the 22nd ultimo, fqr the liquidation of the debt dup by him to the United States, viz. tha\ on the first pf November next, he shall pay three hundred dollars, with the interest that will be due on his bond qp to that date, four hundred eighteen dpllars, eighty-eight cents, and one hundred sixty-nine dollars thirty-four cents, for the addition of ten per cent, accruing on the amount of duties not bondpd, making together the sum of eight hundred and eighty eight-dollars, twenty-seven cents to b,e deposited, that day by him, and anqually thereafter an the first day of November, pgy three hundred dollars, with the interest due up tp that date.
    Treasury Department,

      Fifth Auditor's Office, February 17, 1826.
    Sir, — I have just received a joint letter of this date from the Hon. John Findlay and John Brown, requesting, for certain con-, siderations therein stated, a fqrther indulgence until the first of June next, to pay the first instalment of the debt due by him to the U. States, which vfas to have, been paid on the first of November, last. You will please to give this indulgence to Mr. Patton, and inform him it is given, in the full confidence, that he will at the expiration of the time be prompt in making the payment.
    The admission of these letters in evidence was objected to, on the ground that neither the official character, nor hand-writing of S. Plesenton was. proved-• A witness was then sworn, who testified that he had done business for the United States, and had corresponded with S. Plesenton the Fifth Auditor of the Treasury, had remitted money to him and received his receipts; had never seen him writing his name, but had no doubt but that the signatures were his. The court over-ruled the objections to the evidence, and sealed s, bill of exceptions at the request of the plaintiff. The negligence of the plaintiff, in suffering tfielien pf these judgments to be lost as against the estate of Patton the principal, and the indulgence given to him till he became insolvent, were relied upon by the defendant, in support of the issue, on his part. In answer to several points put by plaintiff’s counsel, the court instructed the jury in substance, that if they believed that Simpson was prejudiced by the negligence of the plaintiff and indulgence given to Patton, they should find for the defendant; and the jury did so find.

      Jl. P. Wilson and Bell, for plaintiff in error,
    Contended; that hand-writing can be proved only by one who has seen the person writing. Vickray v. S. Kelly, 14 Serg. fy Raiole, 372. Bank v. Jacobs, 1 Penn. Rep. 181.
    That the United Slates is not subject to any rule of law which is based upon the negligence of a party, and that no negligence or expiration of lien can be applied to their prejudice:- That there Was nothing in the letters of S. Plesenton Which would bind the United States, so as its prevent them from proceeding upon their judgment at any time, when they might have been requested so to’do by Simpson the surety. Mere indulgence to the principal will not discharge a surety, unless it be in disobedience of an express request of the surety. On this point were cited Cope v. Smith, S Serg. 4* Raiole, 112. Gardner v. Berree, 15 Serg. fy Rawle, SO. Commonwealth v. Shryock, ibid. 70.

      Blanchard S¡~ Porter, for defendant in error.
    The letters of S. Plesenton changed the nature of the contract; and if so, the court will not stop to enquire, whether the surety Was injured thereby or not. Bogart v. Nevins, 6 Serg. <§• Rawle, 371. Baldwin v. King, 5 Johns. Chan. 561. Barry v. Man-dell, 10 Johns. Rep. 595. Whart. Dig. 713, No. 25, Title Surety. Milliken v. Brown, 1 Rawle, 398. If the faith of the United States, as pledged by the letters given in evidence, was kept, the surety was ipso facto discharged. -There shall be no negotiation between the Creditor and the principal, which results in the injury of the surety, unless he be^discharged. Commissioners v. Ross, 3 Bin. 523. Commonwealth v. Shryock, 15 Serg. fy Rawle, 71 People v. Janson, 7 John Rep. 340.
   The opinon of the Court was delivered by

Gibson, C. J.

The rule is well settled, that mere forbearance, however prejudicial to the'surety. will not discharge him. It is his peculiar business to judge of the danger to be apprehended from delay, and to quicken the creditor, where the occasion requires it, in the way known to the law; in default of which, the loss incurred is necessarily to be attributed to his own supineness. Was there any thing beside forbearance here? A judgment is entered upon certain revenue bonds in 1819, on which there is no proceeding,but a still-born fieri facias till 1826, when the present scire facias is brought, anda general appearance entered for both défendants, one of whom (the principal) confesses judgment in person, on the 14th of August, in the same year. Previous to this, he has procured the assent of government, to an arrangement for payment of instalments; and on the 31st March, 1825, the Fifth Auditor df the Treasury* acting as Commissioner of the Revenue> and being further importuned for indulgence, instructs the attor^ ney of the United States tú admit of no change in the terms, but is induced on the 17th February following, to protract the time for payment of the first instalment: and this is the ground of the supposed equity. Now though an extention of the credit beyond the time mentioned in the contract, will undoubtedly discharge the surety, it is well established that a consent to forbear which does not tie up the creditor’s hands, will be attended with no such consequence, being in effect nothing more than forbearance in fact; and what was then to preclude the United States from proceeding at any moment here? The government made no agreement with any one, having merely acceded to an overture for indulgence on the score of humanity. Because the indulgence accorded was purely gratuitous; and even were the instructions of the Auditor evidence of a contract, it would be without eonsidei’ation. It is said the confession of judgment by the principal, was the consideration. That, however, was not stipulated as a condition, and it did not take place till six months afterwards. We have then a bare case of forbearance, at the instance of the principal, which in Todd v. Blair, decided by this court at Chambersburg, in 1827, was held to give the surety no equity. That case has not been reponed; but the facts were, that Todd was the bail of Irwin, in a recognizance to obtain the stay of execution allowed by law on a judgment obtained by Blair; who, to an application of Irwin for terms, answered thus: “I have spoken to Mr. Lyon (the attorney) not to urge the payment of the money now due me on the County docket by you and Mi-. Todd, before the first of September next, I have money to pay myself at that time, and can not give any further indulgence. I mention this to you, as you spoke to me a few days ago, to wait ten days or two weeks on you, and that you would make the money up without any more cost, which is certainly my wish.” And this being by sufferance, and Consequently nudum pactum, was held not to release the bail. Such then being the law of the case, it was error to submit to the jury, as an inquiry material to the merits, whether the jury had been prejudiced by the actual or supposed expiration of the creditor’s lien on the land of the principal, or by any other consequence of the creditor’s naked quiescence. In the Commissioners of Berks v. Ross, 3 Binney, 520, the surety was not discharged, though the creditor had waived his demand of special bail, in consequence of which the principal was enabled to flee to another state. That a loss from indulgence, which is purely permissive, will discharge a surety, is unsupported by authority, and in contradiction of the most obvious principles of justice; such a loss being fairly attributable to the surety’s own negligence, in omitting to warn the creditor to próceéd; without which he may not know that aloss is impending. Actual detriment is not the criterion, or a material ingredient. If the creditor has disabled himself, the surety is ipso facto discharged: if he has not, no eventual loss from mere delay, will produce that effect. In the case, therefore, as it appeared on the evidence, there was nothing to submit; and where the pretentions of a surety are put in contrast to a claim of the public, for whom no sympathy' is ever felt, it is indispensable to justice, that the jury be held strictly to the law and the evidence.

