The opinion of the Court was delivered by
Many things are presented, in this voluminous record, which to me had appeared long settled, yet are here made the subject of exception and of alleged doubt. When I came into the profession, in 1795, almost all causes in which the title to lands came in question, were removed to the supreme court, and, after the circuit court was established, into that court; and until 1809, when that court was abolished, all such causes were tried before, at first, two judges of the supreme court, and afterwards, before one judge. M’Kean, Shippen, Yeates and Smith, were the judges in 1795; after McKean was elected governor, Brackenridge came on the bench. These men were eminent, as general lawyers, and some of them had more experience of the local land title of Pennsylvania, than commonly falls to the lot of man. The three first named were at the bar or on the bench, each of them, above half a century.
At a period when no reports of decisions existed, this experience was a matter of some consequence. From some remaining cases, it appears Mr Chew, the chief justice for a few years before 1776, was a sound lawyer; but, it seems pretty certain that nothing, approaching very nearly to a regular system of law, as to land titles, existed, until the men I have just named, or three of them, composed the supreme court, on the adoption of the present constitution; and for several years it was gradually growing into regular and digested form, and, about 1795 it had begun to assume, and, in 1800 had assumed, its present shape. But there was no person reporting the decisions of the nisiprius, or circuit courts. A motion for a new trial, or, after the circuit court was established, an appeal, could be had only to the supreme court, which then sat only at Philadelphia, and very few cases were carried to the court in bank. In 1805 a western district was established, to sit at Pittsburgh, and, in 1807 a middle district, at Sunbury, and then others. The counsel, for many years, took notes of the decisions; these were often cited, and the points settled were remembered more generally and more accurately than since it has become the fashion to take writs of error or appeals and to publish all the decisions. From 1807 until this time, some cases on land titles were carried to the supreme court by appeal, before 1809, and by writ of error after, but there are no detached points, and together, will not enable me to furnish a correct idea of the details, nor even of the general system.
At length, in 1817, Yeates’s Reports appeared, but at that time almost all the suits arising from conflicting original titles, east of the Alleghany river, had been settled, and those volumes, although containing the only record of that part of our jurisprudence, have been neglected too much by the profession, while every scrap, from the often very loose and unsatisfactory nisi prius decisions of England,
The act of the 9th of April 1781, established and organized the land office, under the commonwealth. By section one hundred and eleven of that act, it is provided, the secretary of the land office, receiver-general and surveyor-general, shall be entitled to receive such fees, from time to time, as heretofore have been allowed by law, until the same shall be altered by the legislature, and shall have power to appoint deputies or clerks to assist in executing the business of their respective offices, for whose conduct they shall be responsible, and copies of records, entries and papers of the said office* duly attested by them or their lawful deputies, under their hand and seal of office, shall be as good evidence as the original, by law* might or could be. The surveyor-general shall have power to appoint a deputy or deputies, in any county in this state, who shall have power to make and return into the land office, surveys of land only in the county for which such deputy shall be appointed, for the conduct of which deputy or deputies, the said surveyor-general shall be responsible.
This speaks of fees heretofore allowed, and the second section of the act of the 1st of April 1784, for granting lands, &c., says— The several officers of the land office are hereby fully enabled to do and perform every aict and thing incident, or any wise appertaining to their said offices, with respect to receiving, filing and entering locations (applications) granting warrants on the same, receiving the consideration, directing copies of warrants, receiving returns and issuing patents of confirmation as heretofore, agreeably to the former customs and usages of the land office.
