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extinguishing the estate. At all events, this | ly recognized. To allow a different construcsection has the same application to lands within, lion, would be to make the statute of limitaas to lands without the manor; and the con- tions a statute for the encouragement of fraudstruction it has received with respect to the one, a statute to enable one man to steal the title of may serve as a rule for the other.
another by professing to hold under it. No The next exception to be considered, is to laws admit of such a construction. that part of the charge which declares the act The true question then is, whether the occuof 1705, commonly called the seven years law, pancy of those who held under these condi. to be inapplicable to the case. That act enacts tional warrants, was consistent with, or adver“that seven years' quiet possession of lands sary to, *the title of the proprietaries. (*289 within this province, which were first entered Upon the answer to this question, it seems diffion upon an equitable right, shall forever give cult 10 entertain a serious doubt. It is reasonan unquestionable title to the same against all, able to suppose that the practice of selling 287*) during the estate *whereof they are or lands on credit, and of issuing warrants in the shall be possessed, except in cases of infants,"&c. form of that which is inserted in this case, and
It has been contended that this act is merely of holding the legal title to secure the payment retrospective; and, in support of this opinion, of the purchase money, prevailed from the first it has been said, that for more than one hun proceedings under the charter, until the declaradred years it has never been resorted to in the tion of independence, a period of near one courts of Pennsylvania.
hundred years. In the particular case before To this argument it is answered, that the the court, credit was given from the year language of the act is prospective; that it pur- 1742; and we are not informed, and, conseports to be an act of limitations, that it is quently, have no reason to suppose, that this found among the printed statutes of Pennsyl indulgence was singular. The legislation of vania, and that its operation has never been de Pennsylvania on the subject, justities the connied, so far as we are informed, in any of the trary opinion; for we perceive among their courts of that state. During the irregularities printed statutes, several of a late date, giving which take place in the first settlement of a farther time to pay in the purchase money for country, an act of limitations is peculiarly de- lands sold before the 10th of December, 1776. sirable, and it would be strange if Pennsylva- These acts of farther indulgence, continued for nia should have remained entirely without one. such a length of time, furnish strong evidence The 16th section of the laws agreed upon in that the cases were very numerous to which England, enacts “ that seven years' quiet pos- those acts would apply; and show, 100, that in session shall give an unquestionable right, ex- the opinion of the legislature, no act of limicept in cases of infants,” &c. An act of the tations had barred the claim. Now, this pracsame import as to possession, without any ex. tice, in which the proprietaries, and a great ception in favor of infants and others, was portion of the population of Pennsylvania, passed in 1700, but was repealed in England, concurred, is incompatible with the idea that in 1705, in which year the act was passed the title of the purchaser became adversary to which is now under consideration. The people that of the proprietary, within six months of Pennsylvania had one uniform and con- after the date of the warrant of survey. In the stant wish on this subject. Neither the 16th case before the court, the survey was made, in section of the laws agreed on in England, nor fact, upwards of five years after the date of the the repealed act of 1700, can be considered as warrant. Is it conceivable that the surveyor, retrospective; and there is some difficulty in who *was an agent of the proprie. (*290 giving this construction to the act of 1705. tary, would have made the survey, had he supBut, the courts of Pennsylvania having never posed it to confer a title adversary to that of considered this act as having the effect of his principal? a title which would enable the 288*) *an act of limitations, this court is not holder, by remaining quiet only one year and inclined to go further than they have gone. If, three months longer, to set the proprietary at however, it were to be so considered, it must defiance, and to hold the land discharged from be governed by those rules which apply to acts the contract by which it was acquired. The of limitation generally.
very practice of holding back the title, and of One of these, which has been recognized in giving such extensive indulgence for the paythe courts of England, and in all others where ment of the purchase money, seems to demon. the rules established in those courts have been strate a general opinion that, so long as this adopted, is, that possession, to give title, must state of things continued, the title to the be adversary. The word is not, indeed, to be land was still in the proprietary, and the purfound in the statutes; but the plainest dictates chaser acknowled his title. The, occupation of common justice require that it should be im of the purchaser was with the consent of the plied. It would shock that sense of right proprietary, and, consequently, not hostile which must be felt equally by legislators and to his rights. The proprietary permitted the by judges, if a possession which was permis- purchaser to hold the land, subject to his sive, and entirely consistent with the title of claim to the purchase money; and the puranother, should silently bar that title. Several chaser held under the admission, that the cases have been decided in this court, in which land remained liable to the purchase money, the principle seems to have been considered as and that the proprietary might,at any disgenerally acknowledged;' and in the State of tance of time, assert his title toit, so far Pennsylvania particularly, it has been express at least as to secure his purchase money.
