author: "Woodward, J.

text:
    Green versus Kellum.
    1. As between intruders tbe first in possession is best in right.
    2. An entry is by color of title when made under a bond fide claim to the land.
    3. A disseisor, claiming the land, after being in possession executed a mortgage under which the premises were sold at sheriff's sale, and part of them was afterwards re-sold by a second purchaser to the disseisor or mortgagor. In an action of ejectment by the heir of the disseisor against a subsequent intruder, it was held that these proceedings were evidence in his favor that the original entry of the disseisor was made under a bond fide claim to the survey.
    4. A disseisor who entered into possession of a survey, claiming to be the true owner of it, made improvements, claiming to the eastern line of it, the boundary between it and two other surveys, and exercised acts of ownership up to that lino by cutting fire-wood and carrying on sugar-works, is to be considered as in possession by color of title — his constructive possession is coextensive with his color of title, and such possession for twenty-one years gave title even as against the real owner.
    5. An entry on the land by an intruder during the twenty-one years, in order to make a survey, did not interfere with the running of the statute. Ah entry by the true owner alone can toll the statute.

      Error to the Common Pleas of Susquehanna county.

    This was an action of trespass by Luther Kellum against John F. Green.
    The plaintiff elaimed the land in question under Luther Kellum, his father, who, in 1810, entered upon land, part of which was in controversy, and which was covered by a warrant in name of Jonathan Nesbitt, and was holding the same at the time of his death, which took place about seven years before the trial. The plaintiff claimed under the statute of limitations.
    The defendant elaimed under Dr. Rose, who was the owner of two surveys adjoining the east line of the Nesbitt survey; and in running the lines of Avhieh surveys the surveyor ran a line about six rods over the line claimed as the east line of the Nesbitt survey. The defendant afterwards cut timber on the interference, for which this action was brought. The two adjoining surveys, formerly claimed by Dr. Rose, were in the name of Cornelius Barnes and John Montgomery; the warrants were dated in 1784, and the surveys called for the Nesbitt tract on the west.
    On part of the plaintiff was given in evidence the warrant to Jonathan Nesbitt for 300 acres. Survey thereon on 14th September, 1776, for above 306 acres. O. S. Beebe, a surveyor, was called, who said he was on the ground some months before the trial, and identified the survey. He said the clearing made by the defendant was on the Jonathan Nesbitt tract.
    He said he made a survey for Nr. Bose in 1838, in order to establish the line of this survey, and returned to him the line six rods west of the east line of the Nesbitt survey as his line.
    Another witness testified that Luther Kellum in 1810 was living on the premises on which the plaintiff lives. The witness was along when the surveyor above referred to made the survey. That Kellum said we should run to the east line. Kellum used the woods for making sugar. He tapped to the east line. That some time after the said survey was made, Kellum said that Rose had been surveying, but as he had not interfered with him, he cared nothing about it.
    There was given in evidence, on the part of the plaintiff, the record of proceedings by a sci. fa. on a mortgage. The sci. fa. was issued to April Term, 1822, in favor of Beebe and another v. Luther Kellum and two others. October 29, 1822, Kellum consented to judgment, which was entered on 4th December, 1822, for $2055.55. Lev. fa. December 28,1822; returned premises sold to John Jameson, one of the plaintiffs, for $120. Sheriff’s deed Juty 15, 1822. In May, 1824, Jameson conveyed to Adrian Bush 106 acres 40 perches, part of the Nesbitt tract; and by deed dated September 18, 1832, Bush conveyed to Luther Kellum.
    . Another witness said he had known the premises for forty years, and had many times seen the two lines spoken of. That Kellum claimed to the east line of the Nesbitt tract, to a beech tree at the foot of a hill. The other line was six rods west. He always used the woods to the east line in sugar making, and frequently took wood from it. He also said that between fifteen and twenty years ago, the father had one half of the 106 acres run off in order to convey to his son, and that he run to the east line.

    On part of the defendant it was stated that a line six rods west of what was admitted at the trial to be the east line of the Nesbitt survey, had been run by a surveyor in 1810, for Dr. Rose, and it was said that the line so run was then supposed to be the true division line of the warrants.
    Another surveyor was called on part of defendant, who said that in 1812 he went to run off a lot for another person, and that Kellum either went with him or directed him to the line formerly run for Dr. Rose, as the east line of the Nesbitt survey. He said he thought he understood Kellum to say that he had taken possession under a Connecticut title.

    Another witness stated that he was along with the surveyor in 1812, when the line was run — that he lived in the neighborhood since 1810, and had never heard of any other line till 1827. That he was worldng in Kellum’s sap bush in 1810, ’ll, or ’12, and that Kellum showed him the two corners of the Leonard lot, meaning the west line of the Rose survey, claimed by the defendant. (Leonard claimed under Dr. Rose to the west line.)
    The witness said he had the Leonard lot in his possession from 1814 till 1826 — -and that it was in the possession of others till 1841. Since which time, he, the witness, had held it. The Leonard lot lies east of the plaintiff’s. The line in dispute, if established by the plaintiff as his, would take about six rods off the lot of the witness.
    There was given in evidence a deed from Rose to Leonard, dated 14th December, 1812, for 126.1 acres, as surveyed in 1812, and certain conveyances from Leonard.
    It was shown that Creen, the defendant, held under Rose, by contract of sale in 1847.
    Wilmot, J., charged the jury (inter alia) that if Kellum, the father, claimed up to the east line of the Nesbitt tract (which line was at the trial admitted), then the Court could not see “ any title or shadow of title in the defendant; and if the plaintiff had in his possession as woodland adjacent to his improvement the land on which the trees were cut by the defendant, he was entitled to recover.”
    He previously charged that he did not perceive how any question arose as to the tolling of the statute of limitations; but he charged that the entry of the owner alone could toll the statute. If Kellum claimed up to the old east line, no entry of Rose could impair or affect his claim, because Rose had no right of entry.

      Verdict was rendered for the plaintiff.
    Error was assigned to the instructions stated.

      W. and W. S. Jessup, for plaintiff in error.
    The entry by Dr. Rose claiming to the west line, and having it defined and marked upon the ground, and the possession continued by Leonard and those who claimed under him from 1810, gave title by the statute of limitations against the holders of the title under the Nesbitt warrant: 5 Barr 300, Waggoner v. Hastings. Neither party had exclusive possession or claim. Kellum entered under a Connecticut claim, and had no title or color of title to the Nesbitt tract. Evidence that he claimed to the east line would in 1812 give him no title to it. Rose entered with claim of title and color of title. His surveyors, three in number, had returned to him the .line claimed by the plaintiff as the true line of the Nesbit tract. There was no evidence that Kellum, the father, had ever given notice of his claim as far as the east line to Rose, or others claiming under him. In 1812 Rose had the same right of entry that Kellum had. His agents or vendees entered with Kellum’s knowledge and assent. His claim was continued, as was Kellum’s, and it was submitted that against Rose, Kellum had no right.
    The Court assumed that the claim of Kellum was an uninterrupted claim, and excluded Rose’s claim as invalid on the ground that Kellum had a better right. It was admitted that if Kellum had been in possession with title, the position would have had foundation; but, it was said, there was none, as he had neither title nor color of title.

      Bentley and Bitch, for defendant in error.
    The owner alone, not a trespasser, can toll the statute: 4 Barr 254, Altemus v. Long.
    Neither Rose nor the defendant had any actual possession of the' land in dispute.
    The land in possession of Green was wild land; and whatever questions might arise as to the Leonard lot, they cannot affect the question between the parties to this suit. The plaintiff claims to have had possession of the land in controversy, and that neither Rose, Leonard, or Green ever had actual possession of it.
    The warrant of Rose was bounded by the line of the Nesbitt warrant, and neither Rose, Leonard, or Green could have had constructive possession of any land west of it: Altemus v. Long, before referred to.
    The facts in relation to the possession, were properly left to the jury. Rose never paid for the land in dispute, never paid taxes for it, and never had it in his possession.
   The opinion of the Court was delivered by

"Woodward, J.

The argument of the plaintiff in érror rests on the assumption that Kellum’s possession was without color of title; and if this foundation be taken away, the argument falls into ruins. Long before there was any possession of the Barnes and Montgomery warrants, as early as 1808, according to the defendants’ testimony, Luther Kellurn, the elder, went into possession of the Nesbitt survey and made an improvement claiming to the eastern line, which is admitted to be the true original boundary between the Nesbitt and the Barnes and Montgomery surveys, and exercised acts of ownership quite up to that line by taking fire-wood and carrying on sugar-works. What was this but color of title ? Such acts indicate clearly the bona fides of his claim to the Nesbitt survey, and the complete disseisin of all other claimants from every part of the tract. “ To give color of title,” said Chief J. G-ibson, in McCall v. Neely, 3 Watts 72, “would seem not to require the aid of a written conveyance, or a recovery by process and judgment, for the latter would require it to be the better title. I ■would say that an entry is by color of title when it is made under’ a bond fide and not pretended claim to a title existing in another. It is impossible to say, therefore, that a disseisor claiming to be the true owner of a survey, as he may in fact be without being named in the warrant, does not enter by color of title.” And if such air entry and claim be color of title, then, according to all the cases, the constructive possession is coextensive with the color, and twenty-one years of such occupancy gives title even as against the real owner.