The objection to the admission of the letters is not sustained. The signature of the auditor was proved by one who had become familiar with it in a long correspondence with him; in addition to which the letters had been produced by the”attorney of the United States, to whom they were addressed, and we see no reason to doubt of the propriety of their admission.

Judgment reversed and a venire de novo awarded.


author: Ross J.

text:
    CLARK against WALLACE.
    A defendant against whom an aw'ard of arbitrators had been made, applied to the Prothonotary, on the twentieth day, after night, and after the office was shut, to enter an appeal; the Prothonotary having then refused to g-o to his office, at the next court, a motion was made for an order, that an appeal might be then entered nuncprotunc, which the court refused: held tobe erroneous.
    Error to the Common Pleas of Huntingdon county.
    The facts of this case arefully stated in the opinion of his Honor, who delivered that of the court.

      Blanchard, for plaintiff in error,
    cited 1 Serg. <5* Rawle, 412

      R. Wallace and Rotter, for defendant in error,
    cited Jacobs's Law Big. Title “Bay.” 3 Stark. 1406. 2 Con. Rep. 69. Whart. Big. Title “Bay and date.”

   The opinion of the Court was delivered by

Ross J.

The case was originally an appeal, entered in the court of Common Pleas of Huntingdon county, from the judgment of a justice of the peace. It was afterwards arbitrated under the compulsory arbitration law, and a report made by the arbitrators, on the 15th of October, 1831, in favour of the plaintiff, for eighty-six dollars, and fifty cents. This award was filed in the Prothonotary’s office of said county, on the 18th of October, 1831. A motion was made by the attorney for the defendants at November Term, 1831, on the 14th day of that month, to allow them to enter an appeal from the award of arbitrators. On the 19th day of November affidavits were filed, and on argument the motion was overruled by the court. The defendants predicated their motion upon the matters stated in the affidavits: the substance of which was, that the defendant Nevin, went in company with several persons to the Prothonotary’s office on Monday evening the 7th of Nov. 1831, for the purpose of paying the costs and entering into a recognizance and appealing from the award of arbitrators. He had been informed by the Prothonotary a few days previous, that an appeal might be entered on the evening of the 7th; and had accordingly called at the office between the hours of half past five and six o’clock, P. M. of that day; but did not find the Prothonotary in the office. Pie then went to tbe dwelling house of the Prothonotary, and was informed that hehad left the house a few minutes before. In about fifteen or twenty minutes, the defendant again went to the house and was again told that he was not at home; and that he had requested them to inform any person who might call on business, that he would be at home about eight o’clock, P. M. It was then about six o’clock. Thedefendant afterwards met the Prothonotary near his office, and told him that he had come prepared with his surety to enter an appeal. The Prothonotary replied that it was rather late, and upon being told that the defendant had been twice both at the house and office, and that it was the last day on which the law would allow an appeal to be entered, after some hesitation, stated that he could not or would not go to his office. This conversation took place, according to the deposition of Mr. Nevin, at twenty minutes past seven o’clock; and according to the deposition of Clark about eight o’clock. It was also proved that business had been frequently transacted with the Prothonotary after night, in his official capacity.

On the part of the plaintiff, it was proved by the Prothonotary and his clerk, that they were constantly engaged in their office during the whole of Monday, the 7th of November, until it became too dark to write; andthat-they then closed the office and returned to their dwelling. After he had supped, the Prothonotary walked up street: it being then completely dark. During all this time, no application was made by any person for an appeal. On his return towards home, he was met by a Mr. Nevin and another person with whom he was unacquainted. Mr. Nevin said that he wished to enter an appeal; and upon beingtold, that it was then eight o’clock, he replied that he supposed it was that late. The Prothonotary then informed him, that he would not open his office at that time of night to do a judicial act.' It was further proved, that the defendant M. J. Ciarle, was seen frequently during the day, walking by the Prothonotary’s office. The clerk in his deposition, stated, that after he had taken his supper, he walked out through the town, and returned in less than half an hour to the dwelling house of the Prothonotary, and remained there until near eight o’clock. He had no knowledge of an.y application having been made for an appeal during that evening.

I have been thus particular to give a full view of the evidence upon which this motion was predicated, in order that the question which has been raised, may clearly appear, and not be misunderstood. The second error assigned, does not fairly arise from the facts disclosed, and the court cannot be called upon to say, whether or not the appellant has until twelve o’clock of the evening of the twentieth day to enter his appeal. No general rule can be made, or will be laid down at present, upon the subject. Each case should be determined according to the particular circumstances attending it. Where fair and reasonable efforts shall appear to have been made by the party desiring to appeal; and he is prevented in consequence either of the negligence, or of the mistaken notions of the officer, as to his own official right, or the rights of the appellant, the court will, if application, be made at the earliest opportunity, direct the appeal to be entered, this they are bound to do; because the trial by jury must be favored, and if possible, preserved to all suitors; it being a great constitutional right never to be wantonly taken away or destroyed, either by the legislature or the court. The legislature has shrunk in the time of the highest excitement, from every attempt to violate the constitution in this respect. In this case it was proved, that the- appellants called at the Prothonotary’s office, for the purpose of entering the appeal- about half past five ©.’clock, and that the office being found closed, they sought for him until nearly eight o’clock, when they met him, and he declined going .to his office, and refused to enter the appeal-. Under- these circumstances, there was certainly nothing unreasonable in the application. The time in the evening was not a sufficient excuse for the refusal; the consequence of which was the depriving him of the right to appeal. The Prothonotary had previously transacted business in his office after night, and he had, moreover, informed Mr. Nevin, that the appeal could be taken in the evening of that day-. It was, therefore, clearly the duty of'the Prothonotary to have entered it;, and when he refused to do so, it was the duty of the court, from the-evidence laid before them, to have ordered the appeal to be entered at the time of the application nunc pro tunc. In this state, offices, are created for the benefit of the people and not for the benefit of the-individuals who are appointed to perform their duties. The court of Common Pleas erred in not directing the-appeal to be entered nxmepro tunc, and this Court now directs the said appeal to be so entered.