There seems to have been a mutual under1.-See Alexander Pendleton, 8 Cranch, 462 ; standing and a mutual confidence between 5 Wheat. Rep. 116; Ricard v. Williams, 7 Wheat. I have had it in his power to violate this con
How far the proprietary may Rep. 59.
fidence, by seizing the land, and refusing | commonwealth and the former owners, adopted to convey it on a tender of the residue of the the lines of the manors as the lines of partition purchase money, is a question which does not between them. This created no new title, but appear ever to have been determined, or ever to left *to the proprietaries their former (*293 have occurred. But, certainly, during this title, within the described boundaries. state of things, the purchaser could not be con- We perceive, then, nothing, either in the 291*] sidered *as holding a possession ad- law or the fact of this transaction, which tends versary to the title which he acknowledged. to show that the possession of the plaintiffs in
It has been contended that the survey of the error has been adversary to the rights of the manor was a determination of the estate under person under whom he originally claimed. the warrant, and the assertion of an adversary Having considered the act of 1705 as if it title, from which time the act of limitations be- were an act of limitations, all the reasoning gan to run.
which has been applied to that act, applies also There is certainly nothing in the fact itself to the act of 1785, on which the eighih excepwhich supports this proposition. All the trans- tion is founded. The several treaties formed actions of the parties contradict it. There is with Britain have a very important influence no fact which shows a disposition in the pro- on the time which has elapsed since the war beprietary to re-enter on any lands for which a tween the two countries. warrant had previously been granted; nor is • The opinion that the plaintiffs in ejectment any case of such re-entry shown, from the first have still a right, notwithstanding the acts of settlement of Pennsylvania. Several instances 1705 and 1785, to proceed at law, presupare mentioned, of grants completed on the poses their consent to the continuance of the common terms, within the manor of Springets-original title, created by the warrant; for if the bury, while it was considered by the parties as possession taken under the warrant or survey ' a manor. No inference, then, is to be drawn was not continued with the consent of the pro
from the facts in the case, favorable to the prietary, it immediately became adversary. and conclusion that the survey of a tract of coun. ihe act of limitations immediately commenced. try as a manor, was considered as determining If, then, there be any case in which this assent the estates created by surveys on warrants pre- is not to be presumed, that is a case in which viously issued, the conditions of which had the plaintiff in ejectment is barred by the act not been fulfilled by the purchasers. This of 1705 or 1785. must be a conclusion of law, from the single If, as the court thinks, the rights of the proact of survey, so inflexible as not to be influ- prietaries were converted, by long acquiescence enced by the intention with which that act was in the usage which must have been known to performed, and the opinion prevailing at the them, of selling the lands, as being liable only time, as attested by usage, or the argument for the purchase money; or by the 7th section cannot be sustained.
of the act of 1779; or by both united, into a But how is this conclusion of law to be sup: mere right to the purchase money, still the ported? The survey of a large tract of land remedy of proceeding *against the land [*294 cannot be considered as an entry on a smaller for the purchase money remains, and is not tract within its lines, as an ouster of the occu-taken away by the act of 1779. That act, hav292*) pant, or even as a *trespass on him. ing reserved ihe purchase money for the proHow, then, can such survey be considered as prietor, must, of course, be construed to reserve having any legal effect different from the in his remedy, unless it was expressly taken away. tention with which it was made? It is indis- It is not easy to point out any other remedy pensable to the argument, to maintain that the than this, by ejectment. The original purchaser mere act of survey does, of itself, in point of has transferred; and were his representatives law, show an intention inconsistent with the even still liable for the purchase money, which continuance of any conditional estate, within is far from being admitted, they may not be the limits of the manor. This the plaintiffs in able to pay it, if they could be found. It was error have endeavored to maintain; and for not on their personal responsibility, but on the this purpose have contended that a new title, land itself, that the vendor relied. His claim which they call the “manorial title,” and was attached to the land, and passed with it. which they say is distinct from the proprietary The remedy reserved is on the land, not on title, was created by the survey; that the plaint. the person. It would be difficult to form an iffs in error hold under the proprietary title; action at law against the person; and in Penn. the plaintiffs in ejectment, under the manorial sylvania, there is no court of chancery, even if title. Their claims are, consequently, adver- a bill in equity could be sustained. The remedy sary to each other.
