It has been urged in argument, that the leg-patent, warrant or survey, of, in or to any part islature intended clearly to distinguish between or portion of the lands contained within the the rights of Penn, as an individual, and his limits of this state, or by virtue of any location rights as proprietor. The first were reserved; filed in the land-office before the 4th of July, the last were confiscated. This distinction, so 1776, shall be, and they are hereby confirmed, far as respects the subject of the present con- ratified and established forever, according to troversy, is not to be found in the law. The such estate or estates, rights or interests, and 8th section confirms to the proprietaries under such limitations or uses as in and by the all their private estates, "and likewise all the several and respective grants and conveyances lands called and known by the name of the thereof are directed and appointed. proprietary tenths or manors. These proprietary tenths or manors, then, did not compose a part of, but were in addition to, their private estates. They were held, too, by precisely the same title by which other lands in Pennsylvania, not sold nor reserved, were held. Nor was there any new modification of that title. They were withdrawn from the mass of property offered for sale on the common terms; but were still held by Penn, solely as proprietor under the charter. The quit-rents, too, were 283*] clearly an appendage *to the original grant, retained on the lands which were sold, and retained by Penn in his character as proprietor. Yet these are expressly saved to him. There is, then, in the act of 1779, no intention | to make the private and proprietary rights of Penn the criterion by which the line of partition between him and the commonwealth should be ascertained; but there is a clear intention to divide his proprietary estate, and to make his surveys of manors the criterion by which this line of partition should be ascertained. This result is, we think, very clearly produed, so far as respects the soil, by the 5th and 8th sections; and is, we think, produced not less clearly with respect to the arrears of purchase money, by the 9th and 10th sections. Strike out those sections, and there is nothing in the act which can reach the arrears of purchase money, within or without the manors. They would, like other debts, remain the property of the creditor. The 9th section expressly abolishes "the arrearages of purchase moneys for lands not within the tenths or manors aforesaid;" and if, as we think, the tenth, or manor, was in the minds of the legislature, described by a survey thereof, made according to law or usage, and returned into the land-office before the 4th of July, 1776, then the lands on which the arrearage of purchase money is claimed, in this case, are within one of the aforesaid tenths, or manors. We think, then, that the lands, or the purchase money, which the plaintiffs in the Circuit Court 284*] *claim in this case, are not confiscated by any act of the State of Pennsylvania. Before we take leave of the act of 1779, it may be proper to inquire, whether it has any operation on the lands lying within the manors, and which had been sold, but not granted, the terms of sale not having been complied with. It will be recollected, that those on whose property this law acted were the subjects of an enemy, and that the legislature possessed full power over their estates. Having the power to confiscate absolutely, they might modify that power in its exercise, as to them might seem proper. The 7th section provides and enacts that all the rights, &c., which were derived from the proprietaries, or to which any person other than the said proprietaries were entitled, ** either in law or equity," by virtue of any deed, This section comprehends all the lands within the state, whether within or without the manors, to which any individuals had derived a title from the proprietaries, either in law or equity, by virtue of any deed, patent, warrant or survey, and confirms such title according to the estate, right or interest *conveyed. That [*285 the section operates alike on lands within and without the manors, and that it confirms titles under warrants or surveys, for which the purchase money has been paid, are certain. It is equally certain that it does not interfere with the arrears of purchase money which may still be due, because that whole subject is taken up and disposed of in the 9th and 10th sections of the act." The doubt is, whether it has any influence on any lands, the purchase money for which had not been paid; and if any, how it affects the title to such lands. The right of re-entry was reserved as a security for the payment of the purchase money, but does not appear to have been exerted, and was probably considered in the light of a mortgage, to be used merely as the means of enforcing the fulfillment of the contract, not as absolutely terminating the estate. That the proprietaries looked on for a great number of years, and saw lands held under warrants void on their face, for the failure to fulfill the contract within the specified time of six months," and never, in a single instance, so far as appears in the case, or has been alleged in argument, attempted to avoid the estate, would certainly afford a strong equity to such purchaser against the proprietary, should such an attempt be made. And that ejectments were maintained on such titles, is also evidence of the opinion entertained of them in the courts of Pennsylvania. It