But as against a subsequent intruder there can be no question that Kellum’s possession was coextensive with the lines of the Nesbitt survey: Hoey v. Firman, 1 Barr 300; Bishop v. Lee, 3 Barr 217. Why should not an actual possession, though wrongful as to the legal owner, be protected from the trespass of one having no right ? An intruder into unoccupied lands is not an outlaw. If he enter peaceably, he has a right to remain peaceably until expelled by the owner or some one who can show a superior right of possession, and his possession is so far an object of the law’s regard, that time will mature it into a perfect title. As between intruders, the first in possession is best in right. Rose and his alienee had no title or color of title to Jonathan Nesbitt, and no possession, for the jury have found Kellum’s possession to have extended to the east line, the admitted boundary of the tract. The entry of Rose, then, whether to survey or to take timber, was a breaking of Kellum’s close, for which an action lies.

But again. According to the meagre and defective statements of the paper-books we find old Luther Keljum sued, in 1822, as a mortgagor of the Nesbitt tract — that he confessed a judgment on which a sheriff’s sale of the tract was made to John Jameson, who afterwards conveyed 106 acres 40 perches, part of the tract, to Adrian Bush, who conveyed the same to him, Kellum. Here was color of title according to the most commonly received ideas of the phrase, and further evidence that his entry from the first had been under a bond fide claim to the Nesbitt survey. That the 106 acres embrace the land in dispute must be inferred from the evidence having been admitted without objection.

The assumption, then, that Kellum was a mere squatter without color of title, insufficient, if well founded, to justify the entry of a subsequent intruder, is utterly baseless. The plaintiff below holds the land in controversy by a descent -cast — his ancestor entered in 1808, and occupied under color of title. According to the oldest principles of the common law, a disseisor has a good possession against everybody but the true owner, and his heir is in by a better right than himself; and according to the modern doctrine by which the statute of limitations is administered in Pennsylvania, his title was perfected long ago even as against the original owner. The entry of Bose to survey at any time during the running of the statute did not toll it, for it is the entry of the owner alone that can have this effect, and Bose had not a shadow of title to the Nesbitt survey.

On the whole, we think there was no error in the instructions given, and the judgment is affirmed.


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Board of Health versus Gloria Dei.
    1. Notwithstanding the 4th section of the Act of 11th March, 1846, relating to municipal claims in the county of Philadelphia, provides that no “ plea touching the question of ownership shall he allowed in any such action yet it being provided in the Act of 7th April, 1830, that the claim shall be filed against “the owner or reputed owner,” it was held to be competent for the defendants in a proceeding by seire facias for such a claim for paving, &c., in a certain court or passage way, to plead specially that the said court had been open to common use by the owners of the adjoining ground for more than seventy years, and that the defendants had only a right of way along it in common with the said owners.
    2. A church not owning such court or passage, but using only a right of way over it to a lot at its termination, was not liable for a claim for paving it.
    Error to the District Court, Philadelphia.

    This was a claim filed at the instance of The Board of Health v. The Sector, &e., of the Church of Gloria Dei, for the paving, &e., of the cartway of Swedes’ Court, which commences at Second street near Christian street, and extends from Second street about 146 feet to a piece of ground, formerly used as a burial ground, but it was not used for any purpose when the claim was filed. The defendants were charged as owners or reputed owners. The amount charged for paving, &c., was divided. The cost of improving the sidewalks of the said court was charged against the lots which bounded on the said court; and the paving, regulating, &c., of the cartway was charged against The Rector, &c., of the Church, as owners of the lot of ground into which Swedes’ Court led. The said piece of ground was about 100 feet square. The claim was filed under the Act of 7th April, 1830. Sci. fa. was issued to June Term, 1850. It was alleged that a nuisance existed in the court, .which was removed and the improvements in question made thereon.
    The defendants’ counsel moved to restrict the lien to the soil of the court or alley, but the motion was refused. It was then pleaded that the piece of ground against which the charges were made was situate at the end of the court and not along it; and that the court had been open for more than seventy years to the common use of all the parties whose lands abutted thereupon; and that the defendants had no other claim or right therein than a right of way in common with the owners of ground on either side of it. 2. That the court and the lot of ground against which the claim was filed were separate and distinct lots, and that no part of the nuisance was upon the lot, &c. Other pleas were added.
    The pleas were demurred to, and on September 17th, 1853, judgment was given for the defendants. It was assigned for error that the Court below erred in not entering judgment for the plaintiffs, to be levied of the soil of Swedes’ Court or alley.

      J. A. Phillips, for plaintiffs in error.
    By the Act of 29th January, 1818, it is made the duty of the Board of Health to cause to be removed nuisances tending to endanger the health of the citizens. By the Act of 7th April, 1830, the expenses of the removal are to be a lien upon the premises from which the nuisance has been removed, and it is made the duty of the board to file the claim against the owner or reputed owner; and the claims filed may be proceeded on by scire facias in like manner as mechanics’liens, and upon the trial, “ the fact of the nuisance shall not be inquired into;” and the defendant “shall only be permitted to give evidence of payment, or that unnecessary expenses were incurred by the Board in the removal of the nuisance.” The Act of March, 1846, provides for the mode of service of the writs of scire facias, and provides that no plea averring want of notice to remove nuisances, &e., “ nor any plea touching the question of ownership, shall be allowed in any such action.” Power to remove nuisances is also given by the Act of 5th April, 1849 {Acts, p. 347).
    The Court below rejected the claim, not only against the whole of the property against which it was claimed, but against the soil of the alley, the seat of the nuisance. It was said that the Court might have stricken out the lot, and permitted the claim to remain against the alley ; and should have given judgment to he levied of the soil of the court or alley. The claim was filed under the Act of 1808: 2 Barr 366.

      A. S. Smith and 6r. M. Wharton, for the defendants.
    By the plaintiffs’ showing, the nuisance was not on the ground of the defendants, but upon an open court leading to it. 2. The plaintiffs did not apportion the entire cost of its removal among the lots supposed to be liable for it; but without apportionment charged a particular part of it to those on the court, and another part to the grave-yard at its extremity. These are the matters set forth in the five pleas, and it was submitted that neither of them was forbidden to be pleaded by the Act of 14th March, 1846. The Act of 7th of April, 1830, does not prohibit pleading other matters than payment, or that unnecessary expenses were incurred. It concerns only the evidence which may be offered in support of those pleas. Any other construction would invest the Board of Health with arbitrary power to charge the cost of removing a nuisance against property remote from the place of the nuisance. The claim of the plaintiffs as filed must be determined.
   The opinion of the Court was delivered by

Woodward, J.

The Board of Health, finding nuisances along a lane or alley called Swedes’ Court, proceeded to remove them by curbing and paving the foot-walks, for which they charged adjoining owners; and by grading and paving the cartway, for which they seek to charge the church because the court leads to their burial ground. The claim filed against the church under the Acts of Assembly denominates this alley “ a lot of ground,” and charges the defendants as owners of the soil.

Notwithstanding the Act of 11th March, 1846, prohibits any plea “touching the question of ownership,” it was competent for the defendants to answer such a claim, as they did in their special pleas, by denying that they were the owners of the soil and alleging that the said ■ court had been dedicated to public use for more than 70 years. And these facts, admitted by the demurrer, ousted the jurisdiction of the Court over the claim filed, for although under the Act of 1818, the Board of Health have power to remove nuisances from streets, lanes, alleys, and highways, yet they are authorized, by the Act of 7th April, 1830, to file liens for the expense of such removals only against the “ owner or reputed owner” of the premises from which such nuisance has been removed. The church was neither owner nor reputed owner of this alley within the meaning of the Act. It was a lane or alley, 15 feet wide and 146 feet long, leading from Second street to the burial ground and devoted to public use. It appears of record that it was public ground and not private property. If grading and paving such an alley were necessary to exclude nuisances, the public, and not an owner at the end of it, must foot the bill.

There was no ground furnished for apportionment, and the Court were right in refusing it. Judgment affirmed.