author: Per Curiam.

text:
    TODD against M’CULLOCH
    Á fieri facias levied upon land, will not prolong the lien of the judgment upon other land, beyond the period of five ycarsl ' ' • "
    Error to, the Co,m,tt\o,q Pleas pf Mifflin county.
    This was a feigned issue in which Thomas Todd, administrator of Thomas Beale, deceased, was plaintiff; and George M’ Cxdloch was defendant, directed by the Court of Common Pleas, tp try the right to the proceeds of the sale of the real estate’ of Robert Burns, which was so,Id by the sheriff pf Mifflin co.unty.
    The material facts which gave rise to, the question of law argued, were these: Robert Burns being the owner of land in Fermanali township and also of other lands in Wayne township, judgments were, obtained against him in 1819 by the Huntingdon Bank and by Broipn and Dixon- Writs of fieri facias were issued upon thesejudgments in 1819, which were levied qpon the land in Fermanah township, upon which there was a mortgage. In 1S22, this land was spld by the Sheriff and the proceeds, applied to the, payment of the mortgage. In 1826, writs of scire fiadas were issued to revive thesejudgments, upo.n which, judgments, were obtained in 1829: — upon these two judgments the defendant claimed the money. In 1826, Thomas Beale, the plaintiffs intestate obtained a judgment against Robert Burns, upon which & fierifacias issued, which was levied upon the lands in Wayne township; and they were subsequently gold in 1827, and the proceeds brought into qourt for appropriation. This money each pf the parties to this issue claimed: and the question which was presented to the. cp.urt, was, whether the issuing of the writs of fieri facias upon the judgments of the Huntingdon Bank and Brown and Dixon, and thelevies made upon the land in Ferynanah township, would preserve the lien of those judgments upon the lands in Wayne township. The courtbelpw, was of opinion that it would, and so instructed the jury, whp accordingly, found for the. defendant.
    The same question was argued here.

      J. Fisher, for plaintiff in error,
    whom the co.urt declined to hear.

      Ruling for. defendant in error,
    argued, that the decision of the court below was fully supported by the case of- Pennock, v. M’Kissin, 13 Serg. and JRawle, 148; and the case of Betz’s Appeal, I Penn’a. Rep. 271, did not militate against the principle there established: for in the latter case, the levy was on personal property, which fact characterized that case, and it was ruled upon the’presumption of satisfaction: That in the case before the court, there was no room fop siich a presumption, nor was it alleged, That the requisitions of thp act, requiring a scire facias to issue, were for the protection qf purchasers: this is a contest between judgment creditors. .
   Per Curiam.

This cause was tried before the determination of Betz’s Appeal, 1 Penn, Rep. 271 by which it seems to have heen established, substantially if no.t in terms, that the lien of a judgment is preserved by an execution, only as regards the land leyied. Lands are chattels for payment of debts; and the lien by which they are tp be bound for more than the fiye years without a scire facias, seems to be that which the common law attributes to fin exfecutiqn rather than the lien of the judgment. At all events, it was there determined, that a levy of goods will not prolong the lien qs to Iqnd; and an the same principle a levy of ojher land can jxave no greater effect than the levy of any other chattel. The decision of the court belpw, is therefore not supported.

Judgment peyersed and a venire do. novo awarded,


text:
    SHAW against THE TURNPIKE.
    IF a party to a contract he delinquent in the advancement of funds, the other party may tajee advantage of the omission, by declaring the contract at an end: but if he treatyfhe contractas still subsisting, he thereby waives the consequences, of such - default, and he cannot afterwards'avail himself of such delinquency'to recover a quantum mprujit for work done, in pursuance of a contract under seal.
    Appeal from the Circuit Court of Mifflin county held by Justice Rogers.

    In tjxis case William, Shaw was. plaintiff, and The Lewistoym <§“ Kishacoquillas Turnpike Road Company was defendant. The facts were the samp as those giyen in evidence, on a former- trial, and which are fully stated in the former report o,f the same case in 2 Penn. Rep. 454. The plaintiff’s right to recover was founded upon the following points, both of which his Honor qnswered in the negative:
    1. The court are requested, to, charge the jury, that the failure of making the side roads, does npt prevent the plqintifffrom maintaining this suit, but whatevep may be the costs' of- making the side roads is a proper subject for the, jury to defalk in damages.
    2. That the testimony of Mr. McClay as to, the conduct of-himself and managers, relative to the side roads, is q matter of fact to be left to the jury, to say whether this is not a waiver of that part of the contract, or an implied agreement that whatever the cost of the side roads would be, should be defalked in the final settlement of the accounts.
    Blanchard, for appellant.

      Potter, for appellee.
   The opinion of the Court was delivered by

Gibson, C. J.

