Deal v. McCormick

Gibson J.

1. There is no act of assembly in Pennsylvania which declares .that a warrant vests no title to the land it describes, unless a survey be made thereon within seven years from its date. The 5th section of the act of the 26th March, 1785, even were it prospective in its operation, would provide for a different case. But, though it is admitted the Judge erred, in stating that the defendant could'not make out a title without shewing a survey on his warrant within seven years from the date ; yet it is contended that, as from the whole case disclosed on the record the plaintiffs ought not to recover, they cannot assign for error a mistake of the Judge as to an abstract principle from which they have re-; ceived no injury. I take-the’rule to be, that error in stating an abstract principle, not arising' out of the1 evidence, and in no-wise relating to the caiise, shall not be taken advantage of by either party : for it would be impossible for such an error to have an effect on the event of the cause ; and so no injury could happen. But that is not the present cáse; The .jury were in effect, told, that let the plaintiff’s title in other respects be as it might, still without a survey within seven years, his warrant vested no right. The rule, thus laid down had a direct operation upon the evidence, and withdrew the attention of the jury from the other points ; and although, on a motion for a new trial, this misdirection might be immaterial, it appearing on the whole that the plaintiffs ought not to recover, yet on a bill of exceptions it is otherwise.

3. I agree fully with the Court, that the act of the board of property in attaching the survey made for the plaintiffs on the 20th April, 1796, to a warrant in their names calling for land in Fairfield township, on the other side of the Conemaugh, was not legal evidence that such survey was not made on the warrant under which they claim. It appears to , , , , have been done m an ex parte proceeding ; but in no case are the minutes of the proceedings of the board evidence of any fact, but what immediately passes before it; and there would be infinite danger of injustice if the law were different. The evidence on which that tribunal forms its judgment is for the most part irregularly taken, and depositions are frequently read when the adverse party had no opportunity to cross examine. Besides, the impressions of the board are secondary and inferior to the evidence from which it deduced the fact, and ought to be. rejected as not being the best evidence of which the case is susceptible.

8. Whether the second survey made by Moore on the plaintiff’s warrant was irregular and void, depended entirely, whether the prior survey by Ross was made on the warrant under which the plaintiffs claim; and in this point of view it was put to the jury. The law is well settled, that after a survey made and returned into office, a second survey, without an order of the board of property, is merely void. If the owner of a warrant be prejudiced by the fraud or mistake of the officer, the board of property will grant him relief, if no new right has attached itself to the land : but a re-survey, pursuant to an order of the board, will not affect an intervening claim : and this was stated to the jury. But on the first point, the judgment must be reversed.-

Duncan J.

The errors assigned in the charge of the Court are; 1. That the Court of Common Pleas erred in charging the jury, that by an act of assembly, a warrant, be it ever so special, affords no right to the land which it describes, unless a survey be made thereon, within seven years from its date, if another person shall, after the lapse of that period, acquire a right thereto.

2. In charging the jury, that the minutes of the board of property afford no evidence of the mistake; or that the first survey made for the plaintiffs was made on another warrant, and that these minutes form no evidence of the facts stated therein, and ought rather to be regarded as an act of arbitrary discretion, contrary to their - own rules in other cases.

3. In charging the jury, that the second survey by Moore, was irregular and invalid.

The act of assembly referred tó by the Court, it is presumed, must be the law of 26th March, 1785, entitled “ an “ act for the limitation of actions," to be brought for the in- “ heritance or possession -of real property the 5th section of which provides, that “ no person or persons, that now “ hath or have any claim to the possession of any lands, &c. “ or the pre-émption thereof from the Commonwealth, “ founded on any prior warrant, whereon no survey has been “ made, or in consequence of any prior settlement, improve- “ ment, or occupation, without other title, shall thereafter <c enter or bring any action, unless he, she, or they, his, her, i‘ or their ancestors, or predecessors, have had the quiet and peaceable possession of the same, within 7 years next be- “ fore entry, or bringing such action.” ,

It seems to be conceded by the counsel for the defendant in error,..that this provision did not extend:to this case. But it is contended, that it is an abstract proposition of the Court, no way affecting the merits j that the opinion, if right in all respects on the points bearing on the ■ cause, however erroneous the proposition may be, still this Court of revision will not do a vain thing, by reversing the judgment, and ordering a venire facias de novo, if on inspection of the whole record, they are satisfied of the right of the party who has obtained the verdict.

