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 as such, and with intent to produce the legal effects of an entry; a mere casual friendly pass ing of the boundaries of the premises will be unconsequential; but here, the sole object of the survey of 1768 was to appropriate unseated land, and not to assert a title to that which had been previously appropriated. The present claim is but an after thought; a speculation upon the possible effect of an act not intended to produce eviction.

in such lands, nor anything incident to them. If the whole purchase money had been paid, the individual's estate was consummated. And if the whole was not paid, it is admitted in the charge, that the proprietary could not change the tenure or the terms of purchase. And so far were these previously seated tracts from being considered in law as making part of the manor, that the proprietary's right to indemnify himself from adjacent unseated territory, for the deduction from his tenths, caused by these This leads to another consideration, operating excepted tracts, has 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 a 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 dis

From these considerations, I am led to adoptcrimination, by which to determine the operathe opinion that the title of the defendants below was a legal title, and the better title; that if voidable, it could be avoided only by entry for conditions broken. That no such entry was made, or was intended to be made, or could be legally made; and that they were, therefore, entitled to a charge in their favor. With this view of the subject, it may not be necessary for me to go farther. But it comports 305*] with the practice of this *court, that I should express an opinion on the other points in the cause.

And first, as to the bearing of the act of confiscation, on the subject of this suit.

tion of this act of confiscation, in any given case. Was the land held on the common terms, or the terms agreed? It cannot be disputed that the general purpose of the act of confiscation was, to distinguish between the land appropriated to the individual use of the proprietaries, and that *over which they were held to exercise [*307 only a political power, or fiduciary interest. They were permitted to acquire an individual property in one-tenth of the territory of the state; and the lands so appropriated, as well as the proceeds of the sale of such lands, were meant to be set apart to them, while that which 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 which were held of the manor; or, in the peculiar language of that country, granted on terms to be agreed. It is very clear that the 8th section of the act of confiscation was not intended to convey to the proprietaries any interest not previously existing in them. Now, how did a

But det us examine more particularly the provisions of this act, with a view to determining its just construction. And here let me premise, that, for all the purposes of this suit, I care not whether the 9th section of the act vests in the proprietaries the balances due on the tracts within the manor, sold on the common

terms, or not. The question here is, whether | understand the force and meaning of these two they are entitled to judgment in a suit in eject- sections, I deem it material that the language ment, and of consequence, to a writ of posses- and effect of the 7th section should be duly sion, for I cannot distinguish the one from the weighed. This section contains a general conother. I wholly reject the doctrine of suing firmation of all the estates, legal and equitable, for possession, and recovering money; of suing derived from the proprietaries, their officers, &c., for land, and recovering pounds, shillings and or otherwise, or to which any person or persons, pence. Such a perversion of means might pro- other than the proprietaries, were entitled, either ceed from positive legislation; and, in the state by deed, patent, warrant or survey, *on [*310 of Pennsylvania, where an amalgamation of the 4th of July, 1776. This clause operates in falaw and equity necessarily grows out of the vor of all persons "other than the proprietaries,' 308*] *want of an equity jurisdiction, the and confirms, unquestionably, the estates of practice has grown up, of giving an alternative these defendants below, in common with every judgment in such cases, for either the land or other citizen. The next proviso (8th section) is the money, or rather for the money to be levied confined to the subject of the estates and inter on the land. But this court is expressly pro- ests of the proprietaries. And here it is obvious hibited from thus confounding legal and equita- that three subjects claimed the attention of the ble proceedings, and the whole opinion of the legislature. Their estates and interests were court below proceeds on a recognition of the distributable into three classes: they held propnecessity of pursuing the two classes of legal erty acquired, in common with every other and equitable rights, by their appropriate rem- individual, by devise, purchase, descent," edies. I have said, and in this I do not under- &c.; they held other property, under the reserstand myself as differing from this court, that vation of a tenth of the soil, to their individual the only practical effect of the terms of the use; and they held, or claimed, a third class of warrants to individuals is, to create a debt and interests, as proprietaries, which clashed with a lien; but surely a tenant may covenant to that eminent domain which was now about to stand seized, subject to a charge in gross, and be assumed by the state of Pennsylvania. The yet retain the legal estate. And even in the latter, the state determined to confiscate, and ordinary case of a mortgage, where the legal compensate them for; the former two, to preestate passes from the debtor to the creditor, serve to them unviolated. And these consideraand the converse of the present case exists, an tions draw a line of demarkation between the assignment of the debt is no conveyance of the subjects of this act, infinitely more definite and legal estate to the assignee. A court of equity rational than that marked out by trees or will pass the one as an incident to the other; streams. The estates held upon the common but in a court of law, the assignee could not terms, were those which constituted the third maintain ejectment. And that is the only ques-class; and the phraseology of the act appears tion here. If it be said, that although in this suit the plaintiff below may not be entitled to recover the land, but may avail himself of this form of action to recover the purchase money due, I consider it as an abandoment of the question; for, the debt, if existing, was but an equitable lien, and the remedy here resorted to is a common law remedy. I think, however, I shall show, that although the debt exists, the lien is taken away by the act of confiscation; 309*] and *though the debt be due, it is not due to these parties, but to the commonwealth of Pennsylvania.

