[78]*78The opinion of the court was delivered by
Huston, J.
(Here his honour recapitulated the facts in the cause.) — In the argument of this case here, and I may suppose in the court below, all the cases on precise, vague and removed warrants were cited. See McKinney v. Houser, 2 Smith 190. Duncan v. Curry, 3 Bin. 14, and Lauman v. Thomas, 4 Bin. 58. See also 3 Serg. & Rawle, 321-2. 10 Serg. & Rawle, 17. 15 Serg. & Rawle. 224. Maus v. Montgomery.
' And if this suit had been brought forty years ago, or if the title of defendant below, had commenced within a few years after the plaintiff’s, there would have been no error perhaps in the charge. By recurring to those cases in which this matter has been discussed,, it will appear, that in Lauman v. Thomas, the plaintiff’s warrants were dated 27th of April, 1774, surveyed in May, 1774, when returned, was uncertain; but certainly before- the 12th January, 1792, when a patent issued. The defendant’s title commenced in December, 1774, and his patent in 1776. In 3 Serg. & Rawle, 321, one title was the 3d of April; 1769, surveyed in 1772, the other a warrant in 1772. In Duncan v. Curry, both titles were dated 3d April, 1769, one surveyed in 1771, the other in 1774, and not returned until after 1795, and was clearly postponed.
Jn short, all those cases presented something very different from the present.
There was at one time but little difference in the titles, and in most ot them some possession or ownership was alleged to supply the want of return.
While the country was unsettled, a wilderness, a few years did not give much strength to a title. The war and desolation along the frontiers, on account of Lidian depredations, delayed the settlement, and occasioned allowances for not pursuing titles; rules laid down in 1772-3-4, were again adopted, as applicable after the war, in 1785-6-7, and following years. Though it was most palpable, that the reason for indulging a person in not getting a survey returned in 1774 or ’5, was no reason at all for indulging him after 1790. The deputy surveyors, before the war, had died, had removed, or were superannuated. Their papers were scattered, some of them displeased at not being in office, and their refusal to return, surveys was some excuse. Since the war their bonds could have been sued, or the board of property would have compelled them to have returned surveys.
The doctrine of our courts has not been well understood, for when it is said, a precisely descriptive warrant gives title from its date, a vague one from the time of survey, &c. it is sometimes added, and always understood, provided it is otherwise followed up with reasonable attention. It is not, and never was the law, that on taking o\it a warrant, and procuring a survey, and then neglect[79]*79ing or refusing to pay the surveyor’s fees, which was always necessary to procure a return, that a man could hold the land, without attending to it in any way, for an indefinite length of time.
Although a warrant has been surveyed, yet if not returned, the owner may change its lines, or change its place altogether, and lay it on any other vacant land any where near: until it is returned, the state has no power to collect arrears of purchase money. It never can be that a man can wait thirty or forty years, and all that time be able to say this is my land if I please, and not mine unless I please. I will take this land and pay the state for it, if the country improves, and it rises in value, or if somebody will render it valuable by improvement: but I will not take it and pay the purchase money, unless something occurs to render, it more valuable. Nor is it the law, that a man can commence procuring a title from the state, and, from pure negligence, leave it'in such situation, for more than twenty years, as.tbat he is not bound to take it, and no one else can safely take it. We have full and ample provision on this subject by our legislature. The act of the 9th of April, 1781, for establishing a land office, provides, in section nine, that all surveys ■heretofore made shall be returned into the surveyor general’s office, within nine months, and prescribes a penalty on any deputy •surveyor, to whom his fees shall be paid, who neglects to return. This continued till 5th April, 1782; when it was enacted, “ It shall be lawful for the surveyor general of this state to receive returns of such surveys, as shall appear to him to have been faithfully and ■regularly made, from the said late deputy surveyors, their heirs or legal representatives, for such further period, as to him shall seem fust and reasoTiable.” - And a saving for those who had neglected to pay fees and procure returns under the last cited act. The act of 8th April, 1785, section eight, prescribes that every deputy surveyor, shall, as soon as conveniently may be after survey made, on receiving his fees, return said survey into the surveyor general’s office; and that every survey made before the 31st December, in each year, and not returned before the last of March in next year, shall be void as to future surveys, which shall be returned sooner, and a penalty on the deputy surveyor, if the neglect is by his fault. Although this act has been supposed to be only applicable to lands in the purchase of 1784, and east of the Allegheny river, yet it is important, as shewing the sense of the legislature on. the necessity of a return of survey in due time, and the evils incident on neglect in this particular. Then came the act of 4th September, 1793, which provides, that, “All returns of surveys which have been actually executed, since the4th July, 1776, by deputy surveyors, while they acted under legal appointments, shall be received in the land office, although the said deputy surveyors may happen not to be in office at the time of the return or returns being made: provided that no returns be admitted, that were made by deputy surveyors, who have been more [80]*80than nine years out of officeThis short law is in some respects; obscure when closely examined, but it further shews strongly the sense of the legislature on the subject of keeping titles in this uncertain and unfinished state. It lays down a rule which is not easily to be gotten over by the courts. Independent of this law, who.' will say that the act of 1782, which allows returns to be received till such period as the surveyor general shall deem just and reasonable, would keep the office open forever. .
