delivered the opinion of himself, and of Mr. Justice Smith, as follows:
This is an appeal from the decision of the Circuit Court of Mercer county, wherein a verdict having passed for the defend*574ants against the charge of the court, the chief justice awarded a new trial.
The merits of the case lie within a narrow compass. A warrant dated 21st April 1794, issued under the act of 3d April 1792, to the lessor of the plaintiff, for 400 acres of land, on the waters of Big Beaver creek, upon which a survey was duly made on the 25th May 1795, and afterwards returned, comprehending the premises in dispute. In May 1796, a cabin was built on this land by an actual settler, adverse to the warrant right, and a possession in consequence thereof has been continued, under which the defendants deduce their title. This ejectment was commenced on the 15th February 1802,. and William Anderson, one of the defendants, applied to the secretary of the land office for a vacating warrant subsequent thereto ; but his application was not permitted to be read in evidence to the jury. No other facts were disclosed on the trial.
The defendants have objected the want of a settlement and improvement on the part of Jonathan Jones, and have insisted that no entry or claim was made by him within the time limited for making thereof; and that no force or threats were used by the defendants, or any person under whom they claim, preventing him from making his settlement agreeably to the law. Was it then necessary that the plaintiff should shew this in evidence, before he was entitled to recover ?
In the case of the Commonwealth v. Tench Coxe, the majority of the court declared, that it did not lie in the mouths of men, who, supposing the warrants to be dead, by reason of the settlements not being made within two years after their dates, had taken possession of the lands, or a part thereof, to object the want of settlement and improvement on the part of the war-rantee. 4 Dall. 205. So on the feigned issue at Sunbury, it was agreed by the three judges then present, that if a person, under a pretence of being an actual settler, shall seat himself on lands previously warranted and surveyed, within the period allowed under a fair construction of the law, to the warrantee for making his settlement, withhold the possession and obstruct him from making his settlement, he shall derive no ben- L5/5 efit from this unlawful act. Ib. 242. If the party himself is the cause, wherefore the condition cannot be performed, he shall never take advantage of the non-performance. The same doctrine was asserted in this place in Hazard’s lessee v. Lowrey, in September term 1806, and again recognized by a majority of this court in Patterson’s lessee v. Cochran, at the last term here, on an appeal from my decision in Beaver county. In the latter case the expressions of the court are very strong: “ A defend-' “ ant having hindered a warrantee from making a settlement, “ shall not be permitted to defend himself, because a settlement “ has not been made. There are many cases, in which it has “been held contrary to equity and good conscience, and destruc-*575“tiveof morality, to permit a defendant m ejectment to take “advantage of a defect in the plaintiff’s title. A man who has “received land under a lease, is not permitted to controvert the “ title of his lessor. A mortgagee omits to record his mortgage, “and yet if one purchases with notice thereof, he shall hold the “land subject to the mortgage. It would be an outrage on so- “ ciety, a violation of the first principles of sound policy and “good government, to permit a wrong doer to derive benefit “from his own unlawful conduct.”
We might reasonably suppose, that after three decisions on solemn argument in Bank, and one other at a special court directed by the legislature to ascertain the true construction of th'e law of 3d April 1792, this question would be at rest. We trust, it will not be again revived. Unless the rule of stare de-cisis is adhered to in the administration of justice under a government of laws, all property must be rendered insecure.
If a warrantee is intitled to the exclusive possession of the land he has paid for, a person withholding the possession against him, obstructs and prevents him from making his settlement; he is the cause of non-performance of the condition. One must be little acquainted with the secret springs of the human heart, and not conversant in the history of the lands N. and W. of the rivers Ohio, Allegheny and Conowango creek, who would suppose that on the requisition of the warrantee, the actual settler would deliver up the possession of them. Can one solitary instance be produced of such obedience to the laws ? Can it be presumable then that such request would be attended with good effects ? As to force or threats being indispensably necessary to be shewn on the part of the warrantee, to have been used by the actual settler, the mild spirit of the law does not invite to adventures, which would naturally tend to a breach of the public peace. We therefore conclude, that as between the litigant * ñl *parties, the adverse possession is ipso facto, an illegal J prevention.
It has been further objected, that the entry of the actual settler was congeable for the condition broken. The contrary doctrine was asserted by us, on full argument, in Morris’s lessee v. Neighman and Sheiner, 4 Dali. 210, at the Circuit Court here, i.n May 1800, which was recognized in the Commonwealth v. Coxe, before cited, and what is now contended for, is contradicted by the plain express words of the act of 3d April 1792.
The provisions of the act of 3d April 1804, 6 St. Laws 511, afford a strong legislative construction, that a vacating warrant, or some substitute therefor, was necessary in such a case. But this objection, if even sustainable as a general proposition, is not applicable to the present instance. The warrantee was entitled to a period of two years after the ratification of the treaty at Fort Grenville, which ended on 23d December 1797, wherein he might make his settlement. But instead of allowing him *576the full interval of two years, the unlawful entry was made upon his lands within the period of seventeen months, by those under whom the defendants claim, viz. in May 1796.
Referred to in iWatts 101 where it is said that Jones v. Anderson was overruled' in part by Young v. Beatty 1 S. & R. 74; but see 5 Watts 395, 431, 501, and 551. Cited in 7 S. & R. 306.Lastly, it has been contended, that although no application was filed, or warrant of default issued in favour of the defendants, previous to their entry on the lands or previous to the commencement of this ejectment, yet it was offered to be shewn in evidence, that an application for a vacating warrant was filed in the proper office for the land, by one of the defendants, previous to the trial, which was overruled. The force of this objection depends on the true construction of the 1st section of the aforesaid act of 3d April 1804. “ Such application intitles “ the applicant to all the privileges and benefits, that an original “ or vacating warrant would intitle him to ” — but to no more.
But as a warrant taken out after the commencement of this suit would not avail the defendants, neither would the application which is substituted therefor. To construe it otherwise, we must drop part of the expressions of the act, which we are not justified in doing; and moreover, we should detract from the honour and justice of the legislature thereby. We have not the smallest hesitation in declaring, that we concur with the chief justice in the construction he has put on this section ; and I will only add, that I assigned the same meaning to it, at a Circuit Court in Beaver county in September 1806, in Shippen’s lessee v. Auchenbaugh, upon argument. An appeal was had therein, which was afterwards dismissed, but no objection was made to the decision upon that point.
Upon the whole we are fully satisfied that there is strong reasonable ground, and even certainty, to conclude, that justice has *not been done by the verdict which had passed in this r# cause; that the plaintiff is entitled to a new trial, and ■>'' that the judgment of the Circuit Court should be affirmed.
New trial awarded.