In following this act of confiscation through the detail of its provisions, we find, that after four sections, setting forth the views and motives of the legislature, the fifth section, or first enacting clause, contains a general assumption of the soil and sovereignty of the state, and a revocation of the charter to Penn, as fully, to use its own language, as if the same were therein transcribed and repealed." The sixth section asserts the future exclusive appropriation of the soil and lands, hereditaments and premises, to be in the legislature of the state;" and, under the operation of these two clauses, it is very clear, that every right, civil and political, of the proprietaries, "of, in or to the soil" of Pennsylvania, derived under the charter, was (subject to the exceptions in the same act) vested in the commonwealth, "freed and discharged," as the act expresses it, "from and against all estates, uses, trusts," charges, in cumbrances, titles, claims and demands whatsoever." And all the title which they now hold therein, they hold by virtue of the provisos contained in the 8th and 9th sections. But to U. S., Book 6.

Wheat. 9.

to me to be in perfect accordance with the general intent. On this point, I hold it to be an important fact, that, without exception, throughout these two sections, tenths and manors are never used apart; they are constantly considered synonymous and equivalent. Now, although a manor may, by common acceptation, be considered as a geographical section, a *tenth is [*311 a term of comparison and quantity, and has direct relation to that interest which the proprietaries had acquired, and might acquire, as a distinct individual property in the soil. I consider, therefore, both manor and tenth, as here used, as designating estate and interest, and not geographical limits. And why should it be held a reservation, by geographical limits? Let it be remarked that it is no immaterial question to the defendants in the court below, not only as it affects their interests, but as it affects their claims upon the justice and in artial legislation of country. There can be no reason assigned, why they should be excluded from the benefits which this act confers upon citizens of their class, and, in fact, subjected to confiscation. There are important interests growing out of this act to all other land-holders, upon common terms; they are exempted from quit-rents, and the lien for the balance of the purchase money is taken from off their lands. Can there be a reason assigned why those of this class who, by the caprice or cupidity of the proprietaries, or their agents, have been embraced within the lines of their surveys, should be excluded from the common benefits extended to their fellow citizens? The injustice of such a discrimination is conclusive on the construction of the act, if an act is to be construed according to the intent 7

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of the legislature. With regard to those who held of the manor, or held, as is usually said, on terms agreed, the case is widely different. It is the effect of their own individual contracts with the proprietary. They are, by the nature 312*] of their relation to the proprietaries, distinguished from those of the other class, and have nothing to complain of. Their quit-rents and arrears were considered as debts due to their landlord, and the legislature intended to take from the Penns nothing which belonged to them in their individual capacity.

Again, extending the construction of the act to the geographical limits of the manor, leads to the most absurd consequences.

scribe the thing granted to the estate or interest existing in the Penns at the time specified. *Nor is it immaterial to note the par- [*314 ticular phraseology here made use of. The words are. "reserved out of the said proprietary tenths, or manors, or the part or parts thereof which have been sold." Now, the lands sold to these defendants below, were sold out of the general funds of the state, and the quit-rent on these was reserved out of the land of the state, and not of the manor, for that had no legal existence when this sale and reservation were made. The land was not sold as part of the manor, nor was the rent reserved out of part of the manor.

But, secondly, there is not a pretext for this supposed resulting legal estate in the Penns, except the assumed reservation to them of the balance of purchase money on the grants held within their lines upon common terms. And how does this stand? It will be found to be only an implied grant, to which this implied legal estate is appended; an implication tacked to another implication; and finally, as the concluding link of this chain of implication, that ejectment is the remedy reserved for the recovery of that balance of the purchase money, which is itself the subject of the first implication.