text:
    Klett versus Delaware Insurance Company.
    The terms “vegetables and roots prepared or otherwise/-’ used in the memorandum clause of a policy of insurance as -warranted by the assured free from average, Held to include pinkroot, though as an article of commerce previously dried or prepared, deprived of its germinating qualities and in no way succulent or perishable in its nature, the assured having failed to show any usage of trade to control the ordinary meaning of the terms.
    This case came up from the Nisi Prius. It was an action of covenant on a policy of insurance brought by F. Klett & Co. v. The Delaware Mutual Insurance Company, to recover for a partial loss, over 20 per cent, on 15 bales of pinkroot, consigned to the plaintiff, and which was injured by dangers of the sea, other than stranding. The policy contained the usual memorandum clause, by which it was agreed that certain kinds of property, including “ vegetables and roots, prepared or otherwise; rags, hempen yarn, &c., and all articles perishable in their own nature, are warranted by the assured free from average (except general), unless it happen by stranding, and amount to 20 per cent, on the whole aggregate value of such articles,” &c.
    The material question was, whether pinkroot was embraced among the memorandum articles named in the policy.
    The plaintiffs’ counsel offered to prove by a witness that “ pink-root is an article of commerce previously dried and prepared, deprived of all its germinating qualities, and in no way succulent or perishable in its nature.” This was objected to, and was overruled.
    On part of the plaintiffs, a witness was called, who said that he was a druggist, and had been in the habit of insuring drugs for many years, among others pinkroot; and had always considered it as not within the memorandum article. Before this trial he had never conversed with any one on the subject in question.
    Another witness said that he was a druggist; that he believed it was generally understood that pinkroot was covered by such a policy as the one in question; that pinkroot will last for ten years or longer; that formerly tops and all were sent to market — now only the roots are sent — “it is always shipped to England with tops as well as roots; it is cut up and prepared.” On his cross-examination he said he had never known an instance of a claim made for damage to it except in this case and that made by a former witness in this case. The parties who ship to the witness generally insure themselves.
    Another witness, a druggist, said he had known pinkroot to be insured; always considered himself safe in such an insurance; did not know what the insurance offices considered on the subject. He said he had pinkroot on hand ten or twelve years — “ it is not perishable;” did not know that he had ever read the memorandum in question.
    The plaintiffs’ counsel then closed their case, and the judge, on motion, ordered a non pros, because the plaintiffs had “ failed to show that pinkroot is not a root within the meaning of the memorandum clause of the policy as established by mercantile custom, and so understood by the underwriters.”
    It was assigned for error that the Court erred in rejecting the evidence offered; 2 and 3, in directing a nonsuit for the reasons assigned by him.
    Fallon, for plaintiffs in error.
    It was submitted that the object of introducing the memorandum clause into marine policies, was to except articles perishable in their own nature, and which were liable to deteriorate from inherent decay or internal decomposition, or easily damaged. Sarsaparilla is not a root perishable in its nature: 7 T. R. 385-6; also, 2 Arnould 851-2. The judge, in confining the plaintiffs to proof of a usage or understanding in respect to the particular article of pinkroot, was too strict. It was said that shipments of pinkroot were not sufficiently frequent to afford any usage or custom in relation to it particularly. The offer was to prove that pinkroot was an article of commerce dried and prepared, not perishable in its nature, and therefore not within the memorandum clause: also, that it was deprived of all germinating qualities, and in no way succulent or perishable, and therefore did not come within the meaning of the word “ roots,” by which, it was said, was to be understood either the parts of the plants designed to supply the stems with nourishment, or juicy and esculent, such as beets, &c.: McCulloch’s Dictionary as to Madder. The term “skins and hides” held not to include “bear skins” covered with fur: 7 Cowen 202, 207; 6 W. & Ser. 279.
    It was further said to be questionable whether the plaintiffs had not proved that pinkroot was not an excepted article.

      G-. M. Wharton, with whom was J. JS. Martin, for defendants in error.
    All prepared roots were included in the policy, and pinkroot is one of such. Prepared roots are dried roots. The term is not confined by the policy to esculent roots. The plaintiff would have been permitted to show that pinkroot was not a root within the meaning of the memorandum clause, as established by mercantile custom, and so understood by underwriters. It was not so shown. But if it were proper, according to 2 Arnould 851—2, to prove that the term “roots,” standing alone, may mean only esculent roots, it may have been going too far to have allowed the plaintiffs to show that prepared roots do not mean dried roots, contrary to the language of the policy. But the first witness knew of only one case of claim made, and that was compromised; and the knowledge of the second was limited to that case and this one; and the third witness knew of no other case where a dispute arose on the subject. The terms “hides and skins” do not include “furs:” 7 Cowen 202; but “skins” includes “deer skins:” 2 Johns. Cases 246. Fruit includes “dried prunes:” 1 Brevard 437. The terms used in a policy are to be understood in their ordinary and popular sense, unless, in respect to the subject-matter, they have generally, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the words: 4 East 135; also, 2 Phillips on Ins. 449-51.
   The opinion of the Court was delivered by

Woodward, J.

The memorandum clause of the policy sued on here exempts a great variety of articles, and, inter alia, vegetables and roots prepared or otherwise.” The single question is whether pinkroot falls within that description. It was in evidence that pinkroot is taken out of the ground, and was formerly sent to market tops and all; now they send only the roots; it is always shipped to England with tops as well as roots; it is cut up and prepared; and the- plaintiffs offered to prove that pinkroot is an article of commerce previously dried and prepared, deprived of all its germinating qualities, and in no way succulent or perishable in its nature, which the Court rejected, and entered a nonsuit against them.

“Roots prepared or otherwise,” is a designation which must bo held to comprehend a particular “root cut up and prepared,” unless we wilfully violate the law of language. The terms used in a policy, said Lord Ellenborough, in Robertson v. French, 4 Bast 135, are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject-matter, as by the known usage of trade, or the, like, acquired a peculiar sense distinct from the popular sense of the same words.

The plaintiffs failed to show any usage to control the effect of the terms used in the memorandum clause, and therefore the Court were right in entering a nonsuit.

The judgment is affirmed.


author: Black, C. J.

text:
    Lynch versus Cox.
    1. Resulting trusts as to land may be established by parol, and may be enforced by ejectment.
    2. The mere fact that the property was paid for with the money of the claimant, is sufficient to establish, .primCt facie, a trust in his favor, liable to be overthrown by proof that the payment was a gift of the money to the grantee of the legal title.
    3. Where the purchase-money was shown to have been paid by one but the conveyance was to another, and possession was taken by the former immediately after the conveyance and continued for above twenty-five years, it was error in the Court to charge that the trust could be shown only by an express agreement by the latter to hold the land for the use of the former. A trust arose in the case by operation of law.
    4. Though the evidence did not show the intent of the parties in the transaction, the presumption was, not that the payment was meant as a gift of the money, but that the grantee consented to take and hold the title in trust.
    5. Where one person paid the purchase-money for land, the deed being made to another but the former immediately took possession, and during the life of the latter, who lived but a few months, no claim to the land was made by him nor any acknowledgment by the former for more than twenty-one years that the land was owned by the latter, and the former remained in exclusive possession by himself and tenants for above twenty-one years applying the profits to his own use, his possession was adverse, and the statute began to run with his possession.
    6. The statute having begun to run in the lifetime of the grantee in the deed, it was not stopped or suspended by the fact of the heir of the grantee being a feme covert or beyond seas; nor was its operation affected by the ignorance of the heir of the transaction.
    7. Neither in ejectment nor in trespass can a plaintiff recover mesne profits for more than six years.

    8. The omission to substitute one of the heirs of a deceased plaintiff is amendable; and if the jury be sworn in the name of all of the heirs, and a verdict be rendered accordingly, the irregularity will not be a ground of reversal.
    Error to the Common Pleas of Chester county.

    A writ of ejectment was issued on 20th November, 1849, in favor of Elizabeth Cox and John Wilde against James Lynch, for a tract of above 86 acres. In July, 1850, the death of Elizabeth Cox was suggested, and William Cox and others, her children (except Henry T. Cox) and their husbands, were substituted. Elizabeth Cox claimed as sister of John Lynch, and John Wilde was supposed to be the representative of another sister of John Lynch.
    The original plaintiffs in the action claimed to recover the land as heirs of John Lynch, who died in 1828. The deed for the property in question was from Robert Gregg and wife to John Lynch, and was dated 21st April, 1828.
    On the part of the defendant it was alleged that the property was paid for with the money of James Lynch, and that the latter took possession of it soon after its purchase, in 1823, and had since been in possession by himself and tenants, and had improvements made on it. James and John Lynch were Irishmen, and were cousins.
    On the part of the plaintiffs, it was testified by J. Hodgson, that John Lynch came to the farm with James Lynch and his family in 1823, soon after it was purchased. During the summer he removed across the road, and died during that fall. He was unmarried. He left two sisters. The witness said that between 1833 and 1836 he had a conversation with James Lynch, the defendant, in relation to the sisters of John, who were in Ireland, and that James wanted him to go to Ireland and purchase their interest in the land for him. He said that James Lynch left the property about 1834, and went to Maryland.
    The witness was examined as to the mesne profits, and testified that certain letters were in the handwriting of James Lynch, the defendant. ■ In one of the letters, which was signed John Lynch, (John Lynch was a son of James) and dated in May, 1849, it was, inter alia, stated that John Lynch died on the 24th August, 1823, and had left a small property in the care of his father, “ which property he bought in the year 1823, and for which he paid $860.” The letter.was addressed to Mrs. Cox in England.
    On the part of the defendant it was testified by Robert (fregg that he bought the property in question from James Hodgson, in 1823. That in February, 1823, James Lynch came to him to buy it, and it was shown to him. In a few days after he returned with John Lynch. James said he would be willing to give $860 for it, under certain conditions, which were agreed to. No article of agreement -was made, but in March, 1823, the witness removed James and his family to the land. John Lynch said that if James was not able to pay all the money for the land, he would assist him. The witness thought that John wrote the deed — but James paid the money. He stated he did not know where James got the money. This was in 1823. That John Lynch said it made no difference whether the deed was made to him or James, for they •were the only two cousins in the country — that he had lost his health, and did not expect to live long, “ and it would be James Lynch’s property anyhow.” He stated that John said he had two sisters who were married.
    He further stated that John said to James, when they were looking at the land, that he thought it would suit him — told James that he had the buying of the land, and must make the bargain.
    Another witness said that Keenan, a tenant of James, came to the land in 1833-4.
    It was stated in the paper-book that James Lynch had continued to- occupy the land by himself or tenants since 1823. Evidence was given of improvements, by direction of James, in the second and fourth years after he took possession.