seems to have been understood by all, that the proprietary was to avail himself of the condition in the warrant, for no other purpose than to coerce the payment of the *pur- [*286 chase money. This became, from usage, a kind of tacit agreement, which their real interest required all parties to observe. Yet, when a new state of things was introduced, it was natural for that numerous class of purchasers, who had not paid up the whole of the purchase money, to be uneasy at the hazard in which their titles were involved; and their representatives would very naturally feel disposed to quiet their minds on this interesting subject. It would not be unreasonable to suppose the existence of a disposition to make the contract expressly what it was understood to be, and to do away the forfeiture, except as a mode of enforcing payment of the arrears of purchase money. The confirmation of titles, by their own terms void, for non-payment of the purchase money, accompanied with the preservation of the right to the purchase money, admits of the construction, that the clause of forfeiture may be used to enforce the payment of those arrears, but not as extinguishing the estate. At all events, this | ly recognized. To allow a different construcsection has the same application to lands within, as to lands without the manor; and the construction it has received with respect to the one, may serve as a rule for the other. The next exception to be considered, is to that part of the charge which declares the act of 1705, commonly called the seven years law, to be inapplicable to the case. That act enacts "that seven years' quiet possession of lands within this province, which were first entered on upon an equitable right, shall forever give an unquestionable title to the same against all, 287*] during the estate *whereof they are or shall be possessed, except in cases of infants,"&c. It has been contended that this act is merely retrospective; and, in support of this opinion, it has been said, that for more than one hundred years it has never been resorted to in the courts of Pennsylvania. To this argument it is answered, that the language of the act is prospective; that it purports to be an act of limitations, that it is found among the printed statutes of Pennsylvania, and that its operation has never been denied, so far as we are informed, in any of the courts of that state. During the irregularities which take place in the first settlement of a country, an act of limitations is peculiarly desirable, and it would be strange if Pennsylvania should have remained entirely without one. The 16th section of the laws agreed upon in England, enacts "that seven years' quiet possession shall give an unquestionable right, except in cases of infants," &c. An act of the same import as to possession, without any exception in favor of infants and others, was passed in 1700, but was repealed in England, in 1705, in which year the act was passed which is now under consideration. The people of Pennsylvania had one uniform and constant wish on this subject. Neither the 16th section of the laws agreed on in England, nor the repealed act of 1700, can be considered as retrospective; and there is some difficulty in giving this construction to the act of 1705. But, the courts of Pennsylvania having never considered this act as having the effect of 288*] *an act of limitations, this court is not inclined to go further than they have gone. If, however, it were to be so considered, it must be governed by those rules which apply to acts of limitation generally. One of these, which has been recognized in the courts of England, and in all others where the rules established in those courts have been adopted, is, that possession, to give title, must be adversary. The word is not, indeed, to be found in the statutes; but the plainest dictates of common justice require that it should be implied. It would shock that sense of right which must be felt equally by legislators and by judges, if a possession which was permissive, and entirely consistent with the title of another, should silently bar that title. Several cases have been decided in this court, in which the principle seems to have been considered as generally acknowledged; and in the State of Pennsylvania particularly, it has been express 1.-See Alexander v. Pendleton, 8 Cranch, 462; Base v. Gray, 4 Wheat. Rep. 213; M'Clary v. Ross, 5 Wheat. Rep. 116; Ricard v. Williams, 7 Wheat. Rep. 59. tion, would be to make the statute of limitations a statute for the encouragement of fraud— a statute to enable one man to steal the title of another by professing to hold under it. No laws admit of such a construction. The true question then is, whether the occupancy of those who held under these condi tional warrants, was consistent with, or adversary to, the title of the proprietaries. [*289 Upon the answer to this question, it seems difficult to entertain a serious doubt. It is reasonable to suppose that the practice of selling lands on credit, and of issuing warrants in the form of that which is inserted in this case, and of holding the legal title to secure the payment of the purchase money, prevailed from the first proceedings under the charter, until the declaration of independence, a period of near one hundred years. In the particular case before the court, credit was given from the year 1742; and we are not informed, and, consequently, have no reason to suppose, that this indulgence was singular. The legislation of Pennsylvania on the