must be by ejectment. But this argument cannot be reconciled with There are other exceptions in the record, the fact. No new title was created by the sur- which, though not pressed, have not been vey. There was no source from which title waived. It was, therefore, the duty of the could be derived, other than from the proprie court to examine them. The result of that tary himself. The survey was, not to give a examination is, that the only serious questions new title, but to separate a certain tract of in the cause are those which grow out of the land from the general mass, which was offered acts of 1705 and 1779. These having been to every adventurer. The effect of this survey rightly decided, there is no error, and the judgwas, not to avoid contracts already made, but ment of the Circuit Court is aflirmed. to give notice to the public, that these lands were thereafter to be acquired by special con- Mr. Justice Johnson dissented. The reasontract only. The act of 1779 found this to be ing upon this cause must be utterly unintelthe existing state of things; and, in dividing ligible to those who hear it, unless premised by the estates of the proprietaries between the the following state of facts:
The grant to William Penn, vested in him | another, all the lands of the state, except those 295*) and *his heirs, both the soil and sov- within the tenths or manors, are exempt from ereignty of the State of Pennsylvania, subject quit-rents, and released from any lien for balto a few reservations of right and power, not ances of purchase money, which purchase material to be noticed here. But, before his money is vested in the commonwealth. colony took their departure from England, he The question is, whether the lands within the entered into a variety of stipulations, restrict. manors, granted out to individuals previous to ing the exercise of both his power and rights surveying the manors, are entitled to the benefit over the territory which they were about to oc. of these exemptions, in common with all lands cupy. These are known by the epithets of his of the same class within the state; and the conditions or concessions; and it is by one of action below is an attempt to exclude from that the articles of this instrument that he precludes benefit those prior grantees, under the idea that himself from setting apart more than one-tenth they are excepted by the effect of the reservaof the soil, for the several and individual use of tions in favor of the proprietaries. And this his family. The rest was to be granted out to supposed right of the proprietaries is asserted settlers, on terms which were to be common to through the medium of an action of ejectment, all except those who purchased within the pro- under the idea that the legal estate is in the prietary tenths, with whom he was at liberty grantee of the manor, and only an equitable to contract as he pleased for the sale of his interest in the tenant, the prior purchaser. lands.
The received doctrines on the subject of what By the 17th section of the charter, there was creates a legal estate in a grantee, it must be power given to the proprietary to erect manors, observed, are altogether peculiar in the State of with right of court-baron, frank-pledge, &c., Pennsylvania. A warrant, a survey, and pay. and to grant the land therein for estates, which ment of the consideration money, is held to the grantees could not devest of the incident of give an absolute estate in fee, though not conbeing held directly of the manor, or the grantee summated by a patent. This subject came on of the manor, who is denominated lord of the to be considered by this court as early as the manor. The manor of Springetsbury, within year 1799; and the law was then clearly recog. which this land lies, was surveyed for the use nized to be as I liere state it. Judge Iredell of the proprietaries, and surveyed as a manor. uses the expression, as applied to a title so acThere was evidence in the cause below of its quired, a legal title, as distinguished from an having been laid off as early as 1722, but it was equitable title." certainly resurveyed in 1768; and as the court *The peculiarities of the form in (*298 below rested the case upon the effect of the re- which this question comes up, must be attribsurvey, as equivalent to an original appropria uted to local practice. The charge given by tion, I presume the case does not require that the court, on sumning up to the jury, is copied 296*) we should look beyond it. *she titles into the record, and exceptions taken to those under which the defendants below (and plaint parts of it which were unfavorable to the deiffs in appeal) defend their possession, originated fendants below. These exceptions were ten in in 1747 and 1748, and would be entitled to un number; but only the 4th, th, 8th and 10th questionable precedence, but for the following have been insisted on in argument here. Of facts: The warrants of survey contain a con. these, I consider the last in numerical order as dition