      Evidence was given of the mesne profits.
    On part of the defendant, evidence was given to disprove the character of Hodgson.
    On part of the plaintiffs, witnesses were called to sustain the character of Hodgson.
    Points were submitted on each side.
    The judge charged that if the verdict were for the plaintiffs, they were entitled to recover mesne profits from the death of John Lynch, and that the jury might give damages not only for rents and profits, but for cutting timber, and any other injury done by the defendant to the property.
    tie also charged, inter alia, that in order to entitle James Lynch, the defendant, to hold the property, it must be clearly shown not only that “ James furnished and paid the purchase-money, or part thereof, but that the conveyance was made tp John under the express understanding and agreement that he would hold it for the use of James.” He expressed the opinion that no such clear evidence existed in the case.
    In reply to points proposed on part of the defendants, one of which was that twenty-one years’ exclusive and adverse possession gave title to land in Pennsylvania against all persons capable of suing, and that the possession in this case was of that character, and was adverse and exclusive, the Court charged that if the heirs of John knew of the fact that John held the legal title, then twenty-five'years’ possession without claim would be corroborative of the right of the plaintiffs; but that the plaintiffs were beyond sea, and there was no evidence of their knowledge of the condition of the matter until 1849; that twenty-one years’ possession will give title, if it be adverse and exclusive, but th,at in this case, according to the evidence, the possession was unknown to the plaintiffs ; and Elizabeth Cox, being a married woman until within a few years, was protected by her coverture.
    December 28, 1858, verdict was rendered for the plaintiff, and for Henry T. Cox (who, though a son of Elizabeth Cox, had not been substituted), for the undivided half of the land, it not having been proved in the case that John Wilde, one -of the plaintiffs, was the representative of another sister' of John Lynch.
    Various specifications of error were filed: the first, that the verdict was in favor of Henry T. Cox, who had- not been substituted, — and others applying to the instructions referred to, including the instruction as to recovery of mesne profits.
    On part of plaintiff in error, in support of the position that where one man pays the money for land and the conveyance is made to another, a trust arises by operation of law in favor of the person who paid the money, reference was made to 3 Bin. 302; 2 Ser. & R. 521; 5 Watts 27; 8 Ser. & R. 492; 5 Barr 132; 2 Story’s Eq. 1201; 1 Harris 638, opinion in Beck v. Uhrich. The Court below held that words are necessary to raise such a trust. Parol evidence may be given to establish a trust: 4 W. & Ser. 150. The existence of the trust does not depend on the intention of the parties. The question of a resulting trust should have been submitted to the jury.

      W. Darlington, for defendants in error.
    It was said that it was not proved that James owned the money which was paid for the land, or that John Lynch admitted that he bought the land for the defendant: 6 Harris 137, Blyholder v. Gilson, cited. The defendant’s declarations were to the contrary. The Court are to judge whether a parol claim of title to land is made out: 7 Harris 468, Moore v. Small; 7 Barr 159 ; 9 Watts 42.
    As to’ mesne profits. By the common law the plaintiff in ejectment may recover his real damages by giving notice of his intention to claim them: 1 Peters 452; 11 Ser. & R. 58; 4 Dallas 138. There is no intimation in any of these cases that any limitation applies to the recovery of mesne profits in the action of ejectment. Also cited 4 Wh. 240; and Cook v. Nicholas, 2 W. & Ser. 27.
   The opinion of the Court was delivered by

Black, C. J.

James and John Lynch were cousins, the former having a family and the latter being a bachelor. James, the defendant below, bargained for the property in dispute and paid the purchase-money in 1823, but the conveyance was made to John for no reason which distinctly appears, except from the declaration of John (who wrote the deed himself) that it made no difference, for he was in bad health, and at his death it would be James’s anyhow. James took possession immediately. John lived with him for three months and then removed to a neighbor’s, where in three months more he died. James has continued in possession ever since. In 1849 this suit was brought by a sister of John’s, and she dying her heirs were substituted.

Parol trusts, in opposition to written titles, are not to be favored. Still it is true that resulting trusts may be established by parol. When clearly proved equity will decree the execution of them, and in this state we must enforce them by ejectment. What evidence is sufficient to establish such a trust ? It is well settled that nothing more is necessary than to prove that the land was paid for with the cestui que trust’s money. This naked fact is enough to make out a primd facie case, liable however to be overthrown by proof that the payment was a gift of the money to the grantee of the legal title. It was erroneous therefore to charge, as the Court below did, that the trust in this case could be shown only by an express agreement to that effect between the partios. One who takes a deed in his own name for land paid for by another is a trustee by force and operation of law: not because he agrees to hold for the other party, but because he cannot hold for Iris own use without violating conscience, good faith, and honesty. The trust results from, and the obligation to execute it is implied by, not bis will, but the nature of the transaction.

The proposition that a resulting trust does not arise from the payment of purchase-money unless the deed was taken in the name of another maid fide, or with an express acknowledgment of the trust by the grantee, is not supported by authority. Chancellor Kent (4 Comm. 300) lays down the broad rule that when an estate is purchased by A. and the consideration paid by B., there is a resulting trust in favor of B., provided the payment of the money at the time of the purchase be clearly proved. Chief Justice Tilghman (3 Binn. 302) says that parol evidence of the fact of land being purchased with the money of another creates the trust by operation of law. Mr. Justice Rogers (4 W. & Ser. 150) expresses the same thought, but in other words. Mr. Justice Duncan (2 Ser. & R. 521) discusses the subject with the attention of his mind called to the distinction between a fraudulent purchase with money which did not belong to the grantee and a case like the present, in which the land was bought and the consideration paid by one person, and the conveyance made to another with the consent of both. He declares that a resulting trust, properly so called, is where the purchaser of land pays the purchase-money but takes the conveyance in another person’s name.

There is a very large class of cases within this principle and to which it is constantly applied. I mean those in which the applicant for vacant land pays the fees and purchase-money to the Commonwealth, but takes out the warrant in the name of another to avoid the operation of the laws against engrossing the public lands. In such a case the nominal warrantee is always regarded as holding the title in trust for him who paid the purchase-money, without any proof that it was so agreed. We therefore believe that when it is proved that the consideration was paid by one and the conveyance made to another, and there is no evidence showing the intent of the parties, the presumption is not that it was meant as a gift of the money by the one to the other, but that the grantee consented to take the title in trust.

When a party, alleging himself to be cestui que trust, proves the purchase-money to have been his, he makes a strong case; it is much strengthened by showing that he went into possession immediately, without opposition from the holder of the legal title; and it is rendered nearly irresistible by a continued and undisturbed occupancy, without payment of rent or other acknowledgment of a superior right for a long time. We cannot decide on remote transactions without the aid of presumptions. After witnesses are dead and papers lost, it is impossible to know what were the true original merits of the case. Such presumptions are in favor of the legal title when neither party is in possession, but when the cestui que trust occupies the land they are wholly against the trustee. Indeed a defendant, who has been in adverse possession for twenty-one years, is protected in courts of equity as well as law, not by a presumption analogous to the statute of limitations, but by the statute itself. In no case does a lapse of time less than twenty-one years raise a presumption which of itself is equivalent to full proof; but a much shorter period, coupled with other circumstances, may be equally powerful.

In this case the defendant proved that the bargain was made and the purchase-money paid for the land in dispute by himself, with a distinctness not to be expected after so long a time. He showed also that he went into immediate possession, and so continued during the short lifetime of John, and for full twenty-five years after his death before any suit was brought or claim set up against him. I have already expressed the opinion of this Court that the payment of the money and subsequent possession by the defendant was strong evidence of the trust which he avers. It remains to inquire whether there is anything to prevent the statute of limitations from running in his favor.

When James Lynch first took possession, John was living. He remained in his family for a time, and when it became inconvenient to stay there he removed to a neighbor’s. We find no evidence of any claim by John in his lifetime, or any acknowledgment by James that the land was owned by the former. If James was in the exclusive occupancy of the land, living there with his family, cultivating it and applying the profits to his own use, his possession of it was hostile and adverse to all intents and purposes. Under these circumstances we can see no reason why the statute, if it runs at all, should not begin at the beginning of the defendant’s possession. Such being the case, it was not stopped or suspended by the fact that John’s next heir was a feme covert beyond seas or within any other exception to the statute. Neither is this question affected by the actual ignorance of the present plaintiffs, or their mother, concerning the facts.

The only bad feature in the defendant’s case is made by the evidence of Hodgson, and by the letter of May, 1849, written by him in the name of his son, in which he says that the land was paid for by John Lynch, andleft in his care. This not being mentioned in the charge, nor touched by the argument of the plaintiff in error, cannot properly be the subject of any discussion now. Wo have no doubt that if called upon in a second trial the Court and jury will give it a true and just construction.

Neither in ejectment nor in trespass can a plaintiff recover mesne profits for more than six years.

One of the children of Mrs. Cox, the original -plaintiff, was omitted at the time her death was suggested, and the heirs substituted. Such an error is amendable, and if the jury is sworn in the name of them all, and the verdict is rendered accordingly, it is an amendment. Not to have had the other name entered on the record before trial was an irregularity to be sure, but not such an error as we can reverse for.

Judgment reversed and ven. fa. de nov. awarded.