It has been insisted, that it was lawful, in surveying the manors, to include within their boundaries the grants to individuals. This is readily conceded; and the inference from the fact is directly the reverse of what has been attributed to it. Did the legislature mean, by the proviso in favor of the Penns, to reserve to them their legitimate tenths; or did they mean, by possibility, to reserve to them half the state? There cannot be a doubt that, although any particular survey had embraced half a county, yet if the vacant land within it had amounted to no more than a tenth, the appropriation would have been duly made, and valid. But could the legislature ever have intended to ex- If the rights of the Penns be circumscribed clude all the individuals thus circumscribed, by the positive enactments of this law, then are from the common benefits of grantees on the they not only precluded from all claim to the common terms? to have subjected them to the balances due by this class of grantees, but also most odious and unmerited exceptions? Could from those due by every description of purthe state have intended to permit the proprie chasers; for there is no positive provision in taries, under the pretext of surveying a tenth, the law which vests those balances in them. to cast their net over half its limits? It was for Their quit-rents are expressly reserved to them the very reason that including individual sur- in the manors, but not so with their [*315 veys made them no part of the manor, that the balances of purchase money, But in the 9th 313*] right to include previous locations to and 10th sections, these arrearages of purchase individuals was tolerated. It had not entered money are excepted from the provisions of the into the mind of man to conceive, that they law, without any express declaration to whom thereby produced any change in the relation they shall belong; and from this, an implication which subsisted between those individuals and is supposed to result in their favor. But surely, the commonwealth; or could expose them to be so far as relates to the balances due by the genseparated from the mass of the community, in eral grantees, the implication is so far from bethe several legislation of the state; or exclude ing a necessary implication, that its bearing is them from an equal participation in all the altogether the other way; the implied intent of benefits of the revolution. But by this geo- the legislature is against a construction so obgraphical construction, without any act or viously inconsistent with the general purposes offense on their part, they are shut out from of that body; a construction producing such immunities extended to others, who had no an unjust, unreasonable and improbable disgreater claims upon the community than them- crimination between innocent and equally selves. meritorious men of the same class. Construe But again, if we are to construe this act the act so as to confine the grant to the Penns without a reference to its general spirit and into their private interests in the manors, and it tent, we have but to carry the principle through, in order to involve us in irreconcilable absurdity, and such as will oblige us, for the purpose of common sense, to come back to the very principle of construction which I would apply to the law throughout. A liberal construction of the 8th section, vests in the Penns the whole geographical contents of their manors, whether sold or unsold; and then adds to the grant the rents reserved out of the parts sold. The words are: "All the lands, &c., duly surveyed, &c.. together with the quit or other rents, or arrearages of rent, reserved out of the said proprietary tenths, or manors, or any part or parts thereof sold." Now, to reduce this section to the standard of common sense, we have at once to reject the geographical limits, and circum

becomes sensible and consistent throughout; and while it secures to them, on the one hand, all the interests which, as individuals, they are entitled to; on the other hand, you extend to all other individual citizens, one uniform rule of legislation and relief.

Again, there is no reason for supposing that when the legislature uses the terms tenths and manors aforesaid, in the 9th section, or the said tenths and manors, in the 10th section, that it uses them in any other sense than that in which they are used in the 8th section. The terms used, in fact, identify their meaning. But a correct construction of the terms used in the 8th section, in describing these tenths, or manors, is fatal to all implication in favor of the Penns, with reference to any *interest [*316

in the lands legally seated, previous to their ap- | manorial sales, might, with much greater reapropriation. The words are, "tenths, or man- son, be urged as raising a presumption against ors, duly surveyed and returned into the land- their claims even to those balances. This, howoffice." But who will deny that these words ever, I reject; and for a reason which serves to are to be construed with reference to the intent throw some light upon the subsequent clauses and effect of such surveys? And what was of this statute; which is, that as the Legislathat intent and effect? Simply to appropriate ture, in so many words, recognizes these alienunseated lands. Would these proprietaries ations as individual sales, they very properly have been content in laying off these surveys, considered the balances due thereon as private to have been precluded and deprived of half debts; and, as no confiscation of private debts their interest by previous surveys, over which could be implied from the enacting clauses of they could not have exercised the right of sell- the act, so no express reservation of such baling or retaining, as they thought proper? If ances was deemed necessary. The subsequent not, then, so far as relates to previously ceded exceptions in favor of balances due on manorlands, they never were appropriated by them, ial lands, therefore, I consider as intended only and it cannot be predicated of them, that in the to guard against an extension of the words of sense of the parties they were surveyed and re- the law to such individual contracts. The turned. nine-tenths of the soil, and the balances of purchase money due on such parts as had passed to individuals, they considered as the property of the body politic, and appropriated it as such to the state. The one-tenth set apart for the proprietaries, they propose to put on the same footing with their individual interests, properly so called, and with it, to reserve to them the balances due on the lands appropriated to themselves. These are fair and consistent inferences, if not positive enactments; but it would be much more consistent with the positive enactments, to hold that all the balances due on the lands circumscribed by the manorial lines were still at the disposition of the legis lature, than that they meant to *confer [*319 on the Penns more than they have declared, or made discriminations among the citizens at large, which no reason or policy could justify.