The principles of this cause were pretty fully-developed on a former occasion, when it was determined, that there could not be a recovery on the original contract; and it is therefore necessary to notice but the new ground taken at the trial. The plaintiff went for a compensation for work and labor done, on a supposition that the special contract, which is admitted not to have been fulfilled on his part, had been rescinded by the acts of the defendant; and for this he relies on the facts that the company had not advanced the funds necessary to have enabled him to perform his engagement: and had besides erected toll gates while the summer road remained to be made. The exaction of tolls unauthorized by law, was a matter of which the public, and not the plaintiff, had a right to complain, unless indeed the occupancy of the finished part of the road had rendered the completion of the rest more difficult, which is not pretended. There is not a particle of evidence that he objected to it. Then if the Company had put it in his power to dispense with the contract by reason of delinquency in theadr vancement of funds, it was his business either to take advantage of the omission by declaring the contract at an end, or to waive the consequences of the default by treating it as still subsisting. He chose to do the latter; and though it appeared the work had languished for want of the requisite advancements, he continued his services without any intimation of their being rendered cm new and implied terms. That he considered the original contract as a subsisting one, appears from his having counted on it; and his attempt to recover a quantum meruit, is evidently the result of an afterthought, The very work for which he demands compensation was done on the foot of that contract. Would he have been permitted to go on, had he informed the Company that he was working under no contract but what the law might imply? Most probably he would not; and it is now too late to apprize it for the first tiipe, that the terms had been changed. He might, perhap.s.,. even now, avail himself of a final refusal of the Company to, fulfil the contract; but when the action was brought, there had, been, no repugnance to pay the last farthing, provided the work were completed, and an offer to that effect has been repeated both here and at the trial. It would, in these circumstances, b,e as unjust as it is illegal', to suffer a contractor to recover for performance of perhaps the mpkt lucrative part of the job and leave the residue on his employer’s hands. As to the allegation that the facts were withdrawn from the jury,it is sufficient that the plaintiff took a non-suit on hearing the opinion of the judge, and he it was who withdrew the cause. Though the recision of the contract was-a question of fact, there was in reality- no evidence to support the affirmative of it, and nothing to be submitted; so that had there been a verdict for the plaintiff, it must necessarily have been' set aside. In a cause like the present, a pointed expression of opinion was, for reasons which it is unnecessary to name, peculiarly proper; and it seems to me the remarks of the judge were by no means too strong. The non-suit is therefore not to be taken off.

Judgment affirmed.


text:
    LIGHTY against SHORB.

      Caveat empier is maxim which enters into every purchase where the contrary is not stipulated; and equity can not relieve against it anymore than it can against the terms of a bargain.
    A contract for the sale of land is considered to be in fieri, while it remains unexecuted by a conveyance, (the final accomplishment and consummation of all previous stipulations;) after which the purchase money may not be detained or recovered, back, but by forcé of a covenant or fraud, for any incumbrance or defect of title whatever. But if an incumbrance be discovered before the execution of the conveyance, it must be discharged by the vendor, whether there be an agreement to covenant against it or not, unless it be contingent; and then if it be agreed in the articles, that the vendor shall covenant against it, the vendee having reserved that. particular remedy, shall not resort to the additional one of detaining the purchase - money; but if actually evicted, he.may detain or recover it back, though the intended covenants would not have extended to the particular incumbrance or defect by which the eviction was occasioned.
    Where there is a known defect in title, but no covenant or fraud, the vendee can avail himself of nothing: but where there is a covenant against a known defect, he shall not detain the purchase money, unless the covenant has been broken.
    Writ of Error to the Common Pleas of Centre county.
    This action was brought by William Lighty for the use of George B. Engles against Anthony Shorb. The plaintiff, to support his action, gave in evidence the following draft:

      Penn’a. Furnace, July 8, 1830. Barnet and Shorb, Pittsburg,

    Please to pay Wm. Lighty, seven hundred and fifty-eight dollars, on the first of August, for a tract of land purchased from him. @758. A. Shorb.

      On the 21 July, Í830, Ji. Shorb gave notice to William Lighlj/ that the draft wo’Uld not be paid.
    The defendant; to suppo'rt the issue; on the plea of payment with leave, <§-c. offered in evidence án agreement between William Lighty and Barñctz and Shorb; to' the reading of which; the plaintiff objected, on the ground; that it was consummated by the execution and delivery df a deed. / The objection VtaS over-rüíéd, and the agreement íeád as folldwsí '
    “Article of agreement; made' and concluded; the 8th day of April, A. D. 1830, betweeri William Lighty, of Patton township, Centre codnty, and State of Pennsylvania, of the one part, and Barnetz and Shorb of the other part, as follows to wit: The said Lighty, for and in consideration hereafter mentioned, has sold all that certain tract of land, surveyed under the name of William Lambóurn, lying and being in Half-moon township, Centre county, adjoining, lands of Henry Yoder and others, Containing about four hundred acres, more or le'ss, with allowance; he is to make a good and clear title, clear of all incumbrances whatever, with a general warranty unto them, on or before the first of August next, or at any time required: immediate possession is tobe given, and no further timber-to be cut, by any person buying under Lighty whatever, except ten trees by himself, on the corner next to Yoder's for sills. For' and in consideration of two dollars an acre', whatever it may contain, With the allowance, given in the following manner: fifty dollars by signing the article, and the balance on the 1st day of August next, by a,draft on Pittsburg, on Barnetz and Shorb at sight or on that day. In testimony whereof, &c.”
    The defendant then gave in evidence apatentof 14thApfiI, 1808, for the land mentioned in the agreement, to Job Packer and Hannah his wife; in which there was this recital “which said tract was surveyed in pursuance of a warrant, dated 24th Sept. 1792, to William Lambourn, who died intestate, leaving one daughter, as his only legal issue, named Hannah, who intermarried with the said Job Packer." After the granting of this patent Hannah Packer died leaving issue nine children. On the 8th December, 1820, Job Packer conveyed a moiety of this tract of land to Isaac Cou,den and wife, (a daughter of Job's) and another moiety to John Row and wife (.another daughter.) November 17, 1821, Isaac Coudon, and wife conveyed to Wm. Lighty, and on the 32nd February, 1823, JohnRow and wife, conveyed to Wm. Lighty also. On the 11th Sept. 1823, Job Packer executed and delivered to Wm. Lighty a bond in tbe penalty of one thousand and fiftyty fivé dollars, conditioned, that he would warrant and defend the title to the said land. On the 22nd June, 1830, William Lighty
      executed a deed to Bar nit z and Shorb, for the land; containing a covenant of general warranty, which, together with the patent and the above mentioned deeds and “title bonds,” were all delivered to Barnitz and Shorb, on the day of the date of the draft, upon which the suit is brought. On the trial of the causa, the plaintiff offered to repay to the defendant fifty dollars, which he had received on the contract, with its interest, give up the draft upon which the suit was brought, and take a reconveyance of the land. The defendant refused this, but offered to pay the amount of the draft, upon being made secure in his title.
    The counsel for the plaintiff -requested the court to charge the jury — -
    1. If they find the facts to be, that «/£. Shorb, when he accepted the title papers, bond of Job Packer, and deed of William Eighty and wife, knew of the situation of the title, and accepted of the personal security for the same, he will in law be compelled to pay the money.
    2 If the parties were aware of the defect of title, when the deed was accepted and the draft given, and provided for it by the covenant of warranty and Job Packer’s bond, then the defect of title is no defence to the recovery of the money.
    3. That the acceptance of the deed of Lighty, with the covenant of general warranty and the title papers, area merger of the covenants in the article of agreement.
    4. That the recital in the patent, being the title through which the land was conveyed to Shorb, is of itself prima facie evidence that he knew the defect of title, when he accepted the deeds, title papers, and bond of Job Packer.