Lowrie, J., dissented.


text:
    Emery versus Spencer.
    1. A precisely descriptive warrant gives title from its date, and a vague one from the time of its survey, if followed up with reasonable diligence; but whether descriptive or vague, it must be surveyed and returned into the surveyor-general’s office within a reasonable time, otherwise it will be postponed to a subsequent claimant who has his title perfected.
    2. Ordinarily, abandonment of land involves a question of intention for the determination of the jury; but when it depends on lapse of time, and there are no repelling circumstances in proof, it becomes after seven years a conclusion of law.
    3. Payment of purchase-money does not excuse a warrantee from having survey made and the warrant returned, the rule requiring reasonable diligence by warrantees being founded not only in the interest of the Commonwealth in the payment of the purchase-money but in public policy which requires record notice of appropriations of land.
    4. A descriptive warrant obtained in November, 1836, and entered in the location book of the deputy surveyor, but no survey thereon being made till August, 1850, nearly fourteen years, and no residence or improvement thereon by the warrantee, was held to be postponed to the claim of a settler who commenced his settlement in 1849 and duly prosecuted it.
    5. The payment of taxes by the warrantee, and the sale of the land as unseated did not improve his claim. Possession and improvement constitute the only exception to the rule presuming abandonment after delay for seven years to return a survey: and moreover, until individual appropriation of the land it is not assessable.
    6. The knowledge by the settler that a warrant had been issued about thirteen years before, but on which no survey had been made, was not material, as he had a right to presume abandonment of claim to the land under the warrant.
    7. Though actual settlers are not named in the Act of 10th March, 1817, reopening the land office to purchasers in general, claims by actual settlement and improvement were not excluded by it.
    8. To constitute a settlement on land within the provision of the Act of 30th December, 1786, there must be an actual personal resident settlement on the land, with the intention of making it a place of permanent residence and the means by cultivation of supporting a family, and the settlement must be prosecuted with reasonable diligence, of all which facts the jury are to determine.

      9. If tlie residence on the land he merely for lumbering purposes and not for cultivation, the settler acquires no pre-emption right, by his entry and improvements against a claimant by warrant and survey.
    10. The residence need not be by the claimant himself. He may make a settlement through the agency of another and continue it by his tenants.
    11. When a settlement has been properly made and duly prosecuted the pre-emption claim of the settler dates from his entry and the beginning of his improvement.
    Error to the Common Pleas of Tioga county.

    This was an action of ejectment, brought in November, 1851, by Josiah Emery against Lyman Spencer and others, for about 150 acres of land.
    The plaintiff claimed under a warrant of 26th November, 1836, for 150 acres, adjoining the Strawbridge survey on the marsh on the north and east, J. Steele, No. 5982, on the west, James Wilson, No. 4202, on the south, and situated in Delmar township, in the county of Tioga. The purchase-money, $40, and office fees, and $4.50, were paid. The warrant was put into the hands of the deputy surveyor soon after it was issued, as appeared from the entry in the location look; but no survey was made upon it till the 5th of August, 1850, when a survey was made by S. McDougall, then deputy surveyor. The tract was first assessed with taxes in the year 1841, and for that and the subsequent year Emery paid them. On the 18th of June, 1844, it was sold for taxes and bid off by J. E. Donaldson, to whom a deed for it was executed by the treasurer on the 16th September, 1844. On the 15th June, 1846, it was again sold for taxes, and bid off by the county commissioners, and on the 14th of June, 1851, redeemed by Donaldson, who, on the 14th July, 1851, conveyed it to the plaintiff.

    It appeared that tire original warrant was lost, and that a certified copy of it was obtained soon after Spencer took possession of the land, and upon such copy the survey was made.
    The defendants claimed by virtue of an- alleged pre-emption right acquired by actual residence and settlement made upon the land prior to the plaintiff’s survey, and gave evidence to show that Lyman Spencer (one of the defendants) went into the possession of the land in November or December, 1849; that he first commenced chopping on it in November, 1849; that he erected a log house on it during that month, and that his son-in-law, Thomas Shaw, moved into it the latter part of November or the early part of December, of that year; and that he or some other person continued to reside on the land without interruption from the time he first took possession till the time of the trial. Whether this residence upon and occupancy of the land, in connexion with the improvements made on it, constituted a settlement, was ultimately submitted to the jury, it being alleged, on the part of the plaintiff, that the possession of the tract was rather for the purpose of cutting and taking timber from it. than for the purpose of cultivation. There was no evidence on the part of the defendants that the land had ever been assessed in their names, or' that they had paid any money for it to the Commonwealth.
    It was admitted on part of the plaintiff that some one resided on the land from December 1, 1849, till time of trial, but it was alleged that Lyman Spencer, who claimed the land, only resided on it awhile in the summer of 1851, when he moved off, and had not resided on it since.
    Certain evidence offered, mainly with the view of showing notice to Spencer of the warrant to Emery, the plaintiff, was rejected.
    Evidence was given intending to show that, before Spencer took possession of the land, Emery was under the impression that his warrant had been laid.
    On part of the plaintiff, two points were submitted: the first was to the effect that if the jury believed that the defendants had notice before they took possession of the land that the plaintiff had a warrant for it, they could not acquire a title to it by settlement, no matter what their intentions were in going upon it.
    2. That, if the defendants took possession of the land for the purpose of cutting and removing the timber, and not for the purpose of residence and cultivation, they acquired no pre-emption right, and could not set up the entry as the commencement of title by settlement.
    White, J., in his charge, inter alia, observed that it was alleged on part of the plaintiff that since the passage of the Ac't of 10th March, 1817, no right could be acquired by settlement; and, 2. That his warrant had priority over defendants’ settlement, it being descriptive, and under the circumstances of the case the land not having been abandoned, and Spencer having notice of the plaintiff’s claim. He observed: “ The case of Stockwell et al. v. Robinson, 1 Barr 482, giving a construction to the effect of the proviso in the 2d section of the Act of 28th March, 1814 — rules the first position advanced by plaintiff — the 2d section of the Act of the 28th of March, 1814, and the 3d section of the Act of 10th March, 1817, being the same substantially, with the ■ exception that the Act of 1814 refers to the purchase of 1768, and the Act of 1817 to the purchase of 1784. We therefore charge you-that *a preemption right to vacant lands of the Commonwealth can be acquired by settlement since the passage of the Act of 10th March, 11817, which was intended merely to change the price of land in the purchase of 1784, and to permit warrants to issue for vacant lands without settlement, and that a warrant surveyed upon land held by a bond fide settlement would confer no title on the warrantee, and would not affect the claim of the settler.”*
    He charged that though the warrant was descriptive, and the purchase-money and fees paid, and though Spencer had notice, in 1847, of the plaintiff’s claim, and also in 1849, before making his improvement and settlement, yet as no survey was made on the warrant till August, 1850, nearly fourteen years after it was issued, no sufficient reason being shown why the survey was not made, and the plaintiff never having taken possession or improved any portion of the land, it was a case of abandonment, falling within the rule stated in the case of Strauch v. Shoemaker, 1 W. Ser. 116; and Wilhelm v. Shoop, 6 Barr 21, and other cases. He further charged that under the evidence, if the jury should be of the opinion that the improvement made by Spencer, commencing in November, 1849, and continued, constituted a bond fide settlement, it would be an intervening title, having priority over the plaintiff’s warrant and survey.
    As to a settlement, he quoted from the 8d section of the Act of 80th December, 1786, and added, that it was not necessary that the claimant himself should reside on the land; that he may make his settlement through the agency of another, and continue it by his tenants; that there was no fixed rule for determining the degree of diligence with which an improvement must be prosecuted in order to preserve the settlement claim; that each case must depend on its own circumstances; that reasonable diligence must be used, and what constituted it was to be decided by the jury. There must be the intention of residing permanently, and of deriving from it, by cultivation, the means of supporting a family, and not a residence manifestly to derive profit from the timber upon it. The object of Spencer in entering upon the land was referred to the jury, and if it were merely to strip the timber off the land and then abandon it, he had not acquired any right by settlement.
    Verdict was rendered for the defendants.
    Error was, in substance, assigned to the charge that a preemption right could be obtained. 2. That this was a case of abandonment. 3. That, notwithstanding a warrant is descriptive, and the purchase-money and fees paid, it must be surveyed and returned in a reasonable time — that what constitutes reasonable diligence is within seven years a question of fact for the determination of the jury; but if the survey be not made and returned within seven years, it is then a question of law for decision by the Court. 4. In charging that this was a case of legal abandonment. 5. That knowledge by Spencer of the 'issuing of the warrant could not affect the defendant. 6. In charging, that, if the improvement constituted a bond fide settlement, it would have priority. 7. In charging, that it was not necessary for the claimant, in person, to reside on the land. 8. To the charge on the subject of diligence. 9. To the rejection of the evidence mainly offered to show notice of the plaintiff’s claim by Leet, from whom Spencer purchased; and — 10. In not answering in the affirmative the plaintiff’s first point as to notice by Spencer of the plaintiff’s warrant.

      Williston, with whom was Wilson, for plaintiff in error.

      Sherwood and Guernsey, for defendant in error.
   The opinion of the Court was delivered by

Woodward, J.

When it is said that a precisely descriptive warrant gives title from its date, and a vague one from the time of survey, the qualification is sometimes added and always to be understood, if it he followed up with reasonable diligence. Whether descriptive or vague, the warrant imposes on the holder the duty of having it surveyed and returned into the surveyor-general’s office in a reasonable time, and his supineness is punished by postponing him to a more diligent, though subsequent, claimant. How long he may lie by and delay his survey, or, having made it, delay procuring return of it, has not been distinctly settled, unless Strauch v. Shoemaker, 1 W. & Ser. 173, be regarded as fixing the rule; but since the case of Star v. Bradford, 2 Penna. R. 397, a delay for seven years has been accounted ground of a legal presumption of abandonment. Ordinarily, abandonment involves a question of intention, and is for the jury on all the circumstances ; but where it depends on lapse of time, and there are no repelling circumstances in proof, it becomes, after seven years, a conclusion of law, to be declared by the Court.