The construction now contended for, is obviously an after thought of the plaintiffs below, growing entirely out of a supposed ambiguity in the words of the confiscation act, and would have been strenuously resisted, had they been so applied when their surveys of manors were first made.

Again, the rule of construction applicable to leases and wills are not essentially different in their principles. In legislating on this subject, the state had assumed all the rights, and, at least, could exercise all the powers of a manorholder, in making his last will. Although by the charter, the purchasers under manors are restricted from any alienation of their purchases, by which they might be devested of the incident of holding directly of the manor, it is ob317*] vious that such a change of estate might be produced, by the act of the manorholder. Suppose, then, the grantees of the manor of Springetsbury had sold any portion of the soil, and devested it of this incident, ly ing, we may suppose, in the very centre of the whole, would a devise in the very words of this act, to wit, of the manor of Springets bury, as duly surveyed and returned," have been construed to carry the portion previously disposed of? Or, to pursue the analogy further; suppose the purchase money unpaid, and a covenant by indenture of the tenant to pay the money to the vendor and his heirs, and even to hold the land charged with the payment, would a devise of the manor carry the money so reserved, or the devise of the debt carry the freehold in the land sold?

But, on this doctrine of implication I will make another observation. It is rebutted by the provisions of the instrument itself; and, in the case of a will, would be considered as an undisposed residue; for, when we look through the whole act, and find this 8th section to be the only one which purports to give anything to the proprietaries, their whole interest having been previously confiscated; and when, in this section, we find their individual interests in the soil of the state, whether acquired as other individuals, or as proprietary appropriations, carefully designated, and even to the arrearages of quit-rents on such lands, expressly reserved to them; surely the implication arises, that this section was intended to embrace the whole provision meant to be made for them out of the common patrimony of the state.

318*] *The omission to mention and reserve the arrearages of purchase money due on the

Upon the questions that have been raised upon the operation of the law, commonly called the seven years law, or the law of 1705 (though of much greater antiquity), it may be proper to make a few remarks.

I cannot see a reason why this law should have been supposed obsolete, more especially with reference to the early day in which it must have acted upon the interests of the parties in this cause. On the contrary, it appears to have been a favorite law of the colony, for we find it enacted and re-enacted, in opposition to reiterated repeals by the King in council, as will be seen by reference to Carey and Bioren's edition of the Laws. In the same work, we find it printed under sanction of the legislature, and republished under the same authority, as lately as 1810. Indeed, upon reference to the concessions which composed the fundamental laws of the colony, we find the very law in its present terms; and are led to the conclusion that its constitutional character gave it a peculiar sanctity in the eyes of the commonwealth. Another consequence, also, results from its very early enactment; which is, that, contrary to a ground taken in argument, it must be construed as having a prospective effect, since it was adopted at a time when there could not have existed a case for it to govern, if solely retrospective. Of this law it has been remarked, that for 116 years it does not appear that a cause *has been won or lost on [*320 the basis of it. And had the decisions of the state courts, prior to the revolution, been preserved, the observation would have had its influence. But in the absence of reports of such adjudications, there cannot exist such satisfac

To me it appears, that this seven years law has had a sovereign influence over the rights of property in that state. I have no doubt that it is under its influence the doctrine has grown up, that a possessor of the soil need not produce a patent to protect his freehold; as well as the doctrine, that those words which, on the face of the warrant, would seem a condition, shall not be held to produce more than a contract and a lien.

But if this seven years law did not quiet the possession of the defendants below, I confess I am at a loss to understand the principle upon which that effect is denied to the limitation act of 1785. Was their estate void or voidable, legal or equitable? In every point of view, the law appears to me to operate in their favor.