in these words, “which survey, in case proper first to be noticed. It is expressed in the said A. B. fulfill the above agreement within ihese words: “Because the evidence exhibited six months from the date hereof, shall be valid, manifested the absence of legal title in the otherwise void.” The agreement here referred plaintiff's lessee, whereas the court charged the to was, to pay a sum of money (called, with jury that he was possessed of the legal title, reference to its fixed amount, the common and as such, entitled to recover in this action." terms) in six months. A portion, about one- The court below has considered the title of third, of this sum, it appears, was paid, but the defendants below as a mere equitable title; there was nothing in the cause to sustain the all its conclusions, from first to last, have their payment of the residue, unless it was posses. basis in this doctrine. And had it been shown sion, lapse of time, and supposed acquiescence in argument that this idea was sustained by a of the proprietaries. When the manor was course of decisions in the state courts, I cersurveyed in 1768, there were many of these in- tainly should not feel myself at liberty to condividual land-holders comprised within the lines test it. But everything conspires to satisfy me then Jaid off, all holding on the common terms; that the estate vested in the warrantce upon the and there were, afterwards, many other tracts execution of a survey, was never considered in sold, upon what are called, in the peculiar any other light than a legal estate, in the jurislanguage of that country, the terms agreed; by prudence of that country. Whatever may be which is understood, according to a value to be the correct legal constructions of the words of adjusted, without confining the vendor to the the warrant, if such has been the practical common terms. Such tracts were sold out to construction, communis error facit jus, and it is the purchasers of this class, as Penn's individual now too late to criticise on the meaning of terms. property. Upon all these lands there were *My reasons for adopting this opin- [*299 reserved a small annual sum, called quit-rents. ion are the following: In the year 1779, the legislature passed an act, 1. I look in vain through the statutes of that entitled “ an act for vesting the estates of the State for any legal provision for entering, avoidlate proprietaries of Pennsylvania in this coming, and regranting lands, for failure in paying monwealth,” by one section of which, the pro the arrears of purchase money. On the con prietary tenths, or manors, are granted to the trary, I find an act passed on tne 9th of April, 297*) proprietaries, “ together *with quit. 1751, ch furnishes a legislative exposition rents and other rents reserved thereon." "By of the law on this subject. By the provisions of that act, the treasurer is authorized to issue can be considered as an entry, it is not pretendan execution for the arrears of purchase money ed that any legal eviction of the defendants due on lands granted prior to the 10th of De below ever took place. And as to that, I think cember, 1776, and to levy on and sell the land perfectly clear that it could, on no principle, so granted. That the warrants and survey operate as a legal eviction. It was an act, on created in favor of the state a debt and a lien, every principle, perfectly consistent with the is unquestionable; and this is all that the State full and unmolested enjoyment of the premises affirms in passing this law; but, by the same in question. And this consequence follows, legal provision, it negatives the idea of the whether we consider it in the light of a simproperty in the soil having ceased to exist in the ple designation of metes and bounds, over tenant. No change in this respect was effected which the original proprietary rights were reby the act of 1779, commonly called the vesting tained, or, what appears to be the more proper act, since that act only confirms individual view, as an original grant, converting it from an estates according to their existing qualities. interest existing in the proprietary, in his polit
Nor bas the legislative power been altogether ical capacity, into an estate held by him in his silent on the subject of forfeiture and regrant individual relations to the society of which he ing; for, by the 10th article of the concessions, was both a member and a ruler. In the first there is provision made for regranting lands view, there was no sensible change made in the which may become forfeited for failing, for estate, as it existed previously in this, and the three years, to seat and improve them. Nor do whole territory; *and in the second, the [*302 I believe that there can be produced in the his. interest acquired, or effect produced, could be tory of the jurisprudence of that country, an nothing beyond that of a grant to any indiinstance in which this power of regranting has vidual, other than the proprietary. In the latbeen extended to any other case.