In most of the cases in which these principles have been discussed and settled, it has not been shown that the purchase-money and office fees were paid to the Commonwealth on taking the warrant, and it is supposed that that circumstance when shown varies the general rule as to diligence. It is doitbtless much more difficult to presume a man’s intention to abandon land for which he has taken a warrant and paid, than land for which he has merely taken a warrant, and hence payment of purchase-money is a powerfully repelling fact when the intention to abandon is to be deduced from circumstances; but this fact loses much of its force, when abandonment results as a presumption of law, from lapse of time. Payment of purchase-money does not excuse a man from making survey and return of his warrant. If the cases are examined, it will be found that the rule which holds warrantees to reasonable diligence is founded not only in the interest the Commonwealth has in the purchase-money, but mainly in the public policy which demands clear ascertainment and record notice of what land has been appropriated, and by what metes and bounds it is claimed; and, therefore, it is as applicable to the warrantee who has paid for his land as to him who has not. The case of Roland v. Long, 1 Harris 464, is relied on for the supposed effect of payment of purchase-money; but, though well decided on its circumstances, it does not justify the distinction suggested here. Long took a descriptive warrant in 1815 — paid purchase-money and office fees — proved a survey duly made and returned in 1815 —took actual possession of the land, and cleared and cultivated two acres or more of it. The only defect in his title seems to have been that the return of survey could not be found in the surveyor-general’s office, and when, in 1849, Roland took a warrant, and Long discovered that his survey was lost, he caused another survey to be made, which was returned the same day as Roland’s. On these facts, with the additional circumstance that Roland had taken his warrant with notice of Long’s rights, the Court held that the latter was not postponed; but, in ruling that ease, Judge Rogers reasserted the general principles in these words: “An applicant is not bound to look beyond the land office; and, although a warrant may be issued, and money paid, yet if there be no return of survey in the office, the title under a junior warrant will be good. If he neglects to see to the return of survey for a longer period than seven years, it is at his own peril. He must be content to lose his land if another applies for it, pays his money, and has his title perfected. The state is interested that all the land surveyed should be paid for; and the public has a right to know what land has been appropriated, that individuals may not lose their money or labor in acquiring title to it. A knowledge of a warrant being issued is nothing, for the applicant has a right to act on the assurance arising from a want of a return of survey, that the original warrantee, for some cause, has abandoned his title.” So in Steinmetz v. Logan, 5 Watts 524, Judge Kennedy says, the question presented here is whether the owner of a warrant for land specially' described therein, upon which the purchase-money has been paid to the state, and a survey made thereon, without being returned into the surveyor-general’s office, or anything more whatever being done, either in regard to it or the land, for the space of nineteen years and upwards, is still to be considered as having a good subsisting right or title to the land included within the survey; or whether he is not to be considered as having abandoned his survey and claim to the land embraced within itand then the learned judge goes on to take a distinction between abandonment of the land mentioned in a descriptive warrant, and abandonment of the warrant itself, and rules the question propounded against the holder of the descriptive warrant who had paid his purchase-money and made his survey, but had failed to return it. Even where a deputy surveyor fraudulently omits from his return part of the land actually surveyed, it is the duty of the owner to apply to the surveyor-general or the board of property for redress within a reasonable time, or he will be postponed to an intervening right: Adams v. Jackson, 4 W. & Ser. 56. Authorities might he multiplied, hut these are sufficient to show-how imperative is the rule of vigilance which the law enjoins on warrantees, and that it is not relaxed on account of the prepayment of purchase-money. Though the warrant paid for he strictly descriptive, the owner if he find more vacant land may include it, or he may alter his lines, or abandon the land altogether and locate the warrant elsewhere. It is not till he makes return of his survey that the state can know whether she is paid for all the land appropriated, nor what its location and boundaries.

In the case before us, there was not only no return of survey but no survey within seven years from the date of the warrant. The warrant issued to Josiah Emery on the 26th November, 1836, and was entered in the location book of the deputy surveyor of Tioga county, but was never surveyed until the 5th August, 1850. Spencer’s settlement commenced in the spring of 1849, and according to the principles discussed, he acquired the best right to the land if he followed up his inceptive title with that degree of diligence which the] law requires of settlers. Of that hereafter. That the payment of purchase-money and office fees did not excuse the want of a survey and return is sufficiently apparent from what has been said; and if not, the doctrines advanced and illustrated in Chambers v. Mifflin, 1 Penna. R. 74, Addleman v. Masterson, Ibid. 454, Brentlinger v. Hutchinson, 1 Watts 46, Zerbe v. Schall, 4 Watts 138, Bunting v. Young, 5 W. & Ser. 188, Wilhelm v. Shoop, 6 Barr 21, as well as in the cases above cited, justified the Court in ruling as a conclusion of law that Emery after, so long delay, nearly fourteen years, had abandoned, if not his warrant, the land therein described, and left it open to appropriation by the next comer.

That the payment of taxes and the sale of the land as unseated do not help the title of the warrantee is shown by Strauch v. Shoemaker, where it is said that possession of the land and improvements made, constitute the only exception to the general principle that abandonment will be presumed after seven years’ delay to return a survey. In Roland v. 'Long there was actual possession —in this case there was none. The tax sale was void for want of jurisdiction, for, until appropriation of the land, the commissioners had no right to assess it.

Nor does the fact that Spencer had notice of Emery’s warrant weigh a feather in the case. Notice that a man has held a warrant more than thirteen* years without a survey, if anything, is notice that he has abandoned the land described in it, and is an invitation to the world to come and take it.

These observations dispose of all the assignments of error which relate to the plaintiff’s title. The evidence in the bill of exception sealed for the plaintiff related to the question of notice, and as the fact, fully proved by other evidence, was valueless to the plaintiff, he was not injured by rejection of the evidence offered.

Now as to the defendant’s title. That is founded in a preemption right which counsel say cannot be set up since the Act of 10th March, 1817. The 2d section of the Act of 22d April, 1794, had closed the land office as to the then new purchase against all except actual settlers and improvers; and the Act of 1817, without saying a word about actual settlers, reopened it to purchasers in general. Because a class of purchasers were admitted in 1817 who before had been excluded, and were carefully required to prove whether the land applied for had been improved or not, it is argued that pre-emption, which is nothing else than the right of the actual settler to become the purchaser, was cut up — an argument which, when deduced from the Act of 1814 against settlers south of the Ohio, Justice Burnside characterized in Stockwell v. Robinson, 1 Barr 481, as strange. It is no less strange as applied here. The actual settler has always been a favorite with the legislature and the Courts in Pennsylvania, and justly, for it is he who introduces civilization into the wilderness places; and an enabling statute which permits others to buy what he has not appropriated, would be grossly misapplied if construed to exclude his rights.

As to the acts and intentions necessary to constitute a settlement, and the diligence with which they are to be pursued, the instructions given were according to t.he authorities. Where they are found to exist, as, under proper instructions from the Court, the jury found in this case, the title of the settler relates back to the time of entry, and the first stroke of the axe. In this instance that was more than a year previous to the plaintiff’s survey of his warrant. The direction complained of in the 7th assignment of error was justified by the ruling of this Court in several cases: see Adams v. Jackson, 4 W. & Ser. 55; Reed v. Dickey, 2 Watts 459; Black v. Moore, 1 Barr 348; Jones v. Broomfield, 2 Barr 55.

On the whole, we see no error in the record, and the judgment is accordingly affirmed.


author: Lewis, J.

text:
    Olwine versus Holman.
    1. One claiming under a deed is bound by the reservations and recognition of title in another which is contained in it.
    2. When a vendor sells a piece of land which is enclosed with his other land and the piece sold continues to be enclosed and used and occupied by the vendor as before, such occupancy will be deemed to be in subservience to the right of the vendee and not adverse thereto, unless the intention of the vendor to hold adversely be manifested by some act of hostility to the title of the vendee. See also 7 W. & Ser. 160.
    3. The owner sold a lot of ground in 1814 which was then enclosed in a field with other ground belonging to him, and it so continued till 1831 when he conveyed the farm of which the field formed a part to another, with a reservation of the lot previously sold: Held, that such conveyance was a recognition of the title to the lot previously sold and was conclusive against the last grantee that the former possession of the lot was not adverse.
    Error to tbe Common Pleas of Chester county.

    This was an action of ejectment by Maria R. Olwine v. William W. Holman, who had for his guardians George Baugh and H. Neff, to recover the undivided half part of lot No. 47, in the town of Bath, at Chester Springs, Chester county; and also the undivided half part of the one hundredth part of the Bath lot in said town, which lot contained 101 perches and fifty-nine hundredths. The plaintiff claimed under deed to her by Abraham Olwine, dated 18th February, 1852.
    The claim was under James Bones, who at one time owned a tract of 152 acres, on which was the Yellow Springs, now called the Chester Springs. In 1814, he had a town laid out on this tract, which he called “Bath.” The lots were 101 in number. The lot which embraced the spring was called the “ Bath Lot.” The others were numbered from 1 to 100. He determined to grant with each lot conveyed a right to the Bath lot. He disposed of a number of the lots, and with each one conveyed he granted the one-hundredth part of the Bath lot. On the part of the plaintiff, it was contended that the deed conveying each lot, also conveyed a fee simple title to the undivided one-hundredth part of the Bath lot; whilst on the part of the defendant it was contended that the right granted was a right appurtenant to each of the 100 lots, viz. a right to go upon the Bath lot, and use the water of the spring.
    A portion of the lots was disposed of by a lottery, and lot No. 47 was one of them. The title exhibited on part of the plaintiff was as follows :—
    A deed from James Bones and wife to Jacob Nailor and James Dilworth, dated 27th November, 1814, for lot No. 47, and the undivided hundredth part of the Bath lot, to hold as tenants in common.