    5 That the plaintiff ought to accept the offer of Dr. Engles, and -reconvey the land, or he is bound to pay for it.
    The Court answered 1. — It is true, that a person may purchase at his owq risk, and may accept an imperfect title, and if he does so knowiyigly, he will be bound. But in the case before us, there is nothjhg to shew beyond the papers, that the defendant knew of the situation of the title; besides, the deed of general warranty is totally inconsistent with the acceptance of an imperfect title. We cannot instruct you as required.
    2. The acceptance of the deed is a merger of the covenants in the articles of agreement. But this does not help the plaintiff in the cause before us.
    3. The defendant has a right to set up the defect of title, at any time before he has paid his money, under the facts disclosed in this case. There is no fact, that we can discover, to take it out of the well settled principles in Stinehauer and Whitman, Hart and Porter, and Custer v. Reynolds, and many other .solenur deci^ sions of the Supreme Court. There is no evidence that we can discover except the recital in the patent, and the written evidence, to show that he did know of the defect. But if he even did know of it, and was bound to know of it, we think he may set it up as a defence. If there was clear and demonstrative evidence of an express agreement, to take the bond of Packer, and to accept that, it might be otherwise; but it would be most strange to infer it from the evidence in the cause, when it is inconsistent with the covenant in the deed.

      ]_8unbury, SUPREME COURT Light}' v. Shorb.
    4. The plaintiff is not bound to accept the offer of Dr. Engles.

      5. The recital in a patent is to effect persons claiming under and through that patent. But if he even did know (which we do not believe) of the defect of title, still under his deed of warranty and the facts disclosed, he can set up this defect of title against the payment of the purchase money. The. points so ingeniously put, are not well warranted by'the facts in the cause. There is nothing in the judgment of the court, in this case, to take it out of the well settled principle, that equity will stop payment when there is want of consideration.
    We have said the plaintiff is not entitled to recover beyond the two ninths part, for which they have shown title.
    This charge of the court was assigned for error.

      Potter, for plaintiff in error.

      Blanchard, for defendant in error.
   The opinion of the court was delivered by

Gibson, C. J.

Caveat emptor is a maxim which enters into every purchase, where the contrary is not stipulated; and equity cannot relieve against it, because it cannot relieve against the common law or the terms of a bargain. The contract, however, is considered to be in fieri while it remains unexecuted by a conveyance, the final.accomplishment and consummation of all previous stipulations; after which, the purchase money may not be detained, according to the English law, or recovered back, but by force of a'covenant or fraud, for any incumbrance or defect of title whatever. On the other hand, an incumbrance, discovered before the execution of the conveyance, must be discharged by the vendor, whether there be an agreement to covenant against it or not, unless it be contingent, and then if it be agreed in the articles that the vendor shall covenant against it, the vendee having reserved that particular remedy, shall not resort to the additional one of detaining the purchase money ; but if actually evicted, he may detain or recover it back, though the intended covenants would not have extended to the particular incumbrance or defect by which the eviction was occasioned. This is the English law, according to which the criterion of the right to equitable interference, is, incontestably, the execution of the conveyance; for it seems pretty clear, that the anonymous case in 2 Ch. ca. 19, in which the purchaser is said to have been relieved, on the foot of an eviction, after the conveyance was executed, is not entitled to a moment’s consideration. Not only is the authenticity of the report questionable, as not having been taken by the reporter himself, but the principle of the case has been repudiated by every writer since, and there is little doubt that it would be promptly overruled were the point again presented for decision in that country. Yet that is the only case in the books which serves to give colour to the doctrine; for the decision in Tourville v. Naish, 3 P. Wms. 307, as well as the dictum, in 2 Freem. 106, had evidently no relation to the case of a conveyance executed. This criterion seems, however, to have no place in our law, as regards detention: though it undoubtedly has, as regards recovery back. Steinhauer v. Witman, 1 Serg. & Rawle, 483, and Hart v. Porter, 5 Serg. & Rawle, 201, were both cases of detention, after the acceptance of a conveyance: while Dorsey v. Jackman, 1 Serg. & Rawle, 42, was a case where recovery back, in the like circumstances, was denied. In the first of these, cases, a faint effort was made by the Chief Justice, to found our practice on English authority, but in the second, he admitted that he came into the support of it with extreme reluctance; while Mr. Justice Yeates put it on the only ground capable of sustaining it — long and uninterrupted usage. It is úseless now to inquire into its origin or .effect, with a view to change or abolish it, as it has become too firmly fixed for that;.but it seems proper to remark, that it produces here, where lands are sold on long credits; very nearly the same inconvenience as would be produced by a recovery back elsewhere; which, it has been said, would be a serious one, “as every contract, however bounded or guarded in its terms, would be liable to be opened at any distance of time. ” I Fonb. B. 1 ch. v. § 8, note g. In fact there is no distinction in principle between them; and one-is at a loss for the reason of Mr. Justice Yeates’ alacrity in recognizing the principle of Bree v. Holbeck, Doug. 654, by which purchase money paid, may not be recovered back; and his hearty concurrence, at the same time, in the propriety of detaining it, when but secured. But the greatest practical evil of the doctrine is, that it subjects the contract to the control of a jury, prone to forget, that to cut a man loose-from his bargain for motives of humanity, is the rankest injustice;, and for this, it would seem sound policy to extend it no further than it has already been carried. . That it may be qualified by circumstances, was directly affirmed in Hart v. Porter, in Which it was-said, that where a purchaser knows of a defect or incumbrance ,at the time of the bargain, without stipulating for a covenant or other security against it, he necessarily consents to take the risk of it on-himself^ Ait intendment to that effect, is consistent not only with the reality of the transaction, but with the analogous principle of Vane v. Lord Barnard, Gilb. Eq. Rep. 6, in which the purchaser, having taken an agreement for a special covenant against a contingency that might never happen, was not allowed to detain the purchase money as an additional security, because his consent to Rely on the covenant alone, was thought to. be deducible from the very nature of’the transaction. Is not his consent to bear a risk known to him at the time, and not provided against, equally deducible from the nature, of the transaction? Not only every scriviner but every purchaser, is aware of the value of a covenant, when a defect is. known Q'r suspected-. But it seems‘to be the. fact of knowledge, and not the omission or the exaction of a covenant, that is the moro, material, consideration. Wherethe purchaser is aware o£aflaw;and.provides not against it, he takes the risk of it on himself; and where he does so provide, he. is referred to the legal effect of his security, as in Furhman v. Loudon, 13 Serg. Rawle, 386, which was in principle the present case, unless the event covenanted against, has happened in the meantime, and then he is allowed to retain what would'be immediately recoverable back, and this, to prevent circuity; as was done in Christy v. Reynolds, 16 Serg. & Rawle, 258. There the warranty was special, b.ul. broken by actual eviction, under the title of the vendor; consequently the money might have been recovered back the next instant; and the. case, therefore, did notxequire a principle so broad, as the one applied to it, which, in the case of a known defect, is to be taken with this limitation, that the contingency guarded against, has happened. Poke v. Kelly, 13 Serg. & Rawle, 165, which was. the case of.a known incumbrance, warranted against, and paid off by compulsion, falls short of the principle in its extreme breadth, when asserted in such a case, without reference to an actual breach of the covenant; and this qualification is actually consistent with the position assumed by my brother Huston in delivering the opinion of the Court iff Christy v. Reynolds. But I am unable to concur in a dictum, in that case, that the English law of vendors is inapplicable to this country. Hów different soever may be the English system of-conveyancing as regards form, the principles, of the contract of sale are the same every where, as regards the justice and merits of-the transaction; to. give effect tó which, the conveyance is but an instrument, and its. form a subordinate consideration. The result of our own cages, then, seems' to be this. Where there was a known defect, hut no, covenant or fraud, the vendee can avail himself of nothing, being, presumed to have been compensated for the risk in the collateral ad-' vantages of the bargain. But where there is in fact a covenant against a known defect, he shall not detain the purchase money, unless the covenant has been broken: in other words, he shall bn. bound to perform his engagement, wherever his knowledge and the state of the facts continue to be the same they were at the time of the conveyance. What remains, then, is to apply this principle to the case before us. A recital in the patent gave notice, that the ownership of the land was in the wife of the patentee, who, after her death, conveyed it to two of his daughters and their husbands, who, in turn, conveyed tq Lighty, the endorser of the plaintiff, giving him the bond of the patentee as a security for the title; and this bond was handed over to Barnitz and Shorb when Lighty conve}’ed tq them. It is impossible, after that, to doubt of their having had, not merely constructive, but actual notice of the defect in the title, and of theye having been a mutual understanding, that the purchase money should not be detained as a security for it. The mercantile character, too, of the security given for the purchase money — a draft of one of the partner venders on thé firm, at twenty-two days— sufficiently attests, that nothing — but punctual and prompt payment was considered to stand with the contract. The vendees have not heen evicted, nor has the vendor broken his warranty; and yet without any intermediate change of circumstances for a pretext, the vendees refuse to pay at the time stipulated for it, with full knowledge of the facts, or even to restore the vendor to his possession; so that, unless he happens to be in a condition to do more than he covenanted to do, by purchasing the adverse claim, and presently making an indefeasible title, he is to lose his land and the price of it, while the vendees are cutting off the timber for their iron works, without having paid, or intending to pay, any one a shilling. Such a purchase might readily be mistaken for a trick to get into possession. Under the circumstances here, every principle of law and justice, entitled the plaintiff to a verdict.

