The court continued the matter under advisement, and after-wards in September term, 1801, delivered the opinion of himself, and Smith, J. as follows :
The difference between a cause coming before the court on a special verdict, and a demurrer to evidence, is that in the former case, the facts must be distinctly found by the jury; but on a demurrer, the evidence only comes up: yet if the evidence be by parol, and any doubts arise as to the effect of the evidence, it shall be considered, that the party demurring had confessed all the facts, which such evidence tended to prove, or which the jury might fairly infer from the facts, in favour of the party offering the evidence. It is true, that at the trial the party offering the evidence, may insist that the party demurring should confess upon the record the existence of the several facts, before he can be obliged to join in demurrer, yet if that be not done, and there be a joinder in demurrer, the case comes before the court above, upon the evidence only; and that court will consider every thing as admitted, which the judge at Nisi Prius would have done, in order to compel a joinder in demurrer. The difference in the two modes is only matter of form ; as the court above can as well judge, what ought to be considered as admitted by the demurrer, as the judge below, and will regulate their judgment accordingly And therefore the motion for a venire facias de novo is denied.
*62At the importunity of the defendant’s counsel, the court agreed to hear another argument upon the merits of the titles In the mean while, the book of minutes of the Board of Officers, which formed a part of the record, was lost: this occasioned con-*<01 *siderable delay; but it was afterwards agreed, that the loss should be supplied by the notes taken by the court and counsel, and the argument came on during the present March term, 1804.
Arguments for the defendants. The defendants as tenants of ensign Morrow, must be considered in the same situation, as if captain Jacob Kern had been the lessor of the plaintiff. The adverse possession of the land is held to be notice to a purchaser, who buys the premises, without personal knowledge of a trust. 2 Bla. Com. 337. It was a matter of notoriety; and whatever is sufficient to put the party on an inquiry, is good notice in equity. 1 Atky. 490. Ambl. 313. 2 Fonbla. 155.
It appears by the evidence disclosed on the record, that the officers of the 1st and 2d battalions of the Pennsylvania regiment, meditated an application for lands in 1764, previous to the Indian purchase at Fort Stanwix, and subscribed certain sums for that purpose. Their services during the war were the alleged grounds of merit; and in January 1769, the governor having signified his assent to their request, his terms were acceded to.
On the 3d February 1769, a grant was made to them by the Board of Property, in nature of a special warrant, of 24,000 acres, to be taken up in bodies of 8000 acres each, to be seated and divided amongst them, according to their agreement among themselves, with this single exception, that colonel Clayton should have no share thereof. He probably had given some of-fence to the government. But the name of ensign Morrow is found in the list of appliers, and he was included in the proprietary concessions. He is afterwards recognized as one of the parties entitled by his brother officers.
No conditions were annexed to the terms of the original contract, except seating of the land and payment of the purchase money. In every other particular it was complete and absolute, and did not depend on will or pleasure. Though the grant was general, it operated as to the three bodies of lands when surveyed, to make all who had .joined in the measure, and were not excluded, tenants in common of the whole 24,000 acres, according to the proportions originally agreed upon, though the particular spots could not be defined. The division and allotment of the several tracts were to be made by the officers in a fair and equal manner ; but no power of excluding any individual was ever vested in them. This is analogous to the devise of lands to a number of persons, to be divided between them by A. and B., according to certain settled proportions ; it is clear, that in such a case, A. and B. could not, by their acts, divest the interests of any of the objects of the testator’s bounty.
*64^Previous to the meeting of the officers and surveyors at Harris’s Ferry on the 16th May 1769, the lands had been surveyed in three bodies, in pursuance of the original grant. It cannot be denied, that at this time, the interest of ensign Morrow in his portion of the lands, as a tenant in common with his brother officers, became absolutely vested in him, and he could only be divested of it by some legal act. To the governor was reserved no right of revocation of his grant. The letter wrote by Mr. Secretary Tilghman, under his authority, was a mere nullity. To the officers of the two battalions, belonged no right of exclusion. If it turned out that there was a deficiency of 419 acres of the lands directed to be surveyed, it should have been borne by all the parties interested, in proportion to their several shares. But it is repugnant to every principle of justice, that one officer should be enriched at the expence of another. Property and crime are matters distinct in their nature. A man, against whom a criminal charge is whispered, does not forfeit thereby even'an inchoate right. But if ensign Morrow had been convicted of the supposed rescue, he would not have forfeited his vested absolute right in the lands in question. The governor’s direction was, that it should be excluded from his share, until his innocence should be ascertained. The officers gratified the governor by assenting to Morrow’s sjhare remaining in suspence, until he cleared himself of the charge ; but his lots were drawn as well as the rest; and it appears by the evidence, that he obtained 216 acres of the larger survey made on the waters of Bald Eagle. After the alleged offence, the Board of Officers received 16s., which was paid on his behalf, as his quota of expences which had accrued ; and the survey of the lands in question is marked on the field notes of William Scull, as having been really made for him. These things would not have happened, if the officers had credited the charge and really meant to exclude Morrow at the time. His exclusion would have been absolute; his lots would not be drawn, nor any money have been received on his behalf; the survey of these lands would not have been made for him, nor would he have been let into a share of the Bald Eagle lands. In fact, it was not until after the discovery of the deficiency of the 4.19 acres, that any serious injustice was meditated against Morrow by his brother officers. On the 14th November 1772, the land before allotted to him, was assigned to captain Kern.