subject, justifies the contrary opinion; for we perceive among their printed statutes, several of a late date, giving farther time to pay in the purchase money for lands sold before the 10th of December, 1776. These acts of farther indulgence, continued for such a length of time, furnish strong evidence that the cases were very numerous to which those acts would apply; and show, too, that in the opinion of the legislature, no act of limitations had barred the claim. Now, this practice, in which the proprietaries, and a great portion of the population of Pennsylvania, concurred, is incompatible with the idea that the title of the purchaser became adversary to that of the proprietary, within six months after the date of the warrant of survey. In the case before the court, the survey was made, in fact, upwards of five years after the date of the warrant. Is it conceivable that the surveyor, who was an agent of the proprie- [*290 tary, would have made the survey, had he supposed it to confer a title adversary to that of his principal? a title which would enable the holder, by remaining quiet only one year and three months longer, to set the proprietary at defiance, and to hold the land discharged from the contract by which it was acquired. The very practice of holding back the title, and of giving such extensive indulgence for the payment of the purchase money, seems to demonstrate a general opinion that, so long as this state of things continued, the title to the land was still in the proprietary, and the purchaser acknowled his title. The, occupation of the purchaser was with the consent of the proprietary, and, consequently, not hostile to his rights. The proprietary permitted the purchaser to hold the land, subject to his claim to the purchase money; and the purchaser held under the admission, that the land remained liable to the purchase money, and that the proprietary might, at any distance of time, assert his title toit, so far at least as to secure his purchase money. There seems to have been a mutual understanding and a mutual confidence between the parties. have had it in his power to violate this conHow far the proprietary may 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 con291*] sidered as holding a possession adversary to the title which he acknowledged. It has been contended that the survey of the manor was a determination of the estate under the warrant, and the assertion of an adversary title, from which time the act of limitations began to run. There is certainly nothing in the fact itself which supports this proposition. All the transactions of the parties contradict it. There is no fact which shows a disposition in the proprietary to re-enter on any lands for which a warrant had previously been granted; nor is any case of such re-entry shown, from the first settlement of Pennsylvania. Several instances are mentioned, of grants completed on the common terms, within the manor of Springetsbury, while it was considered by the parties as a manor. No inference, then, is to be drawn from the facts in the case, favorable to the conclusion that the survey of a tract of country as a manor, was considered as determining the estates created by surveys on warrants previously issued, the conditions of which had not been fulfilled by the purchasers. This must be a conclusion of law, from the single act of survey, so inflexible as not to be influenced by the intention with which that act was performed, and the opinion prevailing at the time, as attested by usage, or the argument cannot be sustained." But how is this conclusion of law to be supported? The survey of a large tract of land cannot be considered as an entry on a smaller tract within its lines, as an ouster of the occu292*] pant, or even as a *trespass on him. How, then, can such survey be considered as having any legal effect different from the intention with which it was made? It is indispensable to the argument, to maintain that the mere act of survey does, of itself, in point of law, show an intention inconsistent with the continuance of any conditional estate, within the limits of the manor. This the plaintiff's in error have endeavored to maintain; and for this purpose have contended that a new title, which they call the "manorial title," and which they say is distinct from the proprietary title, was created by the survey; that the plaintiffs in error hold under the proprietary title; the plaintiffs in ejectment, under the manorial title. Their claims are, consequently, adversary to each other. But this argument cannot be reconciled with the fact. No new title was created by the survey. There was no source from which title could be derived, other than from the proprie tary himself. The survey was, not to give a new title, but to separate a certain tract of land from the general mass, which was offered to every adventurer. The effect of this survey was, not to avoid contracts already made, but to give notice to the public, that these lands were thereafter to be acquired by special contract only. The act of 1779 found this to be the existing state of things; and, in dividing the estates of the proprietaries between the We perceive, then, nothing, either in the law or the fact of this transaction, which tends to show that the possession of the plaintiffs in error has been adversary to the rights of the person under whom he originally claimed. Having considered the act of 1705 as if it were an act of limitations, all the reasoning which has been applied to that act, applies also