ter case, it is perfectly clear that running the 300*) *2. I think this opinion follows as a circumscribing lines would be no trespass or corollary to the proposition that payment of eviction. These appropriations to the proprithe consideration money vests a legal estate. etary were intended to operate exclusively upon For why should a patent be unnecessary, if unseated territory. On that which had been there remained any act to be done on the part previously surveyed to individuals, they could of the proprietary, in order to pass a legal es- produce no effect whatever; otherwise they tate? It may be contended, that this doctrine might as well have dispossessed those who held results from the peculiar jurisprudence of that by a perfect, as those who held by an inchostate, in which, for want of courts of equity, ate title. Although circumscribed by the lines the courts of law have adopted the maxim, that of the manor, the seated tracts composed we must consider that as done which ought to no part of the thing appropriated; they be done. But to this there is a brief and un- could not have been estimated as any part answerable reply. Such might be the reason of the proprietary's tenths; and there never where a patent is demanded, and the fees ten- was a doubt of his right having still existed, dered; but such demand and tender have never to extend the limits of his survey, so as to been insisted on as necessary in support of the take in as much land as he was deprived of by general effect of payment of the consideration these prior included individual appropriations. money, to vest a fee-simple absolute, without a A different construction would be greatly to his. patent.
prejudice, inasmuch as he might, by possibility, Some analogy may be supposed to exist be- have lost the whole of his tenths, by taking in tween this case and that of mortgageor and the grants to others. This view of the subject, mortgagee. But, if so, the relation is reversed, I shall again have reason to recur to, on another and the converse of the rights and liabilities of point. the mortgagee results from it. For the debtor But, if this circumscribing survey could, on conveys the fee to the creditor, in the ordinary any principle, be held equivalent to an entry, form of mortgaging, and retains only the right it is still necessary to maintain that it was a to redeem. Here the creditor conveys the es- legal entry. And this I am prepared to negatate cum onere. And the question as to the in- tive, upon various grounds. It is obvious that terest vested in the defendants below, whether such an entry must be justified, either on the it was legal or equitable, still recurs. If legal, ground of personal right or legal power. A it bears an analogy with an estate in fee subject mere arbitrary power to resurvey did not exist in to a charge, rather than to an estate subject to the proprietary; the province *of Penn- (*303 a mortgage; in which former case, the creditor sylvania bad taken the form of a state, govcould not maintain ejectment.
erned by a wise and beneficent government, in 301*] *The only analogy, in my judgment, which the will of the proprietary had been subbetween this estate and any one known to the jected to the public will, and his allodial intercommon law, is that of a foeffment on condition. ests circumscribed to his purchase money and The warrant is the deed, the survey the livery quit-rents, and his reserveil tenths. As to the of seisin, and the condition is a condition in land seated under warrants to individuals, he deed, as distinguished from a condition in law; was bound by his own concessions and the • and it is also a condition subsequent. In legislative will; and I see no power delegated
which case, it is clear that the estate is a legal by law to anyone to enter and evict for failure to estate, and remains good until entry made for pay the consideration money reserved on such the forfeiture, by some one legally authorized appropriations; nor have we been told of any This leads to the questions, whether, previous practice on this subject, that could be construed to their formal entry on bringing this ejectment. into a national acquiescence, in the exercise of such an entry was made. Whether legally such a power. The debt and the lien remained, made. And what were its legal effects. but the right of eviction and regranting for non
Unless the marorial appropriation of 1768 payment, was never legalized nor asserted, nor
could it, in any case, have been tolerated, with | manorial appropriation operate upon the lands out a tender of that part of the consideration that had been seated previous to such appromoney which had been already paid. Again, priations? It is clear that it vested no interest an entry for condition broken, must be made in such lands, nor anything incident to them. as such, and with intent to produce the legal If the whole purchase money had been paid, effects of an entry; a mere casual friendly pass the individual's estate was consummated. And ing of the boundaries of the premises will be if the whole was not paid, it is admitted in the unconsequential; but here, the sole object of the charge, that the proprietary could not change survey of 1768 was to appropriate unseated the tenure or the terms of purchase. And so land, and not to assert a title to that which had far were these previously seated tracts from been previously appropriated. The present being considered in law as making part of the claim is but an after thought; a speculation manor, that the proprietary's right to indemnify upon the possible effect of an act not intended himself from adjacent unseated territory, for to produce eviction.