There is little doubt, but that this law was misconceived by the Court, and that the plaintiff’s claim, whatever it might be, was not bound by this limitation. For the act only embraces warrants issued before its passage, “ now hath.or have *l any claim,” and cannot by any fair construction be extended to warrants obtained thereafter, Lessee of Brice v. Currati, 2 Smith, 306. The act in no part declares a warrant void, which has not been surveyed within 7 years, and that no subsequent survey shall give it validity. For, most clearly, a warrant surveyed after the 7 years, on lands at the time of such survey unappropriated, would vest a title, as against one claiming under subsequent settlement or warrant. This record does not present to the Court a case of abstract legal principles, where the facts are clearly found by a jury, or admitted by the pleadings, in which, if the Court gave a right judgment, though for an erroneous reason, the judgment not he reversed. It is a general verdict, in which the deduction of facts from the written and parol évidence, the circumstantial and the positive proof, was fairly submitted to the jury. The defendant did not ground his defence on this limitation act, but went into other testimony, which he contended, established certain facts, which tended, to destroy the plaintiff’s title. The plaintiff contended, that the testimony did not establish these facts. The. jury then were to decide, whether' these facts were proved or not. But the whole effect might be destroyed in the minds of the jury, by the broad proposition laid down by the Court, which might be considered by them as amounting to the declaration of the law by the Court, that whatever might be the title of the plaintiff, there was an act of assembly which was a bar to his recovery, unless his warrant had been executed on this land, within 7 years from the time of its issuing. The fact that it was not so executed, was clearly established. If so, and if the charge of the Court was correct, it was unnecessary, and would have been idle, for the jury to inquire into any other facts; for let them find these facts as they might, the result would be the same. It is sufficient, however, if it was within the range of possibility, that it might distract the attention of the jurors, from the true merits of the case ; as was held in Snyder’s lessee v. Snyder, 5 Binn. 499. There is, therefore, error in this j and, however, in other parts of the charge, the cause was generally and fairly submitted to the jury on its true and real merits, yet this Court cannot determine, what influence this proposition might have had on the minds of the jurors. But it is the duty of the Court to decide on all points fairly raised on the record. It becomes necessary, therefore, to decide on the two remaining exceptions. I am of opinion, that any facts stated in the body of a decree, on which the decision of the board of property is founded, are not any evidence of these facts. Where the decision was an ancient one, and the witnesses who might be presumed to have established these facts, from the great length óf time, must have ceased to‘ exist, it is unnecessary now to decide, whether in such; case, these statements would not be some evidence to be weighed by a jury. But in a recent transaction such as this, I am clearly of opinion, that they are not evidence, prima facie or otherwise. The question decided by the board of property remains by the act creáting this tribunal, (the act of 5th April, 1792,) open to the parties, in as full and ample manner as if no determination had ever been given. But this was not a decision of the board of property, it was an ex parte order; and could not in any manner affect the title of the defendant, founded on a settlement, warrant and survey, returned many years before this order was made; and I am bound to suppose, that the board would not have acted on this application of the plaintiffs,to remove the-survey returned, and fix one on the lands of the defendant, without affording him an opportunity of á hearing, had they been informed of this intervening right. In this then there is no error.

The "third error assigned is, charging the jury, that the second survey by Moore, was irregular and invalid.

I do not see any just cause of complaint on the part of the defendant, to this part of the charge. For the Court submit it to the jury to decide, whether the first survey was fraudulently' made by the surveyor, with an intention to deprive the owner of his just right. If the jury found, that this survey was unfairly made, then the Court say, the owner, if he complains within a reasonable time of the injury done them, is not bound by it. I cannot see any thing that would be a greater inducement to fraud in the management of several warrants held by the same person, than to suffer the owner of the survey returned, to shift it on other lands, of his own mere motion,. without order or direction from the surveyor general, or board of property, under the pretence, that though, the survey was made and returned for him, yet it was returned on a warrant not intended. Surely if this is to be rectified, it should be done in some reasonable time, and by application to some proper authority. His warrant by the survey and return is functus oficio. The command of the ■ surveyor general to his deputy to execute and make return, has been obeyed; the authority of the deputy has been executed j his power is at an end. Such has been the course of decision. In the case of Drinker v. Holliday, before Shippen and Yeates, Justices, 2 Smith, 255, the rule is thus laid down; every survey will be presumed to be made by the consent of the applicant, unless the contrary appear; and. when his dissent does appear, he must malee an eárly complaint to the surveyor general. ' When a survey has been completed on ^e ground, a new survey cannot, be made without new directions. So in the case of Porter v. Ferguson, before Yeates and Smith, Justices, 2 Smith, 255, the legal presumption is, that the first survey was made with the full consent of the party, and shall conclude him, unless fraud or improper conduct can be justly ascribed to the deputy surveyor,' and complaint made, and followed up in a reasonable time. No benefit can be derived under a latter survey, unless by shewing the wárrant or order on which it was granted. The same law is laid down in Hunter y. Meason, % Smith, 256. If such be the law, on a survey executed, how much stronger is the case of a survey executed and returned ? It would appear, after the survey returned, no new survey, nor the extension of the lines of an old survey, can be made, without a ifew warrant, or order of survey j the former authority being functus officio, Nicholas v. Holliday, 2 Smith, 256. Before the return, the lines of. a survey made by mistake, may be extended, so as no injury resulted to other claimants, Biddle v. Dougall, 2 Binn. 38; In Evans’s lessee v. Nargong, 2 Binn. 55, the Chief Justice considers the law as settled, that the owner of a survey returned, has no right to make an addition, without an order of the land office; and if it were otherwise, it would be productive of great confusion and injustice. If an addition cannot be made, a new survey on other lands, without such order, surely cannot. If this latter survey was void, as being made without authority, I am decidedly of opinion, that the acceptánce and ratification of it by tbe board of property, cannot render it valid, where, as in this case, the defendant had acquired a right previous to such acceptance and ratification.

Judgment, however, must be reversed for the first error assigned.

Judgment reversed.