The opinion of the court was delivered
by Thompson, J.The plaintiff below and his father, from whom the land in controversy descended, had been in the actual occupancy of it by residence and cultivation for about thirty-five years prior to the alleged inception of title in the defendant below. There was no evidence on the subject of the residence of the defendant at any time on it. On the 27th October, 1853, he applied for the land as a settler, and claimed an improvement of one acre, made in 1849. The application was for thirty acres, excluding the plaintiff’s house-and about five acres of his improvements, and including a vacant house and *224three or four acres belonging to him. The father of the plaintiff had gone on the land in 1814, under the belief that it was covered by the Baldwin warrant, which he owned, and built a house, cleared, fenced, and raised grain on the land. The boundaries never were marked and defined. In process of time it turned out that it was vacant land, not covered by, but adjoining the Baldwin warrant, on which Wilmarth, Sen., was also improving and cultivating. Titus, discovering this, applied for a warrant for the same land, fixing the commencement of his improvement as already stated; the plaintiff continuing his‘ occupancy and cultivation as usual. A warrant issued on Titus’ application on the 2d day of November, 1858, on which an official survey was made of 30 acres and 117 perches, on the 17th day of the same month. On the 6th day of December, Wilmarth took out a warrant on an application filed the 21st day of November, dating his improvement in 1814, and procured a survey and return to be made on it of 35 acres and 136 perches. On the 13th day of December, having previously filed, a caveat against the acceptance of the return of survey and granting a patent to Titus. On hearing, the Board of Property dismissed the caveat, deciding in favor of the warrant and survey of Titus. This case was then brought, under the act of assembly, and is in effect an appeal from the decision of the Board of Property.
The only question raised by the defendant below was as to the original settlement of plaintiff’s ancestor. That if he entered on the land under a mistaken belief that it was covered by his warrant, he could not hold it as. a settler, although he had complied with all the requirements of the law. The learned judge ruled that “this would not preclude his acquiring the rights of a settler, provided all the requisites of residence and improvement were complied with.”
It might be a promising, as well as a new source of speculation in favor of persons not troubled with scruples a^out the means of acquiring property, to'have it established that a mistake like this would vitiate and destroy the effect of forty years of settled and deliberate purpose to appropriate lands by acts sufficiently indicative to give' title by law. But all such are destined to be disappointed in hopes of this nature. The settler probably mistook the true state of facts in regard to this land, and thought he had it by purchase. How long the i mistake continued is not known, nor is it material. He fulfilled all the requirements to entitle him to it by settlement. His mistake, resulting in wrong to no one, would not defeat his acts. His works were meritorious, if his faith was not. The land was subject to appropriation on condition of settlement. He performed the condition, and became thereby as fully entitled to its legitimate fruits as would another if he had *225done tbe same thing. Tho commonwealth, in such a case, deals with the acts of entry and appropriation, and not with mistakes or thoughts confined to a man’s own bosom. It matters not to her, so that the prescribed acts and conditions are performed, whether there were mistakes superinducing the undertaking or not. The pre-emption right follows the actual performance. Wilmarth had made the land his place of abode and manifested his determination of making it the means of supporting a family, by building a house and residing on it, and cultivating and raising grain on it. And thus it continued up to the time when the defendant procured his warrant. This gave a preemption right to the land, and entitled him to the warrant and survey and a recovery under them.
Milford v. Thompson, 7 W. 442, sustains the ruling of the court in a clearly analogous case. Possession was taken after survey of part of an adjoining donation tract under an honest though a mistaken belief that the land was embraced by the defendant’s lot. Possession was continued for twenty-one years without any évidence that the mistake had been discovered, and it was held that the defendant had title by the statute of limitations. Kennedy, J., remarking that, '“as to this (the. mistake), it cannot alter or change the nature or character of his possession more than it can the fact of his having it.”
There is no error in the record, and the judgment is affirmed.