the deduction from his tenths, caused by these This leads to another consideration, operating excepted tracts, bas been solemnly recognized against both the fact and legality of this sup- in that court. Then, *though within [*306 posed entry, for condition broken. It is agreed, the manor, they were not of the manor; as well on all hands, that proof of the full payment of might an island or an oasis be denominated 304*) the consideration *money would have water or desert. And there were unanswerable been conclusive against the title of the plaintiffs reasons, in justice and policy, why such land below. But why may not presumption of such should have been so considered. It is asserted a payment arise from length of time and ac. that the proprietaries never, in fact, exercised quiescence? and that of the plaintiff below be any of those privileges and powers within the left as a fact to the jury? If resumption of a tracts denominated manors, which were authorpatent may, under circumstances, be left to a ized by the charter. But this consideration has jury in favor of possession, much more so may no influence upon my opinion; for, 1st, I see à fact so much less solemn in its nature, and no reason, except the intervention of the revomore difficult of proof, as payment. In this lution, why the proprietaries, or lords of the case, and in all cases arising in Pennsylvania, manors, may not have assumed the exercise of such a fact may well be submitted, since in those privileges. In case of escheats, there can practice it has superseded the issuing of a pat- be no doubt that they would have asserted one ent, and may well tempt the parsimony of pur manorial right, and were probably prevented chasers, since the expense of a patent has be- from asserting all, only because in the actual come an expense of supererogation. The long state of the province, they would have been forbearance and acquiescence of the proprie- burdensome and unproductive. But, 2d, They taries, can be referred only to one of three did not assert one important privilege within causes; a consciousness that they had acquired those limits, a privilege which they were prenothing in the seated lands within their man- cluded by law from exercising beyond those orial appropriations; that they had no right to limits. This was the right to demand a higher enter on the premises previously seated; or that price for the lands within their manors than the title in it was perfected by payment. All that to which they had restricted themselves in which would operate against both the fact and the state at large. And this appears to me to legality of the supposed entry.
establish a familiar and definite ground of disFrom these considerations, I am led to adopt crimination, by which to determine the operathe opinion that the title of the defendants be- tion of this act of confiscation, in any given case. low was a legal title, and the better title; that was the land held on the common terms, or the if voidable, it could be avoided only by entry terms agreed? It cannot be disputed that the for conditions broken. That no such entry general purpose of the act of confiscation was, was made, or was intended to be made, or to distinguish between the land appropriated to could be legally made; and that they were, the individual use of the proprietaries, and that therefore, entitled to a charge in their favor. *over which they were held to exercise [*307 With this view of the subject, it may not be only a political power, or fiduciary interest. necessary for me to go farther. But it comports They were permitted to acquire an individual 305*) 'with the practice of this *court, that I property in one-tenth of the territory of the should express an opinion on the other points state; and the lands so appropriated, as well as in the cause.
the proceeds of the sale of such lands, were And first, as to the bearing of the act of con- meant to be set apart to them, while that which fiscation, on the subject of this suit.
had been seated by individuals, as a part of the The court below appears to have con unappropriated nine-tenths, reserved to the sidered a manor in the light of a geographical community, was intended to be confiscated. tract, or portion of territory designated by Any other construction would go to imply that metes and bounds. I, on the contrary, consider the state had reserved to the proprietaries, terthe term as designating an estate or legal inter- ritory which was no part of their legal tenths; est within the geographical limits. In this and, also, that but for this reservation, the act sense, nothing will be comprised in the mean of confiscation would have devested individual. ing of the words of the 8th section of the law, interests not intended to be confiscated. but those tracts of land within those limits But det us examine more particularly the which were held of the manor; or, in the pecul. provisions of this act, with a view to determiniar language of that country, granted on terms ing its just construction. And here let me to be agreed. It is very clear that the 8th sec- premise, that, for all the purposes of this suit, tion of the act of confiscation was not intended I care not whether the 9th section of the act to convey to the proprietaries any interest not vests in the proprietaries the balances due on the previously existing in them. Now, how did a tracts within the manor, sold on the common