The opinion of the court was delivered by
Gibson, C. J.Granting forthe sake of the argument, what"we do not decide, that the right of action was in Timothy Pickering, as surviving trustee, and subsequently in his executors, the question is whether it can have been transferred to the plaintiff, not by.an open and direct assignment, for that will not be pretended, but incidentally, by a conveyance of the land for which compensation is demanded? Under a conveyance in 1830 from John Pickering, the heir, at law, and another in 1831 from the executors of Timothy Pickering, the plaintiffsues for compensation in the character of a Pennsylvania claimant of land certified and patented to Connecticut settlers in 1812, when undoubtedly the right to demand compensation by action, existed complete in those who were the owners at the time. According to a principle of the common law, a naked right of action is not assignable; and the principle is peculiarly applicable to a right of action against a sovereign, which is a personal concession. The state certainly never intended to make these rights, a subject of traffic, or to subject herself ,to(an action by those whose personal responsibility might be an. inadequate security for. the costs. Unless then, there was an estate in the Pennsylvania claimant, .undivested, by the adverse certificate and patent, nothing could passbyNis conveyance. Strictly speaking indeed, a right of action, perfect at the time, does not pass even as an incident of the estate; as for instance an action of trespass, which must be brought by him who was the owner at the time of the injury. An instance more in unison with the case before us, would be the asr signment of an action for the breach of a warranty, by a conveyance of the evicted land. But not to insist on that, I should deem the case not only a plain one on principle, but as being unattended with any particular difficulty in point of authority, were it not for the decision in Evans v. The Commonwealth, 2 Serg. & Rawle, 441, which it is necessary to encounter.
*515There it was assumed, that the divesture of the title is incomplete before compensation actually made, and that the measure of it is the value of the land at the trial, and not at the time of the eviction; and these propositions being the converse of each other, are in effect the same. The case differed from the present in this, that compensation or the means of obtaining it, was not provided for seve^ ral years ; and this was viewed as a material circumstance, as it would have been viewed below, had it not been considered that the design of the legislature in subsequently giving an action, was to remove the well grounded complaints of the Pennsylvania claimants, whose titles were posterior to the Decree of Trenton, in putting them, by relation of time, exactly on a footing with those whose titles were prior to it; and that such claimants were bound to talce the remedy on the implied, but necessary condition, of not contesting the legality of the previous proceedings, or claiming to. be put on more advantageous ground than were their fellows, whose titles had been indisputably divested. As a ground of decision, however, the want of a provision for immediate compensation was. ultimately abandoned for the broad ground of imperfect divesture, till compensation actually had; and this latter ground was necessary to the decision, under the circumstances of that case, as the conveyance, by force of which the plaintiff was suffered fo recover, was still subsequent tathe act by which the action was provided; and in that aspect the original withholding of the remedy could not affect the question: consequently it was decided on ground which, is common to all cases under these acts.
An intent to refer the question of divesture and value to the period of the trial, was thought to be inferrible from two provisions in. the acts themselves, as well as. from the nature and fitness of the thing. In the first place, compensation is directed to be assessed “without taking into view any improvement made thereon;” and these words were understood.as specially referring to improvements, made between the certificate and the trial. Had improvements not been made by the settler previous to the certificate, the inference, that the words were inserted to prevent the Pennsylvania claimant from obtaining compensation, by virtue of a supposed abiding ownership for improvements subsequent to the certificate, would have been a plausible one, as they would have had no other subject for-their operation. But it is notorious, that the lands had been improved by settlers under Connecticut for half a century; and the clause was evidently introduced to prevent the Pennsylvanian from claiming for the settler’s labor previous to the certificate, and not to provide for the infinitely less important subject of improvements between the certificate and an action that was expected to follow; and a. vast majority of cases did follow, hard upon it. That this was in, truth the object, is well known to those who are acquainted, with., *516the hiátorj1, of the controversy, and the legislation it occasioned. Another provision, particularly relied on', is the requirement of 'proof by the claimant “that he is fully, fairly, and exclusively'entitled to the land under the Commonwealth, except as against the person or persons claiming the same by virtue of á certificate or patent granted Under the authority of this act; and from this it has -been thought, that though the settler may hold under his certificate and patent against all the world, the Pennsylvania claimant is nevertheless entitled, by virtue of his primitive ownership, against every body else. 'According to this hypothesis, two distinct and’available titles to the same estate, or rather two distinct and available fee-simple , estates'in the same land, are supposed, to exist at the same time in different persons- — a state of things, which, if it’were. practicable, it certainly was not the object dr the policy of the legislature-to encourage. ' Unless the proceedings under the divesting provisions were an usurpation, and the patent void, the estate of the Pennsylvanian would ’be a barren one, unless in the single' event of a failure of inheritable blood on the part of the settler, and then the land' would escheat, not to the'Commonwealth, but to the Pennsylvanian— a consequence that no one will pretend would follow. As to his hopes of being eventually permitted to recover the land from the settler,' after the latter had paid 'for it, on the guaranty of the state, that would involve such a breach'of the public'faith, as to put every hope of any thing but compensation, out'of the question. For what purpose, then, can the legislature be supposed to have suffered the Pennsylvania title to remain?. Not to keep up the original irritation betwixt the Pennsylvania claimants and the settlers, by preserving the cause of it, in order to' frustrate the main'design of the act — the pacification of the country. ‘ The supposition is more-over drawn, not only from aliteral interpretation of the v ords, but in opposition to the evident object of the clause, which was to provide for conflicting pretensions under Pennsylvania, the plaintiff, being" bound to prove himself exclusively entitled at, the time of eviction, in order to secure the compensation to the true owner. In Miller v. Dwilling, 14 Serg. & Rawle, 442, á similar construction was attempted to be made of the act for the gradual abolition of slavery, in which it is provided that “every negro or mulatto child, borrf within this state, after the passing of this act, who would, in case this act had not been made, h.ave been born ¿ servant for life or a slave, shall be deemed to be, and shall be, by virtue of this act, the servant of such person or his assigns, who would in such ’ ease have been entitled,to'the service of súclr child, unto the age of' twenty-eight'years; whence an attempt to hold to servitude th.a child, notbf a slave, but of a servant till, twenty-eight, onthe pleaj ■ that but'for tide act in question, it would liave'b.een born a slave, because the mother would have been á slave. But it iva? determin*517ed, for convincing reasons, expressed by the Chief Justice who delivered the opinion of the court, that notwithstanding the literal and positive import of the words, none but the child of one who was actually a slave at the birth, could be held as a servant. So, notwithstanding the clumsy language of the legislature, the word “is” having been put for the words “would have been,” it is equally clear that no one was intended to be brought within the purview, who was not the Pennsylvania owner at the time of the certificate. The special provisions of these acts, then, leading to no definite conclusion in respect to the particular question, it is left to general considerations, arising from the nature of the proceedings.