Even admitting that the governor once thought unfavourably of ensign Morrow, and on that account would unreasonably refuse to ratify his original conceptions, and also adopting the preposterous position, that he retained some kind of controul over his grant, and might withhold a patent in his favour, we *have strong grounds to conclude that he changed his sentiments. Morrow could not demonstrate his inno- ^ * cence without a trial; and it was not to be expected that he would originate an indictment against 'himself for the supposed rescue. It does not appear that the government instituted any *65prosecution against him, that any indictment was found, or, that he absented himself, and proceedings of outlawry were carried on against him. He was not called upon by proclamation of the governor to surrender himself to justice. This might have been done, though the forfeiture could not be thereby increased. From these circumstances united, and the acts of the other officers recognizing his right, the jury might reasonably infer that the opinion of the administration as to the guilt of Morrow had undergone a thorough change. The evidence conduced to prove it; and it is within the principle of Gibson and Johnson v. Hunter, which was adopted by this court in their decision on the motion for a venire facias de novo, made in September term 1801. The demurrer to evidence is a bold measure, and puts everything to risque.
It is confidently apprehended that no strained construction has been made of the evidence, nor any unwarrantable conclusions deduced therefrom; that ensign Morrow became vested with a legal right to the premises in question, under the grant, allotment and survey, which he has never forfeited; that he has made a settlement on the lands, and tendered all monies due for his patent; and, that he has a good title to the tract, whereof the plaintiff seeks the possession.
Arguments for the plaintiff. If cannot be denied that the lessors of the plaintiff have the complete legal paper title, and that the decision should be in their favor, unless an exclusive legal or equitable right to the tract of land, patented to Captain Jacob Kern, can be shown on the part of the defendants.
The meritorious services of the officers have been frequently sounded in our ears; but to whom were they rendered? Not to the late proprietaries. They were provincial troops, raised and paid by the then province. On the ground of right the officers had no pretensions. They well knew this and therefore applied for liberty to take up a large body of land by special license, before the office was opened, by way of favour and indulgence. The origin of their claim was neither warrant nor location, but a species of order different from the common mode of granting lands. Hence it would seem that the controul over this order remained in the governor and Board of Property, until the purchase money was paid and the settlements effected. At any rate, the lands were “to be divided amongst them and seated ^ “ *according to their agreement among themselves, and J “the concessions of the proprietaries to their petition.” Sundry future acts were requisite in order to a confirmation; and with respect to ensign Morrow, these contingencies never happened. The confirmation of the proprietaries could not take place until the allotments were made by agreements among themselves. There was an express exception by the proprietaries against Morrow before their private lotteries were drawn, and before any appropriations were made, until he would sub*66mit to a trial and clear himself of an atrocious .crime laid to his charge. Colonel Clayton had given some offence to the government and was refused any participation in the indulgence. ^ Ensign Morrow had been charged with a breach of the laws, and had thereby given offence to every sober mind, and before any appropriation was made to him notice was given that he was to receive no favours. Every after act in his behalf was repugnant to the will of the lords of the fee. Widely different, perhaps, might the case have been, if before such exception the allotment had been fairly made, and the party was ready to comply with the terms. This special order was grounded on no other consideration than the good will of the proprietaries. No money was paid upon it. If confirmed it was valid, but its execution could not be compelled. The assertion that the jury might have concluded from the circumstances relied on, that the governor had changed his mind as to the guilt of Morrow, is wholly unfounded. It appears from the book of minutes that the governor adhered to his resolution to exclude Morrow on the 14th November 1772. The demurrer only admits facts which the jury might fairly deduce from the evidence ; and here positive evidence negatives that inference.