to the act of 1785, on which the eighth excep tion is founded. The several treaties formed with Britain have a very important influence on the time which has elapsed since the war between the two countries. The opinion that the plaintiffs in ejectment have still a right, notwithstanding the acts of 1705 and 1785, to proceed at law, presupposes their consent to the continuance of the original title, created by the warrant; for if the possession taken under the warrant or survey was not continued with the consent of the proprietary, it immediately became adversary, and the act of limitations immediately commenced. If, then, there be any case in which this assent is not to be presumed, that is a case in which the plaintiff in ejectment is barred by the act of 1705 or 1785. If, as the court thinks, the rights of the proprietaries were converted, by long acquiescence in the usage which must have been known to them, of selling the lands, as being liable only for the purchase money; or by the 7th section of the act of 1779; or by both united, into a mere right to the purchase money, still the remedy of proceeding *against the land [*294 for the purchase money remains, and is not taken away by the act of 1779. That act, having reserved the purchase money for the proprietor, must, of course, be construed to reserve his remedy, unless it was expressly taken away. It is not easy to point out any other remedy than this, by ejectment. The original purchaser has transferred; and were his representatives even still liable for the purchase money, which is far from being admitted, they may not be able to pay it, if they could be found. It was not on their personal responsibility, but on the land itself, that the vendor relied. His claim was attached to the land, and passed with it. The remedy reserved is on the land, not on the person. It would be difficult to form an action at law against the person; and in Pennsylvania, there is no court of chancery, even if a bill in equity could be sustained. The remedy must be by ejectment. There are other exceptions in the record, which, though not pressed, have not been waived. It was, therefore, the duty of the court to examine them. The result of that examination is, that the only serious questions in the cause are those which grow out of the acts of 1705 and 1779. These having been rightly decided, there is no error, and the judgment of the Circuit Court is affirmed. Mr. Justice JOHNSON dissented. The reasoning upon this cause must be utterly unintelligible to those who hear it, unless premised by 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. 46 The received doctrines on the subject of what creates a legal estate in a grantee, it must be observed, are altogether peculiar in the State of Pennsylvania. A warrant, a survey, and payment of the consideration money, is held to give an absolute estate in fee, though not consummated by a patent. This subject came on to be considered by this court as early as the year 1799; and the law was then clearly recognized to be as I here state it. Judge Iredell uses the expression, as applied to a title so acquired, a legal title, as distinguished from an equitable title." The peculiarities of the form in [*298 which this question comes up, must be attributed to local practice. The charge given by the court, on summing up to the jury, is copied into the record, and exceptions taken to those parts of it which were unfavorable to the defendants below. These exceptions were ten in number; but only the 4th, 7th, 8th and 10th have been insisted on in argument here. Of these, I consider the last in numerical order as proper first to be noticed. It is expressed in these words: "Because the evidence exhibited manifested the absence of legal title in the plaintiff's lessee, whereas the court charged the jury that he was possessed of the legal title, and as such, entitled to recover in this action.' By the 17th section of the charter, there was power given to the proprietary to erect manors, with right of court-baron, frank-pledge, &c., and to grant the land therein for estates, which the grantees could not devest of the incident of being held directly of the manor, or the grantee of the manor, who is denominated lord of the manor. The manor of Springetsbury, within which this land lies, was surveyed for the use of the proprietaries, and surveyed as a manor. There was evidence in the cause below of its having been laid off as early as 1722, but it was certainly resurveyed in 1768; and as the court below rested the case upon the effect of the resurvey, as equivalent to an original appropriation, I presume the case does not require that 296*] we should look beyond it. *The titles under which the defendants below (and plaint iffs in appeal) defend their possession, originated in 1747 and 1748, and would be entitled to unquestionable precedence, but for the following facts: The warrants of survey contain a condition in these words, which survey, in case the said A. B. fulfill the above agreement within six months from the date hereof, shall be valid, otherwise void." The agreement here referred to was, to pay a sum of money (called, with reference to its fixed amount, the common 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 then laid off, all holding on the common terms; and there were, afterwards, many other tracts sold, upon what are called, in the peculiar language of that country, the terms agreed; by which is understood, according to a value to be adjusted, without confining the vendor to the common terms. Such tracts were sold out to the purchasers of this class, as Penn's individual property. Upon all these lands there were reserved a small annual sum, called quit-rents. 