Some doubts, however, were started, after almost all questions on original titles were settled, and on the 31st of March 1831, it was enacted, that copies of all records, documents and papers, in the office of the secretary of the commonwealth, secretary of the land office, surveyor-general, auditor-general, and state treasurer, when duly certified by the officers of said office, respectively, shall be received in evidence in the several courts of this commonwealth, in all cases where the original records, documents and papers would be admitted in evidence, &c. &c. Now, it is notorious, that one of the reasons, if not the principal one, for passing this law, was to give in evidence, extracts from the blotter or day book of John K^ble, who was chief clerk in the receiver-general’s office, for the purpose
In Dogherty’s lessee v. Piper, 3 Yeates 290-1, we find defendant gave in evidence a warrant, &c., dated 1762, a receipt for 10 pounds paid thereon. This was a receipt of Edmund Physic,receiver-general. Lessee of Nicholas v. Holliday, 3 Yeates 399, plaintiff claimed under a warrant dated the 6th of September 1762, on which 7 pounds and 10 shillings were paid into the office; this, again, was a receipt of the receiver-general. Those causes were reviewed and I was one of the counsel in them; and my notes show this; and I have seen the receipts of Mr Physic and of John Kjble given in evidence an hundred times, and no objection. The entry of money paid by either of those persons in the books of the land office, certified under seal, is evidence without proof of their handwriting. All bur deeds are acknowledged or proved before judges, justices, or aldermen. The signature of these officers is never proved, nor their commissions called for. The fact of their acting as officers, is prima facia evidence that they were so; perhaps under certain circumstances liable to be disproved.
In this case, one of the warrants under which title was claimed could not be found in the surveyor-general’s office, and a copy of an entry of the original application from the warrant book in the office of the secretary of the land office, had been sent to the surveyor-general’s office in 1S06, about the time patents were obtained. This, and the return of survey and patent were objected to, and also parol proof of the usage in the land office, to obtain a copy of such entry when a warrant is lost, and that it is never obtained until after careful search for the warrant and not finding ic.
This matter is not new in this state. In the above cases of Dougherty v. Piper, 3 Yeates 290, and Nicholas v. Holliday, 3 Yeates 399, the warrants under which one party claimed were not found, and such transcripts were obtained; these and the surveys were objected to but received. The first case was compromised. Holliday’s warrants were not to be found, and they had issued, as many others, about that time did, without the payment of any money. After being evicted, they brought ejectments; their warrants had some how got out of the proper place, and were found among some board of property papers, with a petition and minutes of a hearing before the board in 1774. At the subsequent trial, the fact that a great number of warrants had issued without payment of money from 1754 to 1764, was proved, and that no small portion of the best land in Bedford county was held by innocent purchasers, under such warrants, was made so apparent, and, also, that John Penn and the board of property, in his time, had recognised them, so as to justify the remarks afterwards made by C. Smith, vol. ii, 154, and this point in these cases ceased to be matter of contest, though the
It is, however, one thing to show that no warrant ever issued, and another and verjr different, to show that none can now be found in the surveyor-general’s office. A case of the first kind I have not heard of under the state. It has often occurred that none can be found, and when we consider, for instance, that Northumberland county extended north to the state line and west to the Alleghany river; that Lycoming was taken off, and the papers divided to it; then Centre, and Bradford, and Tioga, and M’Kean, and Potter, and Jefferson, and Armstrong, and Clearfield, and a division of the papers, on each division of a county; when we consider how often all the papers have been removed from house to house; how very often each bundle has been opened and a paper taken out to be copied, and the possibility, that in returning it, it may be put into the wrong bundle, it is to be wondered at, not that some are displaced and thus, for a time, lost, but that this has not occurred more frequently. If an application has been made, the money paid, an entry of a warrant in the proper book, a return of survey stating that it was made in pursuance of a warrant, the title is good though no warrant can be found, much more if a patent has issued.
A much contested matter, in this case, arose on the point whether the survej^s of the parties were made by the surveyor of the district, each alleging his own were made by the proper officer, and that the surveys of the opposite party were surveyed out of the district of the officer who made the surveys. The act of 1781, before cited, says, the surveyor-general shall appoint a deputy-surveyor in any county, who shall have power to make and return surveys, only in
And the act of the 4th of September 1793 says, all returns of surveys which have been actually executed since the 4th of July 1776, by deputy-surveyors, while they acted under legal appointments, shall be received into the land office, although the said deputies may happen not to be in offiee at the time of such return. These acts, though relating to former surveys, may be considered as indicative of legislative opinion. 1 admit that we find the expressions, in some cases, “ if the owner has paid his money to the deputy-surveyor, he shall not be prejudiced by the neglect of the officer, to make the return.” This may be true for a short time after a survey; it was going far enough to say so in suits brought in 1800, but it would be a misapplication of the rule to apply it to cases brought more than thirty years after the survey made. The office of surveyor-general is that to which all are bound to look, and do look, to ascertain if surveys are returned; and if a title appears regular there, and has appeared so more than twenty-one years, it ought not to be disturbed, especially in the hands of a purchaser, by ransacking the deeds of men, however respectable, who have not held the office of deputy-surveyor for more than a quarter of a century. The opinion of this court on this subject has been expressed in Mifflin v. Chambers, 1 Penns. Rep. 74; Star and Bradford, 2 Ibid. 395, and many other cases cited.