Judgment reversed, and a venire de novo awarded.


text:
    BENNER against EVANS.
    In an action of dower, unde nihil habet, the jury found a verdict, in general terms, for the demandant; upon which the court rendered a judgment, and awarded a writ of inquiry; in which a writ of seizin and of inquiry of damages were blended. Hy the return of the inquisition, it appeared that the husband had been seized in lee simple of the land, but did not die so seized; and the writ of seizin was not executed, but the inquest found, that the land, at the time of the alienation by the husband, was of the annual value of seventy eight dollars; and that the demandant had sustained damages from the issuing of her writ, to the value of thirty-seven dollars, and for her costs, six cents. The court set aside the inquisition as to the damages and costs, but entered judgment for the demandant, that she recover according to her writ of seizin and inquiry, the one third of seventy-eight dollars annually as found by the inquest. This was held, to be erroneous. The Sheriff should have delivered to the demandant seizen of one third oftheland, and laid it off by metes and bounds. The finding of the annual value, ip a, case where the husband does not die seized, is illegal; nor can the demandant in such c^ses recover costs.
    Error to the Common Pleas of Centre county.
    This cause, an action of dower, in which Betty Evans, .widow of Thomas Evans, was plaintiff below, and Philip Benner, defendant, was submitted by the counsel, Potter, for plaintiff in er-. ror, and Petrikin for defendant in error, without argument. The facts are fully stated by Justice Kennedy, who. delivered the opin-. ion of the court.
   The opinion of the court was delivered by

Kennedy, J.

This was a writ of dower unde nihil habet, sued out of the court of Common Pleas of Centre county, by the defendant in error, against the plaintiff in error: to recover her dower in a tract of land situated and lying in Spring township pa Centre county, containing between three and four hundred acres. The original writ and declaration are in the usual and approved forms. The defendant below pleaded ne ungues’seisie gue dower and ne ungues accouple en loyal matrimonie; to which the proper replications were put in hy the demandant, and issue joined.

The jury found a verdict in general terms for the demandant* without saying any thing more, upon which the court rendered a judgment. The nature of this judgment was, that the demand-ant recover against the said Philip Bénner, her seizin of the one third of the said tract of land with the appurtenances, to beheld by her in severalty, hy metes and bounds, and the said Philip Benner in mercy, ^c. The jury having found in favor of the demandant, ought also to have inquired and ascertained, whether her husband died seized of the land or not; and if they had found that he died seized, then to have found of what esiatc, the time of his death, the annual worth or value of the land, in all issues, acJ cording to their true value beyond reprises, to have assessed the damages of the demandant on occasion of the detention of her dower, over and above the value, as also over and above her costs. See 3 Chitt.pl. 603, et seq. Dennis v. Dennis, 2 Saund. 331-2. Ib. 44e [45] note. Co. Lit. 33. But having found merely that he was seized, and omitted the rest, it was competent for the court below to supply this omission, by awarding a writ of inquiry. See 2 Saund. 44e [45] note, and the authorities there cited: and to blend the writs of seizin and of inquiry of damages together in the same writ, as was actually done in this case. See 2 Saund. 45, note, where the form of this writ is given and 3 Chitty Pl. 607.