The opinion below is thus expressed: "Possession, to create a bar by length of time, must be adverse, which it cannot be, if the defendant's entry was under a title derived from the plaintiffs.' That a possession, to sustain a bar under the act, must be adverse, is unquestionable. But when the Court comes, in the next member of the *period, to ex- [*323 plain what is meant by an adverse possession, we find the doctrine asserted, that a possession cannot be held adverse to the title of him from whom it is derived. This doctrine I hold to be altogether untenable; and this sentence alone, though every other idea be put out of the case, would, in my view of the subject, entitle the plaintiffs here to a reversal of the judgment. The title acquired by a vendee is most pecul iarly adverse to that of him from whom he purchases.

tory evidence on the subject as to sustain the | non constat, but that the public interest, as fact. One thing is very certain, that some well as private tranquility, might have been beneficial influence must have been felt from promoted by it. its existence, or it would not have been so often and so pertinaciously insisted on by the colonists. If it covered their estates in no other way than by preventing suits, its great purposes were answered; and its sovereign influence, in this respect, may well be inferred, from the assumed non existence of decisions at law. It preserved health, if it did not cure disease. At present, it is unquestionably repealed by the act of 1785, for the two acts cannot stand together. The latter act extends the limitation of suits to twenty-one years; but if the limitation of seven years would produce the same effect, then would the prior law repeal the latter, or render it a mere nullity. And this accounts for its not having been heard of for the last forty years, which may be called the period of reported causes. Its repeal, however, at that time, has no influence upon its previous effect upon the rights of these parties. It has been remarked of this law, as incontestable, that it could not convert an equitable into a legal estate. But this doctrine appears to me to do more than render the law obsolete; it renders it a mere nullity in its origin. What is gained by an estate's continuing an equitable 321*] estate? From *its inherent strength, unaided by the law, if accompanied with continued possession, it would continue a good equitable estate; and why should not the comprehensive words, "shall forever give an unquestionable title against all," be construed into a transmutation from an equitable into a legal title? How can any but a good legal title be denominated an unquestionable title? and why should not all comprise legal as well as equitable claimants? The opinion below supposes the signification of those terms to be circumscribed by the words "during the estate. But from this I must dissent, since these words do not necessarily convey that meaning, and are more properly applied to the distinction of estates into terms for years, estates for life, estates in fee, in tail, &c.; all which may be either legal or equitable. Neither can I acquiesce in that part of the opinion which considers a discharge from the purchase money of the land as a necessary consequence of giving effect to the seven years law, as against the plaintiffs below in this cause; for the lien might continue, though a legal and absolute estate be vested in the defendants below. And, to prevent the operation of this law in favor of the possession, lest the claim for the purchase money should incidentally be barred, appears to be inverting the order of things; for, by the acts limiting suits on contracts, the suits for the purchase money might by possibility be barred; while the remedy to recover the land was still in full force, being of longer duration. The superior purpose of quieting estates of freehold, also would, under 322*] that *doctrine, be controlled by the inferior one of enforcing open contracts, or implied covenants. While the most ordinary means of adjusting contracts for the sale of lands on credit remained in practice, there could be no danger, in giving credit on sales, of losing both land and money, as thec ourt supposes. But if that consequence did follow,

But under what view of the subject could these plaintiffs be held mere tenants at will to the parties plaintiffs below? or their possession any other than an adverse possession? They did not hold as the agents or representatives of those through whom they derived the title. From the time of entering into possession, they held in virtue of the estate in themselves, and not that of any other. If the idea is, that the proprietaries might at any time have entered upon them, and in that sense, the estate was held at their will, the answer is, that is one of the very cases that the act of limitation provides against; for it takes away that volition in the proprietary, unless the entry be made in twenty-one years. But the fact was not so; these tenants did not hold at the will of the proprietaries, for all those who acquired under the common terms were taken under the care of the law, and we find act upon act to regulate the proceedings of the proprietary towards them. The right to turn them out by the shoulders never existed in the proprietary; he must have resorted to his entry, or suit, to recover possession; they were consid- [*324 ered as holding a freehold, and the law did not entitle him to resume possession arbitrarily. It was the doctrine of that state, that his rights were restricted to the payment of the purchase money and quit-rents, at least until he tendered a return of advances and improvements. It cannot be imagined that the reservation of quit-rents converted the purchasers into tenants at will; neither principle. nor authority would