By the constitution, no man’s property “shall be taken or applied to public use without the consent ofhis representatives, and wit'h-out just compensation made;” and, in accordance with this principle, the legislature has directed the compensation in cases like that before us to be just. On the principle of the common law, that performance shall be taken to have been perfected as to him whose negligence or refusal to accept prevented it: compensation is made, within the meaning of the constitution, whenever it is tendered. Unless the divesture were complete when the land was granted to the settler, and compensation tendered to the Pennsylvanian as assessed by the commissioners or to be assessed, at his election, by a jury, the patent could not constitutionally have protected the former from the title of the latter, and the proceeding would have been a mockery. Was it not complete, then, when an immediate right of action was given for it, whjhh would have been nugatory without a cause of action existing? If the origin of this cause of action is to be referred to the time of embracing the remedy, by the election of the claimant to consider himself for the first time disseised, then no divesture of title could be made without the consent of both parties, and private property could not be taken for public use at all, if the owner should persist iq refusing compensation. Such a principle would not only put it in his power to defeat the constitutional provision altogether, but give him the unreasonable advantage of choosing his time, and recovering according to the enhanced value at the time of the action. ' But the constitution and the legislature have directed a just compensation, which, it is supposed, can necessarily bemade but in reference to the value at the trial; for it was remarked; “If my land is to be valued according to the usual price ten years ago, and in the mean time the usual price has risen fifty per cent,, it is clear, that to pay me according to the price ten years ago, is making me but one half of compensation. ”
Nothing ever came from the author of this remark, without a Strong claim-to respect, and consistently with that, it is fair to say, that the very matter in controversy seems to have been assumed; for it cannot accurately be said that my land has risen in price, if it *518ceased to be mine before the beginning of the rise. Taking the title to have been divested ten years before, to have valued the land according to its price at the trial, would have been as unjust to the stale in the event of a rise, as it would have been to the claimant in the event of a fall. It cannot be supposed that the legislature intended him to boar a loss from depreciation; yet that would be inevitable, on the ground assumed. It is the value at the time of eviction that is material to the question; and it seems to me the principle of compensation for a covenant of warranty broken, is strictly analogous, and bears directly on the present case. That the measure is the value at the time of the warranty, results, not from the agreement, but the law, settled as it is, on the abstract principles of justipe'and the fitness of things, the value of the land at the particular time and not the time itself, being dependent on the terairof the contract. And the principle seems to be of universal application. In the Schuylkill Navigation v. Thoburn, 7 Serg. & Rawle, 411, the standard of compensation for a statutory licence to flood the land of an adjoining occupant, was deemed to be the value of the injury at the moment of its complete developement, and consequently without regard to an increase of it, by reason of a rise in the value of the land. The measure of damages too, for not delivering goods purchased, is their value at the day specified for delivery and not afterwards. Meason v. Phillips, Addison’s Pep. 248. Edgar v. Boies, 11 Serg. & Rawle, 445. The application of the same principle to the time of divesture, in a case like the present, can scarce be doubted; apd that time would seem to be the period when the claimant and the state first assumed the attitude of vendor and vendee, qr disseisor and disseisee. Notwithstanding, then, our sincere respect fo.r the admitted learning and ability of the judges by whom Evans v. The Commonwealth was decided, we are constrained to say, the remedy for compensation is personal, and not to be assigned directly or indirectly. No one pretends to suspect, that the conveyance was designed to operate on what was ostensibly to be the subject of it; and to suffer it to operate as the assignment of a mere right of action for the compensation given in lieu of the land, would be contrary to a maxim of the common law, qziod fierivetatur per directum, vetatur etiam per obliquum. The interpretation' may have been influenced by the extreme hardship of' the confirming acts as regards the Pennsylvania claimants, which I can duly, appreciate, having been among the suffers. But the principles of the law seem to point to a different conclusion. , Had the rule of that case become a rule of' property, I would have been the last man in the world to disturb it, but we are not aware, that any case has arisen, in which it would have been followed as a precedent, and there seems to be little danger of retroactive inconvenience, from the substitution of a different one. *519We decide no more than that compensation cannot be recovered in the name of the present plaintiff; but whether an action may not be maintained in the name of the grantor’s executors, is a question which it is at present unnecessary to decide, and about which we intimate no opinion.
Judgment of the court below reversed and judgment here for the defendant.