      This deed was recorded on 9th April, 1824.
    2. A deed from the sheriff of Chester county to Abraham Olwine, dated 11th March, 1830, for the interest of Jacob Nailor in the said premises.
    3. A deed from Abraham Olwine to Maria R. Olwine, the plaintiff, dated February 18, 1852, for the interest obtained under the sheriff’s sale and deed.
    The defendant claimed under the statute of limitations, which to be effective it was necessary should go back to February, 1831, the action being brought on 23d February, 1852.
    It appeared that some of the lots conveyed by James Bones were fenced and built upon. A majority of them were not fenced separately, but were used for farming purposes by Bowes, and so used until 1830. This was the case with lot No.,^7. In 1830 Bones removed from the farm, and Anthony W. Olwine, — who was his son-in-law, — in April, 1830, took possession of the premises which Bowes left. The character of the agreement under which he entered, did not appear. Afterwards Bones and wife, by deed dated 14th April, 1831, conveyed to said Anthony W. Olwine- the tract of 152|- acres, being the same farm on which the lots had been laid off; but in this deed were reserved thirty-four lots, which had been previously conveyed by Bones to other persons, and lot No. 47 was one of those reserved, the same having been previously sold to Nailor and Uilworth.
    On the next day after the date of this deed, viz., on the 15th April, 1831, Anthony W. Olwine mortgaged the whole tract to Thomas Woodward for $7500, with a reservation of 24 of the 34 lots reserved in the deed by Bones; but lot No. 47 was not one of the 24. It had, with seven others, been inserted in the draft of the mortgage, but they were erased.
    To May Term, 1847, a fi. fa. was issued on a judgment of Woodward against Anthony W. Olwine for $500, and under this the mortgaged premises were levied upon, with the exception of the lots reserved in the mortgage. On an alias vend. exp. to February Term, 1838, the premises levied on were sold, and were struck off to Abraham Olwine, but he not having fully complied with the terms of sale, a deed -was executed for them by the she^ riff to Margaret Holman, who was the next highest bidder, conveying the mortgaged premises subject to the reservations therein. Margaret Holman took possession of the premises and of lot No. 47; afterwards had an expensive house built, partly on lot No. 47, and continued to occupy it till her death. After her death, it was, in 1850, taken by her eldest son, Frederick Holman, under proceedings in pai’tition; and he died in 1851, leaving his son William W. Holman, a minor, as his heir, who was the defendant in this suit.
    From the time that Anthony W. Olwine entered into possession of the farm in 1830, until 1836, he used lot 47 with the Bath lot, lot No. 47 not being separately enclosed, but being in one of the fields which was cultivated. The land was assessed in the name of Anthony W. Olwine till 1838, when Mrs. Holman took possession. In 1836, Anthony W. Olwine sold the undivided half of the spring property to Joseph Wood for above $7000. In this sale the half of lot No. 47 was included. In some months after-wards, Olwine and wife, and Wood, united in a sale to Horace Weeks for $42,000. This sale purported to be of the whole tract of 152 acres, reserving about 12 lots, lot No. 47 not being included in the reservation. Subsequently, the sale under the mortgage took place as the property of Anthony W. Olwine.
    Haines, J., in his charge to the jury, observed that Anthony W. Olwine used the property as his own — paid taxes, and, on two occasions, sold it as his own. He expressed the opinion that the evidence, if believed, was sufficient to establish an adverse possession of the lots in dispute — that this was a question for the determination of the Qourt, and he instructed them that a hostile possession, for a period of 21 years, had been shown on the part of the defendant. That the Bath lot was in the same category as lot No. 47.
    Two points had been submitted on part of the plaintiff; the first of which was, that the possession of one tenant in common is the possession of the other, and to constitute ouster so as to give title by 21 years’ possession, the possession must commence by some clear, open, positive, and unequivocal act, amounting to an open denial of the right of the co-tenant. The 2d was, that no such ouster had been shown by the defendant.
    As to the first, he observed that the jury, under the circumstances referred to, might presume an actual ouster, though none be proved; and he disaffirmed the second point.
    Verdict was rendered for the defendant.

    It was assigned for error: 1. That the Court erred in charging that A. W. Olwine held the property adversely. 2. That in the opinion of the Court the evidence was sufficient to establish an adverse possession for 21 years of the lots in dispute. 3. In charging that the Bath lot stood in the same category with that of Lot 47. 4. In disapproving the plaintiff’s second point. 5. In charging that A. W. Olwine mortgaged lot No. 47 to Thomas Woodward. 6. In charging that Abraham, Olwine concealed his title to the said lots, and suffered them to be sold as the property of another.

      PennypacTcer and Hirst, for plaintiff in error.
    Olwine’s possession, during the first year he occupied the farm, was under Bones — not adverse or hostile. In April, 1831, Bones and wife conveyed to Olwine, excepting lot No. 47. Olwine, being a party to the deed, recognised an outstanding title to lot No. 47. He had no possession of it separate from the farm, and did nothing to challenge the right of the true owner. He returned for taxation the first year of his residence 66 acres of land, and four lots separately, which was about one-fifth less land than was in the tract. Lot No. 47 was not returned separately for taxation. It was further said that James Dilworth conveyed his half of lot No. 47 to A. W. Olwine by deed dated 1st June, 1828; and that A. W. Olwine conveyed such half to Jesse Griswell by deed dated 26th March, 1829; and that these deeds were recorded in 1829. It was alleged that this conveyance to Griswell of one half of the lot, was evidence that A. W. Olwine in 1880 did not make adverse claim to it. Possession follows the legal title. When a person is in possession under no recorded title, the possession is notice of every interest which the occupant claims. But if he has put a title on record, his possession is .referred to that title, and he is considered as holding under it: 5 W. & Ser. 429; 6 Ser. & R. 185.
    The evidence does not show that during the first year of Olwine’s residence at the Springs he asserted any ownership of the lot. There is not distinct proof that he then cultivated it, or paid taxes for it. The lot lay in the corner of the field, and if he did cultivate it it was as a part of the field. The lot not having been fenced separately and no exclusive possession being taken, the occupation was not adverse: 3 Harris 526; 7 W. & Ser. 154-160-1. His occupancy was like that of Bones, during which Nailor and Dilworth and those claiming under them were confessedly the owners.
    As to the third specification. It was submitted that there was no evidence in the case to justify the Court in charging that the plaintiff had lost her title in the Bath lot by ouster. In relation to it the extent of the evidence was, that the occupants of the two hotels exercised acts of ownership over the Bath lot by using it. The occupants of the hotels were tenants in common of the Bath lot along with others. It was open and accessible to all who chose to use it. As between tenants in common, who have unity of possession, in order to constitute adverse possession there must be an actual ouster, claiming exclusively: 10 Ser. & R. 182; 9 Barr 227; 1 Jones 189; 2 W. & Ser. 299; 3 Watts 77. No ouster was shown.

      Hichman and Darlington, contrá.
    It was contended that the defendants had such a possession of the lot No. 47 and Bath lot, as justified the jury in finding for them. It was not necessary that Bones, prior to 1831, should have declared that he held in hostility to the true owner. If a person enters into possession of land, and holds it, without more, the presumption is that he claims title. It was alleged- that a possession exceeding 21 years, under such circumstances, would give title: 2 Watts 27, Rung v. Shoenberger; 6 W. & Ser. 318; 1 Jones 195; 9 Watts 567.
    It was said that though there was a distinction taken in books between adverse possession and ouster, as between tenants in common, there was no real difference in the legal effect of the two: 1 W. & Ser. 191; 10 Ser. & R. 188.
    In the mortgage to Woodward lot No. 47 was not excepted.

      Abraham Olwine, the grantor of the plaintiff, lived near the spring, and could not be ignorant of the fact that he never had enclosed lot No. 47, or paid taxes upon it, and that it was occupied and farmed by his brother Anthony.
    , The act of mortgaging, the sales to Wood and Weeks, and the sheriff’s sale, were notorious and of record. Abraham knew that Mrs. Holman was in possession of lot No. 47 after the deed to her, and was erecting a large house partly on it. He knew that he himself was indebted and insolvent; and for nearly 22 years he made no claim of title.
    In another case to which allusion was made in the counter statement, it was contended that a grant may be presumed from facts and circumstances, and reference was made to 10 Ser. & R. 390; 1 Greenleaf Ev. § 17; 4 Pick. 245; 7 Wheaton 59; 11 East 56; 1 Barr 434; 7 Johns. Rep. 556; 3 McCord 340; 2 Jones 312; 9 Watts 442. The facts and circumstances alluded to were— 1. That, after the conveyance made by Bones in 1814, of the lots to which the Bath rights were attached, the lots remained unclaimed by any act of the grantees till 1838, when the sheriff’s sale took place. 2. That the grantees made no improvement on the Bath lot or paid taxes on it. 3. Bones when he disclaimed title to certain of the lots assumed to own the Bath rights, and to convey them to A. W. Olwine, as against Abraham Olwine, his son-in-law. 4. The mortgage by A. W. Olwine. 5. That the Bath rights were not reserved in the sheriff’s sale. 6. That Abraham Olwine was insolvent from 1838. 7. That no claim was made for the Bath rights from 1838 till suits brought in 1852. It was contended that such circumstances, in connexion with the lapse of time,- were sufficient to raise a presumption of a grant of the Bath rights.
   The opinion of the Court was delivered by

Lewis, J.

