But I am willing to take up the first objection as an abstract legal question, detached from other facts. When it is said in the act of 6th March 1778, that the council should give possession of the lands sold, it must be understood, that there must not be an adverse possession at the time. It could not mean that the vendee should be put in by force, and with the posse comitatus. *One instance indeed presents itself of such an attempt. It was in the case of Hog Island, sold as the [*474 property of Joseph Galloway to Thomas Barclay; but gen. Thomas Proctor, the adverse claimant, had a field piece drawn to the spot, and resisted the force. The agents of the Supreme Executive Council were thus foiled; but they would certainly have persisted, if it had been thought by government that such violent measures had been justifiable. The construction I contend for is analogous to that put on the law of 1705, “for taking “lands in execution for payment of debts.” 1 St. Laws 67. There strong words are used by the legislature, of delivering over the lands of the debtor to the purchaser by the sheriff ; but the construction always has prevailed, that in case of an *474adverse possession, the purchaser is put to his ejectment. Many counsel have thought, that if it had been res integra, and the debtor had continued in possession, the sheriff might have dispossessed him, but not a third person, in favour of the purchaser, as on a fieri facias in England, in the case' of a term levied on; (Per Buller. 3 Term Rep. 298) but a different interpretation having generally prevailed, the legislature found it necessary to pass a law on the subject on the 6th April 1802, “enabling pur- “ chasers at sheriff’s or coroner’s sales to obtain possession.” 5 St. Laws 266.
But if the legislature had even intended to have given the council this power of taking possession by force, and had thus infringed the sacred right of a citizen to a trial by jury, the law would have been unconstitutional and void, according to the opinion of this court, delivered by Yeates, J. in the case of Austin’s lessee v. Baker, on the act of the 6th August 1784, and which was afterwards repealed on the 18th February 1785. All that the legislature could do in such a case would be, to empower the council to transfer the legal interest of the traitor to the purchaser, and to deliver to him the possession, if vacant; but if the possession was withheld by another, the right thereto must necessarily be subject to judicial decision.
2d objection. It is true, that the literal expressions of the law of 29th March 1779, respect ejectments brought against the purchasers, their heirs or assigns ; but the spirit and equity of the act reaches to cases, wherein they have brought suits against adverse claimants. The legislature intended to indemnify such purchasers against persons claiming lands by title paramount to the traitors; and in this view, it can be of no moment who commences the action, provided it be done within 20 years after the sale by the agents. I have attempted to shew, that the buyers are not entitled to be put into possession by force, and they have no alternative except bringing a suit at law. If *they had, after paying their money into the coffers of *475] the state, represented to council that their contract should be rescinded, and the money repaid to them, on account of their inability to deliver the possession, they would naturally have received for answer, that the merits of the contending titles must be tried at law before such a measure could be adopted. It cannot be said that Mr. Nesbitt has been negligent or inactive in pursuing his right. Thirteen years has he waged a legal warfare against the obstinate prejudices of a whole county, though to him the uniform result has been expence and vexation. The words are in the disjunctive, evicted or dispossessed.
As to the improvements, they have been but trifling; they were made by the tenants of Gordon, and those who originally came into possession under them; and if Nesbitt’s title had been sanctified by a recovery, he would have been entitled to all the improvements on the lands in controversy. The words of the *475law are, “that the person evicted, his heirs or assigns, shall be “paid the value of such estate at the time of eviction.”
There will be no difficulty as to the re-conveyance to the state if the court shall deem it necessary ; but it should be given at the time the money is paid.
The court declared, that there should be a re-conveyance made to the commonweálth of the 282-I acres, and were unanimously of opinion in favour of the plaintiff on both points.
Inquisition confirmed.