To the writ of seizin and inquiry of damages issued in this case, the sheriff, to whom it was directed, has made no return of his having delivered to the demandant seizin of one third of the tract of land with its appurtenances therein mentioned, to be held by her in severalty by metes and bounds, as he was thereby expressly commanded to do. He has merely made a return of the inquisition taken hy him, from which it appears that that part of the writ directing the giving of seizin, was not attended to or executed by him. By the inquisition which he has returned, it is found, that the late husband of the demandant was seized of the land in fee simple, but that he did not die seized of it; and that the land with the appurtenances, at the time of the alienation of it by the husband, were of the clear yearly value of seventy-eight dollars, beyond reprises; and that the demandant had sustained damages, by reason of the detention of her dower, from the date of issuing her original writ, and commencing her action, to the value of thirty-seven dollars and forty eight cents: and for her costs and charges assessed, six cents. The court below, upon exceptions filed to the inquisition and return of the sheriff, set aside the inquisition as to the damages and the costs, but entered judgment in favor of the demandant, “that she recover according to her writ of inquiry and seizin, the one third of the seventy-eight dollars annually, as found by the inquest.”

It has been assigned for error, that the sheriff did not deliver to the demandant seizin of one third of the land with the appurtenances, to be held by her in severalty by metes and bounds, as by the writ he was commanded; and that the court below rendered a judgment upon the inquisition returned against the plaintiff in error, that he pay to the demandant annually one third of seventy-eight dollars, the value of the land at the time of alienation thereof by the husband.

It is manifest from the return of the sheriff to the writ of seizin and inquiry of damages, that he altogether mistook the nature of the duty imposed, upon him by it. He seems to have lost sight of that part of the writ, whioh inquired him to give to the demandant seizin of one third of the land, and tolayitoffby metes and bounds from the rest of the tract. Without this, there could be no execution of that part of the writ. By the inquest, he has gone on, after finding that the husband of the demandant was seized of a fee aim-pie estate in the land, but had aliened the same during his life, and therefore did not die seized, to report the annual Value of the land beyond reprises, at the time of alienation, tobe Seventy-eight dollars, and to assess damages and costs over and above the value. Now as the inquest found that the husband did not die seized, the demandant had no right whatever to recover, under the statute of Merton 20, Hen. 3, c. 1, the one third of the annual value of the land, damages for the detention, nor yet costs, because costs are only given by the statute of Glocester, 6 Fdw. 1 c. 1. where damages are recoverable, see 2 Saund. 44e [45] note the court below were therefore perfectly right in setting asside the assessment of damages and costs; and ought to have set asside the report of the annual value of the land, or at least to have disregarded it; but instead of doing that, they have made it the basis of a judgment, which they have rendered against the plaintiff in error, that he shall pay annually to the demandant, the one third of that value. If the inquest had no power or authority by law to inquire into and report the annual value of the land to the court, it would of course follow, that the court could not make it the foundation of a judgment against the plaintiff in error. Now it is only when the husband died seized of the land, that a judgment for money can be given in a writ of dower, unde nihil habet, against the defendant. If he did not die seized, then the demandant is only entitled to recover one third of the land itself, according to its value at the time of the alienation by the husband, to be held in severalty, and to be laid off to her by metes and bounds; and for this, and notany thing else, can she have a judgment. This doctrine is well and clearly set forth by Serjeant Williams in his note, and the authorities there referred to by him. 2 Saund. 44, et seq. as also by the decisions of this court. Sharp v. Petit, 3 Yeates, 33. 4 Dal. 212. Thompson v. Morrow, 5 Serg. & Rawle, 289. Barnet v. Barnet, 15 Serg. & Rawle, 72, and Lineweaver v. Stoever 17 Serg. & Rawle 297. The final judgment of the court below against the plaintiff in error, to pay to the demandant one third of the sixty-eight dollars, annually, was clearly wrong. The sheriff upon receiving, the writ of seizin and inquiry, ought, after giving notice to the demandant and the defendant below, of the time when he would execute it, to have organized an inquest of twelve men at that time, upon the premises, and by them to have inquired af what estate the husband was seized, and whether or not he died seized; and if they had found, as they did, that he had aliened the land and did not die seized, then the sheriff, by the inquest, ought to have proceeded to have set off by metes and bounds as much of the land in its then improved state, if any improvements had been made upon it addingto its value, after the alienation,as would have been equal in value to one third of the whole land without such improvements; but if it had been, that no improvements were made subsequently to the time of the alienation by the husband, then to have laid off one third of the land by metes and bounds, according to its value at that time, and to have delivered seizin of it to the demandant. This being done by the sheriff, he had no further duty to perform, but to make return of what he had done in this behalf to the court. This would have been endow • ing the widow, according to the principles laid down in the case of Thompson v. Morrow, 5 Serg. & Rawle, 289, which are most powerfully supported by the reasoning of the late Chief Justice. It would have been competent for either party, upon the return of the execution of the writ by the sheriff, if there had been any misconduct upon his part or that of the inquest, or misapprehension of the law as it appertained to the execution of the writ, or in ascertaining the value of the land, which was to guide and direct them in laying off the widow’s third of it, to have applied to the court below, who could have inquired into the matter of fact which might have been alleged, and whose duty it would have been to have granted such relief as might have been necessary to have secured a faithful execution of the writ of seizin upon legal principles: but matters alleged as ground of complaint and error, which are de horrS the record, cannot be inquired into by this court upon writ of error.

The order of the court below setting aside the inquisition as to damages and costs is affirmed; but its judgment that the defendant below recover one third of the seventy-eight dollars annually, as found by the inquest is reversed, and the inquisition set aside in toto, and the record remitted, that the court below may award a mew writ of seizin, if demanded, upon the judgment of the same court rendered upon the verdict.


text:
    ARMSTRONG against BOYD, et als.

    A conveyance of land described as a tract surveyed to a particular person, passes all within the bounds of the survey; such a description is as operative to define the . subject of the grant, as if the courses and distances were included in the deed; and' such deed will vest a good title to the land within the said survey, although the grantor may have had a better title to the land than that described, of which he was ignorant at the time.
    The common ignorance of both the grantor and grantee of the true boundaries, would perhaps, control an erroneous description of the subject-matter of the grant, founded on the fact of interference.
    Appeal front the Circuit Court of Northumberland county, held by Chief Justice Gibson.