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 proprietary tenths, or manors, are granted to the 297*] proprietaries, together with the quitrents and other rents reserved thereon." By " test it. But everything conspires to satisfy me that the estate vested in the warrantee upon the execution of a survey, was never considered in any other light than a legal estate, in the jurisprudence of that country. Whatever may be the correct legal constructions of the words of the warrant, if such has been the practical construction, communis error facit jus, and it is now too late to criticise on the meaning of terms. *My reasons for adopting this opin- [*299 ion are the following: the arrears of purchase money. On the contrary, I find an act passed on the 9th of April, 1751, which furnishes a legislative exposition of the law on this subject. By the provisions Nor has the legislative power been altogether silent on the subject of forfeiture and regranting; for, by the 10th article of the concessions, there is provision made for regranting lands which may become forfeited for failing, for three years, to seat and improve them. Nor do I believe that there can be produced in the history of the jurisprudence of that country, an instance in which this power of regranting has been extended to any other case. 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 it 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 political capacity, into an estate held by him in his individual relations to the society of which he was both a member and a ruler. In the first view, there was no sensible change made in the estate, as it existed previously in this, and the whole territory; *and in the second, the [*302 interest acquired, or effect produced, could be nothing beyond that of a grant to any individual, other than the proprietary. In the latter case, it is perfectly clear that running the circumscribing lines would be no trespass or eviction. These appropriations to the proprietary were intended to operate exclusively upon unseated territory. On that which had been previously surveyed to individuals, they could produce no effect whatever; otherwise they might as well have dispossessed those who held by a perfect, as those who held by an inchoate title. Although circumscribed by the lines of the manor, the seated tracts composed no part of the thing appropriated; they could not have been estimated as any part of the proprietary's tenths; and there never was a doubt of his right having still existed, to extend the limits of his survey, so as to take in as much land as he was deprived of by these prior included individual appropriations. A different construction would be greatly to his prejudice, inasmuch as he might, by possibility, have lost the whole of his tenths, by taking in the grants to others. This view of the subject, I shall again have reason to recur to, on another point. 300*] *2. I think this opinion follows as a corollary to the proposition that payment of the consideration money vests a legal estate. For why should a patent be unnecessary, if there remained any act to be done on the part of the proprietary, in order to pass a legal estate? It may be contended, that this doctrine results from the peculiar jurisprudence of that state, in which, for want of courts of equity, the courts of law have adopted the maxim, that we must consider that as done which ought to be done. But to this there is a brief and unanswerable reply. Such might be the reason where a patent is demanded, and the fees tendered; but such demand and tender have never been insisted on as necessary in support of the general effect of payment of the consideration money, to vest a fee-simple absolute, without a patent. Some analogy may be supposed to exist between this case and that of mortgageor and mortgagee. But, if so, the relation is reversed, and the converse of the rights and liabilities of the mortgagee results from it. For the debtor conveys the fee to the creditor, in the ordinary form of mortgaging, and retains only the right to redeem. Here the creditor conveys the estate cum onere. And the question as to the interest vested in the defendants below, whether it was legal or equitable, still recurs. If legal, it bears an analogy with an estate in fee subject to a charge, rather than to an estate subject to a mortgage; in which former case, the creditor could not maintain ejectment. But, if this circumscribing survey could, on any principle, be held equivalent to an entry, it is still necessary to maintain that it was a legal entry. And this I am prepared to negative, upon various grounds. It is obvious that such an entry must be justified, either on the ground of personal right or legal power. A mere arbitrary power to resurvey did not exist in the proprietary; the province of Penn- [*303 sylvania had taken the form of a state, governed by a wise and beneficent government, in which the will of the proprietary had been subjected to the public will, and his allodial inter 301*] *The only analogy, in my judgment, between this estate and any one known to the common 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 reserved 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 nonpayment, was never legalized nor asserted, nor Unless the manorial appropriation of 1768 |