The act of the 3d of April 1792 has also, in section sixth, the provision , that a survey made by a deputy-surveyor out of- his proper district shall be void and of no effect; but it has always been understood and adjudged, that that act, from section three to section ten, both included, relates solely to lands north and west of Ohio and Alleghany rivers. The provision in section four, that each deputy-surveyor shall keep a book and enter all warrants which come to his hands, and the name, dates and quantity, &e., has never been considered as applying to a deputy-surveyor in any of the purchases prior to that of 1784; and if Mr Weidman kept such a book I have not heard of any other deputy-surveyor out of that purchase who did so. If he did so, he was manifestly neglectful of his duty in not returning it as an official document to his successor. To the surveyor-general’s office, or to that of the deputy-surveyor, persons are accustomed to look for information as to surveys. We have had this matter before us more than once; and I would say that where a
In this case the defendants have the first warrants, the first survey and the same neglect in procuring the return, yet returned in 1806. Plaintiffs did not pay the surveying fees until 1809, nor procure the return of survey to be filed until 1830. In the mean time the title of the defendants had passed through several purchasers and been pa
And here this opinion might close, but some bills of exceptions may be noticed. I have shown that our acts of assembly direct the business to be done according to the usages of the land office. This relates to the routine and forms of the proceedings, not to the essentials of a title as prescribed by express law. And where the manner and form of the proceedings is objected to, there is no other way of deciding on it than by the evidence of those who know the usual forms. The testimony of Mr Leech as to those matters, and of Mr Washman as to another matter of practice or usage ought to have been received, and the court ought to have directed the jury as to the effect of such usage.
The offer of the minutes and order of the board of property, on the 4th of February 1S29, which appear crossed on the minute book, and the testimony of Mr Crain and Leech respecting those proceedings are so immaterial that it is scarcely worth the time to notice them. It would have made no difference whether plaintiffs procured their surveys to have been returned at the end of thirty-three or thirty-four years. The one and the other was too great a delay; but we have been accustomed to receive all orders of that board respecting titles contested in court. The order itself states that it was made on the statement (not on the oath) of a third person. The reason given why the returns were not accepted was a very strange one, for returns were uniformly accepted and filed, though the deputy-surveyor had not paid to the surveyor-general the fee due him on each return. The fact that this order was not sent to the surveyor-general’s office, and that two crosses were drawn over it in the minute book of the board, were matters which could be only explained by parol; and any person who could give any account of this strange proceeding ought to have been heard. It might have been well to send for Mr Dickinson, secretary of the land-office in 1829, but the other competent witnesses might tell what they knew.
After the defendants had given in evidence the warrants, surveys and returns of the separate tracts in dispute, the general draft of the whole of defendant’s seventy-four tracts, brought from the office of the present deputy-surveyor, and admitted to be an office paper in the hand writing of Bartram Galbraith, the deputy-surveyor who executed defendant’s warrants was evidence to show the location by title had been shown. It was rejected, I have no doubt, as useless, and because the court were wearied with offers and exceptions on minor points.
The answers to the fifth and sixth points proposed to the court are alleged as errors. The judge below seems to have laid more stress on the dispute, in whose district the land lay, than in this case it deserved. I have remarked on this already; and on the sixth point, although strongly inclining against the plaintiff on account of his delay and negligence, he did not, as this court think he
Judgment reversed, and a venire de novo awarded.