On the 16th May 1769, Secretary Tilghman’s letter was read to the officers at Harris’s Ferry before the lottery was drawn. It was not to be expected from them that they should oppose the wishes of the government, and induce a risque of their own title. They unanimously resolved that Morrow should have no share of the lands in question until he cleared himself of the offence; but they allowed him a conditional chance in the lottery, and his property in the allotment to be made to him was declared to remain in suspense. He never submitted to a trial; the governor adhered to his first determination, and Morrow was afterwards entirely excluded, and the land in dispute was allotted to Captain Kern, by agreement of all the officers. By then- fundamental articles the board of officers were appointed their general agents in the division of the lands, and each individual agreed to be bound by their acts.
Kern unquestionably had an equal right to his proportion of *the lands with the other officers. If he had equal equity r^ with Morrow, his legal right ought to prevail. It is of no *-7 moment as to the question before the court, whether the officers acted right or wrong in their division, but whether an allotment of this land was made to Morrow absolutely, to the prejudice of Kern. If no such allotment has been made, the former has only an undivided interest in the 24,000 acres, and not a right to any specified portion of the lands, even considering the original concessions as irrevocable. The warrant of acceptance, as well as the book of minutes, shews that this land was allotted to Kern, and that he had paid the consideration money is very clear. The *67Board of Property therefore could only grant the patent to Kern, to whom the allotment was made.
Whether Morrow has a title to the 216 acres on the Bald Eagle, may come in discussion at a future day : but it is apprehended, that the tract marked in his name in the general survey, was drawn conditionally and to remain in suspense, equally with the tract now in dispute, though marked in the held notes of William Scull as surveyed for him ; and it is clear, that the deputy surveyors could make no appropriation of the surveys, unless by ordei of the officers in general, or the Board of Officers.
Another consideration appears to us to have weight. The purchase money under the original terms, was to be paid on the different tracts within fifteen months ; and whoever did not pay their purchase money, forfeited their shares of the lands surveyed, which might be granted over to others. In this case, no money was tendered to the Receiver General, nor patent demanded from the secretary of the land office. The proof is express and direct, that Reuben Haines, in February or March 1774, as agent and on behalf of ensign Morrow, tendered to the Board of Officers in Philadelphia the money for patenting the land in dispute, which was refused by the officers. This tender is wholly inoperative, having been made to the wrong persons, and above fifteen months after the lands were allotted finally to captain Kern.
Shippen, C. J.The court are called upon to try this cause on the demurrer to evidence. I will give my sentiments on the title in a few words : I think of it now as I thought when the event happened.
Governor John Penn, for whom I had a high respect, was greatly irritated at ensign Morrow, who was strongly suspected of aiding the rescue of the persons, charged with murdering the friendly Indians on Middle Creek. But I thought him wrong in the present matter. The Board of Property had granted a favour to the officers, including Morrow, in granting them a special 1 i-*(SR1 *cence to take up lands, in three large bodies before the •* office opened. A contract was formed thereby and entered in the books of the land office, which the proprietaries could not rescind. Though the officers had the first choice, they were bound to pay the usual price for the lands ; and after the concessions were once made, it was too late to retract the licence. The special circumstances under which the grant was made, do not seem to create any distinction between it and a location or warrant, except that on the latter the money would be paid down ; and it is clear to me, that the officers at Harris’s Ferry had no right to impose the terms of Morrow’s clearing himself from the charge, before he should be admitted to a share. It is admitted on all hands that he paid 16s., his quota of expences, and this tract was drawn as his lot in the lottery. A difficulty has been stated, that he has not paid his purchase money, nor tendered it to the proper persons within the proper time: but this in my *68idea, does not invalidate the first grant; and on the whole, I think the defendants’ title the best.
Referred to in 5 Binn. I52. Cited in 2 S. & R. 187 where the court says that the law with respect to demurrers to evidence, was well considered ¡n the case of Ross v. Eason. Cited in 8 Pa. 96 in support of the proposition that the law is well settled that every fact stated is to be taken as true against the person demurring. Smith’, J.I agree to the opinion delivered, though with great diffidence. The difficulty which strikes me, is, that under the terms of purchase, whoever failed in complying therewith, forfeited his share, and the lands might then be granted to others. This seems to distinguish it from the common modes of granting lands by warrant or location, in which there are no such clauses. It is like a legacy given on a condition in restraint of marriage, with a devise over: such subsequent conditions will have their full effect, and cannot be got over. 4 Burr. 2055.
Brackenkidge, J.On the merits of the case, I clearly agree the title to be in the defendants.
Demurrer overruled, and judgment for the defendants.