The plaintiff in error exhibited on the trial below a complete paper title to the land in controversy. The defendant theis# relied on the statute of limitations. This ejectment was brought on the 23d February, 1852. The adverse possession must therefore go as far back as the 23d February, 1831. But how are the facts ? Both parties claim under James Bones. On the 28th November, 1814, James Bones conveyed the ground in dispute to Jacob Nailor and James Dilworth. On the 14th April, 1831, James Bones conveyed to Anthony Olwine a farm of 152J acres. This tract included within its boundaries certain lots of land which had been previously conveyed by James Bones to other persons, among these, lot No. 47, being one of the lots in dispute, but in that conveyance James Bones expressly reserved from the eonveyance to Anthony W. Olwine, lot No. 47, the same having been previously sold to Nailor and Dilworth. This deed is not set forth in the paper-book, and we therefore take the reservation from the statements of the parties and from the facts given in the charge of the Court. The defendant below claims under Anthony W. Olwine, as well as under James Bones, and is therefore bound by all that is contained in the deed between these parties of the 14th April, 1831. This deed is, in judgment of law, a recognition of the title derived from James Bones, prior to the conveyance to A. W. Olwine; and, if executed by the parties, is conclusive upon the question of adverse possession against Olwine, the grantee, and all persons claiming under him by title subsequently derived. Whatever may have been the state of the possession before the execution of that deed, it ceased to be adverse to the legal owner at that time. It is true that if a complete title had been acquired by 21 years’ adverse possession before the execution of that deed, the recognition of title in others contained therein would not have concluded the rightful owner; but when no title had at that time been acquired, when it was only in process of acquisition, and when the acquisition depended altogether upon the existence and duration of an adverse possession, any act of those whose privilege it was to keep up such possession, showing conclusively that it was not kept up, is decisive. If the continuity of the possession be broken for a single day before the 21 years have elapsed, the previous possession goes for nothing, and the wrongdoer must commence de novo.

Entertaining this view of the case, it does not seem necessary to consider the nature ’of the possession which existed previously to the 14th April, 1831. But even if the case depended upon that possession, unembarrassed by the deed of that date, we do not see how its character is shown to be adverse. When a vendor sells a piece of land enclosed with his other land, and the piece sold continues afterwards to be enclosed, and used and occupied by the vendor as before, such occupancy will be deemed to be in subservience to the right of the vendee, and not adverse thereto. This principle was announced in Burkholder v. Sigler, 7 W. Ser. 160, and we have no hesitation in reaffirming it on the present occasion. A vendor, after conveyance and before delivery of possession, is to be regarded as a trustee for the vendee, so far as regards the possession, just as he was a trustee of the title before conveyance. If he wishes to change the character of the possession, he must manifest his intention by some act of hostility to the title of his vendee, plainly indicating to the latter the intention to deny his right and to hold adversely to it. We have no evidence of such intention during the time that Bones held possession. Nor is there any evidence that Olwine’s possession, before the conveyance, was of a character different from that of Bones. We see nothing to show that he was anything more than a tenant of Bones. His subsequent purchase from Bones, and the circumstances under which he came there, tend to repel every presumption that he held in hostility to the title so purchased. Tibe first act of hostility to the title of the plaintiff below is to be found in the mortgage which Olwine made to Woodward on the 15th April, 1881. Even this is susceptible of explanation. It was perfectly proper in Bones to reserve lot No. 47 from his conveyance to Olwine on the 14th April, 1831, because the former did not claim any title to it, and did not intend to convey it; but when Olwine, the next day, was about to grant a mortgage to secure a debt to Woodward, it was equally just that lot No. 47 should be included, because Olwine was the owner of a moiety of that lot by virtue of a previous conveyance from James Dilworth, of the 1st Jime, 1828. He was a tenant in common with the person from whom the plaintiff derives title. The proper course of describing the extent of his interests ought to have been adopted, but the omission to do so may have been from carelessness, and not from any intention to claim the whole of the property. Be that as it may, the claim to the whole, even if then made, came too late for 'the purpose, because the ejectment was brought within twenty-one years from that time.

The Bath lot seems to stand in the same category with lot No. 47. There was no evidence from which the jury could properly find an adverse possession of either for the period of 21 years. It is of the utmost importance that land titles should be held by rules of property not likely to be varied by the feelings or prejudices growing out of each particular case. In all cases where the facts are clearly ascertained, and the question is one of law merely, the Court should take the responsibility of deciding it. The title of the rightful owner should be protected with unshaken firmness. Under the evidence in the cause, the jury ought to have been told that the plaintiff was entitled to recover.

Judgment reversed and venire facias de novo awarded.


text:
    Charlotte Street.
    1. "Under the Road Act of 1836 no review is allowable where there has been no report either in favor of or against the road or street asked for.
    2. By the extension of a straight street is to be understood its continuance in a straight line.
    3. The terminus of a street in Lancaster was sufficiently indicated in the petition for its extension from its northern termination at James street to the Lancaster and. Harrisburg Turnpike Road. in. the said city.
    Certiorari to the Quarter Sessions of Lancaster county.

    To April Sessions 1852, a petition was presented to the Quarter Sessions of Lancaster county, alleging inconvenience for want of the. extension of Charlotte street, in the city of Lancaster, from its northern termination at James street to the Lancaster and Harrisburg Turnpike Road, in said city; and praying for the appointment of viewers to lay out the same. Viewers were appointed, who met, and were sworn ; but not agreeing, no report was made. The order was returned, and was endorsed, “filed August 6, 1852; no report.”
    To November Sessions, 1852, a petition for the appointment of reviewers was presented. Objection was taken, but reviewers were appointed. To January Sessions they reported an extension of the street. At April Sessions exceptions were filed, and in June following, at an adjourned Court, the report was set aside. On the same day, on motion of counsel, and without petition, alias reviewers were appointed. To August Sessions the alias reviewers reported the proposed extension. Exceptions were filed, hut in January, 1854, the report was confirmed, and certiorari was after-wards taken.
    The assignment of errors was to the effect, — 1. That the Court had no jurisdiction in relation to the extension of streets in the city of Lancaster. 2. That it erred in appointing reviewers on the failure of the first to report in favor of the extension; 3. In issuing the alias order of review without petition to that effect. 4. In appointing alias reviewers at an adjourned Court, the proceedings not having been continued over from the regular term. 5. That in the petitioner’s proposed extension the point of terminus was not designated with sufficient precision.

      Franklin, for plaintiffs in error.

      Frazer, contrh.
   The opinion of the Court was delivered by

Woodward, J.

Perhaps the fair construction, from a comparison of the several sections of the road law of 13th June, 1836, would be, that a review would lie after a report of viewers that the road designated in the petition was unnecessary for either public or private use, as well as after a report laying out the road by courses and distances; but however this might be, there is nothing in those sections to warrant a review where there is- no report. If viewers will not act, or cannot agree, the proper' course is to apply to the Court to set them aside, and to appoint others, and to obtain a continuance of the order from term to term till a report is made. In this case, the order of view was returned to the office, and endorsed “filed August 6,1852; no report.” To November Sessions, 1852, the same petitioners applied for and obtained a review which reported to January Sessions, 1853, the extension of Charlotte street, as desired by the petitioners. At April Sessions, 1853, exceptions were filed, and at an adjourned Court, on 22d J une, the report was set aside, and same day alias reviewers were appointed, who reported to August Sessions the extension prayed for, and whose report was finally confirmed. Now, the vice of these.proceedings was at the root. There can be no review until there is a report on the road prayed for, either for or against it; and here there never was a viewer’s report. Of course the alias review was no better than the review, for it stands on the same foundation, and that as unsubstantial as a shadow.

This disposes of the 2d and 3d assignments of error, and renders it unnecessary to pass on the 4th.

The legislature having at their late session expressly authorized the Quarter Sessions of Lancaster County to extend and open streets in the city of Lancaster, in the manner directed by the general road law of the state, it is unnecessary to decide, upon the first error assigned, whether that Court has hitherto possessed the power. As the proceedings before us must be set aside, any renewed attempt to extend Charlotte street, will be made under the late legislation, and be unembarrassed by the question of jurisdiction.

As to the 5th error, we are of opinion that a petition or report of viewers that speaks of the extension of a straight and open street, “ from its northern termination at James street to the intersection of the Lancaster and Harrisburg Turnpike Road, in said city,” sufficiently indicates the terminus. Extension of a line already defined as straight, implies that it is to be continued, or, in mathematical language, produced as a straight line to the point indicated for intersection, and this is certain enough for the terminus of a road or street.

The decree of the Court, confirming the report of the alias reviewers, is reversed, and all proceedings had upon the original petition set aside.