This is an appeal from the Circuit Court of Huntingdon county. The verdict was for the defendant in conformity to the charge of the judge before whom-the cause was tried; and the plaintiff complains of an error in law in the charge.
To understand the matter, it will be necessary to give a sketch of the evidence. [The Chief Justice then stated the case at large.]
The judge of the Circuit Court was of opinion that Crogharis deed was of no validity, because it was not proved that he had any right to the land. He therefore gave it in charge to the jury, that the defendant’s title must rest on his possession and the applications entered by him, and on the abandonment by the plaintiff of his claim to the land. He thought, that taking into consideration the war, and consequent obstruction of judicial proceedings, the plaintiff could not be said to have abandoned, prior to the decision of the board of property; although the length of time, during which the defendant or those under whom he claimed had been suffered to remain in possession before that decision, strengthened the equity of the defendant’s case. But what appeared to the judge to be of very great consequence, was, the plaintiff’s declining to prosecute his claim before- the board, and suffering the defendant to pay his money, and lying by fifteen years after, while the defendant was improving the land. Under these circumstances, as neither plaintiff nor defendant had a perfect legal title at the time of-the decision by the board of property, and as the plaintiff has not yet obtained a patent, he was of opinion, that the equity of the case was against the plaintiff, and the defendant ought to be protected in his possession. The judge added, that the principle on which he decided, was new, and had never within his knowledge been recognised by any judicial de*119cisión, and it would therefore be agreeable to him that it should be brought before this court.
. In the argument before us, it has been contended on the part of the defendant, that at all events there ought not to be a new trial, because, independent of the point on which the judge charged in his favour, a sufficient title was made out under Croghan.. It is true, that if this court were satisfied from the whole evidence, that the plaintiff ought not to recover, they would not order a new trial, although there might have been error in the judge’s charge. It would be improper to give a new trial, when the result must be the same as in that which has past. But I see nothing to satisfy me, that there was a good title under Croghan. The judge was of opinion that his title was good for nothing. If he had a title, it certainly was not proved on the trial. I therefore throw that part of the case out of the question. The principle on which the judge gave his o'pinion in favour of the defendant is of very considerable importance. Property to a vast amount, in this state, is held under warrant and survey, where the purchase money has been paid, and under application and survey where it has not been paid. I shall confine myself to the case before us, which is a warrant and survey with the purchase money paid. There was a time when such estates were considered as personal property. But for many years past, they have been regarded as real estate, and there has been no question but the plaintiff might recover on them in an ejectment. In the case of Sims’s Lessee v. Irwin, the Supreme Court of the United States decided, that an estate of this kind, was in all respects the same as a complete legal estate. I cannot say, that there is a perfect legal estate without a patent. The commonwealth have a right to insist on the patent being taken out, and may recover in an ejectment if it is not done. But an estate of this kind is certainly stronger than that of a man, who has contracted for the purchase of land from a private person, and paid his money, but obtained no conveyance. In that case if the vendor sells to a third person who has no notice of the first contract, he shall hold the land, against the first purchaser. But a survey returned, is legal notice, and will prevail against a subsequent patent granted to a third person, *120whether he had actual notice or not. The commonwealth cannot withhold a patent from the owner of a survey on which the purchase money has been paid, unless he has relinquished his title. Such relinquishment must be clearly proved, for it is in its nature an extraordinary act. Where no money has been paid, there may be many reasons which may induce a man to relinquish his purchase. But why should one give up land that he has paid for? The omitting to take actual possession of the land, is no evidence of relinquishment, because many persons take up land, with a view of letting it lie unimproved for many years. But there is said to be something more in the present case; the plaintiff has deceived the defendant by not appearing before the board of property, and by not bringing suit for fifteen years. If the plaintiff has committed actual fraud against the defendant, he ought not to recover. I will consider that matter presently. But the delaying to bring an action against a person, who was informed of the claim before he paid his money or made his improvement, cannot be a bar, if the delay was for a length of time less than that prescribed by the act of limitations. To say that it would, is to set up a limitation in contradiction to the law. If the plaintiff has been guilty of fraud, it is quite a different thing, and gives room for a defence on different principles. Let us see then what proof there is of fraud. The plaintiff did not appear before the board of property. There was no fraud in that. He staid away at his peril, and the consequence was a decree against him. This decree he knew, and the defendant ought to have known, was not conclusive. But the defendant thought proper to rely on it, and paid his money into the office three days after. The defendant probably went on to make improvements, although there is no evidence of any thing of consequence being done by him. But this was his own folly; because he had full notice of the plaintiff’s claim, as appears by the caveat and proceedings before the board. I can perceive no evidence of actual fraud, nor any other ground for presuming fraud, than what arises from the delay in bringing an action. This appears to me to be negligence rather than fraud. But it is a negligence which the law permits, if not protracted beyond a certain period. The case then is reduced to this: The plaintiff had *121a tide which was not barred by the act of limitations; he had been guilty of no actual fraud, and the defendant paid his purchase money and made his improvements with notice of the plaintiff’s claim. .
Under these circumstances, I think the plaintiff ought not to have been barred of his recovery. I am therefore of ©pinion that a new trial should be granted.
Ye ates J.I have read with much care the opinion which has been delivered by the Chief Justice, and now express my concurrence therein. I will only add thereto, that should the verdict in this case be sanctioned by the court, we must in effect declare, that a man forfeits his title, however good, by not appearing before the board of property upon a caveat, though the adverse party is acquainted with his right: or that a time short of the period prescribed by the limitation act, shall operate as a flat bar to the plaintiff’s recovery; to neither of which propositions can I possibly accede.
New trial awarded.