    This was an action of ejectment for a tract of land, ill which Anthony Armstrong was plaintiff, and John Boyd and others were defendants. The plaintiff and defendants were owners of adjoining tracts of land; the surveys of which interfered with each other; the land in dispute was within the lines of this interference. The plaintiff’s title was founded on an application oí Joseph Jones; and the defendants were the owners of a title which originated in the name oí Ensign Stine. On the 26th of January, 1775, Ruben Ilains was the owner of both these tracts of land; and that in the name of Ensign Stine was the elder and better title to the land included within the interference, and now in dispute On that day he conveyed the tract in the name of Joseph Jones to Archibald Irvine, under whom the plaintiff now claims, and in the deed thus describes it: “and the said Reuben Hayns doth grant, bargain and sell unto the said Archibald Irvine, his heirs and assigns, a certain tract or piece of land, situate on the head of Muddy run, in the county of Northumberland, and province aforesaid, lately laid out unto Joseph Jones, by certain metes and bounds in the said survey mentioned, containing one hundred and sixty-two acres, be the same more or less.” ' This deed recorded the 8th May, 1S32. The question in the cause was, whether this deed was conclusive in favor of the plaintiff. The Chief Justice directed a verdict to he given for the defendants, and reserved the point, which was now argued by

      Donnel and S. Hepburn for the appellant,
    who dited 1 Mass. 227. 2 Mass. 382. 8 Johns. R. 406. 17 Mass. 210. 6 Serg. fy Rawle, 488. 3 Mass. 356. 16 Johns. R. 110. 17 Serg. §■ Rawle, 156. 15 Johns. R. 472. 14 Johns. R. 226. 3 Johns. R. 331. 5 Serg. 8f Rawle, 246. 2 Serg. Rawle, 46. 1 Yeates, 307. 3 Burr. 1910. 2 Ratole, 114. Row. ón Cont. 264.

      Greenough and - Greer for appellees,
    cited 6 Mass. 131. 6 Bin. 39. 2 Yeatesj 152. 13 Serg. <§• Ratole, 304.

   The opinion of the court was delivered by

Gibson, C. J.

A conveyance of land described as a tract surveyed to a particular person, passes all within the bounds of the survey. It is, in fact, a conveyance by reference to courses and distances or metes and bounds, which are as operative to define the subject of the grant, as.if they were included in the deed. That Ruben Hains may have intended to sell no land within the Stine survey, cannot prevent an application of this principle to his conveyance of the Jones tract, in which the land is described “as lately surveyed and laid out unto Joseph Jones, by certain metes and bounds in the said survey mentioned.” Such an intention, had an interference been suspected, might have weighed with him as a reason to decline the bargain, but it is certainly no reason why the bargain should not bind him when concluded. Hains sold and Irvine paid for all the land in the survey; and why should not Hains, or those who are in his place, be held to make it good?' That his conveyance passed the title at law, is not to be question-, ed; and from what can an equity arise to control its effects? Certainly not from the vendor’s misapprehension of a collateral fact, of which it was his business to judge for himself. Had he acquired the Stine tract subsequently, he would undoubtedly have been bound to convey so much of it as would have been necessary to establish his former grant; and it can make little difference in respect to the justice or the law of the case, that he was already the owner of the tract. In fact, the present case is more favorable to the purchaser than the one supposed, because on this he has the legal estate, and in that he would only have had an equity. Had the parties, being mutually apprised of the true boundary of the Stine tract, actually intended respectively to sell and to buy in accordance with it, theii'.eommon understanding of the bargain would perhaps have controlled an erroneous description of the subject-matter-of the grant, founded, as it would have been, on their common ignorance of the fact of interference. That would have presented a ease of mistake in respect to the very foundation of the treaty, which is always proper for relief. But it would not be endured, that mere ignorance of a better title in the vendor, should enable him to set it up against his o,wn grant, not merely of a defective title, to go for what it should be worth, but of the fee simple. of land sold for its full value. In Seckle v. Engle, 2 Rawle, 68, a testator who was ignorant that his two warrants were laid on the same ground, devised them separately to two persons by the. same will; and the devisee of the younger, though a volunteer, was held to take an estate in common with the other, on the principle that the land and not the title was devised: much more reason is there for such a construction in favor of a purchaser who has. paid for every acre. Hawkins v. Hanson, 1 Maryland R. 623, was the very case of a purchaser of the younger title, from the owner of interfering surveys, whose deed was held in a court of law, to convey an indefeasible title — a casedn all its points like the present. In Secklev. Engle, the interference was to.tal; but the principle is the same, whether it go.es to the whole or to a part. To ascertain the extent of the grant, however, it is said the courses and distances are not to govern,' but the boundary called fpr, whicff in this instance is the line o.f the Stine survey. That survey is indeed called for a$ an abuttal, but it is difficult to conceive how that can make any particular line of it, the commpn boundary of both. If, as frequently happens in similar cases, the actual line of the Jones "tract had not comb up to the abuttal, the, effect of the call would certainly not have been sufficient to prevent the occurrence of a vacancyand, in opposite circumstances, it ean have as. little efficacy in preventing the surveys from actually lying foul of each other. The lines traceable on the ground, or in other words the foot-steps of the surveyor, are every thing; while the diagram with its calls, courses and distances, is comparatively nothing. The defendants, however, derive, their title through a purchaser without nptice, and hence an argument that the title of the plaintiff ought to be postponed. By the common law, a purchaser without notice was protected against nothing in the shape of a legal estate or a legal incumberance, the, maxim of prior in tenypqre, pptior injiere, being, as applicable to these,, as it still is to mere equities, which stand equal in every other respect;and where it has not been altered by statute, this common law principle remains in force. In a conflict between, a legal and an equitable estate, the former in the hands of a purchaser without notice, will be preferréd', because the equity being equal, the law, and consequently the legal title, must prevail. Here, however, the conflict is between legal titles; and the question how far has the common law principle been altered by statute, is easily answered,. At the date, of Irvine’s purchase, he might have had his deed recorded ; but there is no statute which requires him to, have done so, fhen or since: consequently the plaintiff, who claims under him, is not to be postponed. The cause is sent to another jury to try, under these principles, whether the defendants are in possession of any part of the Jones., "tract.

New trial awarded.