I am aware that there are cases where plaintiffs have recovered' on surveys not returned until since 1793. They will, however, be found very special cases, where the owner has proved great exertions on his part to procure returns, and fraud or' accident in preventing them. I am also aware that the owners of many tracts, who have taken possession and occupied them, sold them to others who occupied them, or transmitted them to their descendants,, have found no returns in the office.
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[78]*78The opinion of the court was delivered by
Huston, J.
(Here his honour recapitulated the facts in the cause.) — In the argument of this case here, and I may suppose in the court below, all the cases on precise, vague and removed warrants were cited. See McKinney v. Houser, 2 Smith 190. Duncan v. Curry, 3 Bin. 14, and Lauman v. Thomas, 4 Bin. 58. See also 3 Serg. & Rawle, 321-2. 10 Serg. & Rawle, 17. 15 Serg. & Rawle. 224. Maus v. Montgomery.
' And if this suit had been brought forty years ago, or if the title of defendant below, had commenced within a few years after the plaintiff’s, there would have been no error perhaps in the charge. By recurring to those cases in which this matter has been discussed,, it will appear, that in Lauman v. Thomas, the plaintiff’s warrants were dated 27th of April, 1774, surveyed in May, 1774, when returned, was uncertain; but certainly before- the 12th January, 1792, when a patent issued. The defendant’s title commenced in December, 1774, and his patent in 1776. In 3 Serg. & Rawle, 321, one title was the 3d of April; 1769, surveyed in 1772, the other a warrant in 1772. In Duncan v. Curry, both titles were dated 3d April, 1769, one surveyed in 1771, the other in 1774, and not returned until after 1795, and was clearly postponed.
Jn short, all those cases presented something very different from the present.
There was at one time but little difference in the titles, and in most ot them some possession or ownership was alleged to supply the want of return.
While the country was unsettled, a wilderness, a few years did not give much strength to a title. The war and desolation along the frontiers, on account of Lidian depredations, delayed the settlement, and occasioned allowances for not pursuing titles; rules laid down in 1772-3-4, were again adopted, as applicable after the war, in 1785-6-7, and following years. Though it was most palpable, that the reason for indulging a person in not getting a survey returned in 1774 or ’5, was no reason at all for indulging him after 1790. The deputy surveyors, before the war, had died, had removed, or were superannuated. Their papers were scattered, some of them displeased at not being in office, and their refusal to return, surveys was some excuse. Since the war their bonds could have been sued, or the board of property would have compelled them to have returned surveys.
The doctrine of our courts has not been well understood, for when it is said, a precisely descriptive warrant gives title from its date, a vague one from the time of survey, &c. it is sometimes added, and always understood, provided it is otherwise followed up with reasonable attention. It is not, and never was the law, that on taking o\it a warrant, and procuring a survey, and then neglect[79]*79ing or refusing to pay the surveyor’s fees, which was always necessary to procure a return, that a man could hold the land, without attending to it in any way, for an indefinite length of time.
Although a warrant has been surveyed, yet if not returned, the owner may change its lines, or change its place altogether, and lay it on any other vacant land any where near: until it is returned, the state has no power to collect arrears of purchase money. It never can be that a man can wait thirty or forty years, and all that time be able to say this is my land if I please, and not mine unless I please. I will take this land and pay the state for it, if the country improves, and it rises in value, or if somebody will render it valuable by improvement: but I will not take it and pay the purchase money, unless something occurs to render, it more valuable. Nor is it the law, that a man can commence procuring a title from the state, and, from pure negligence, leave it'in such situation, for more than twenty years, as.tbat he is not bound to take it, and no one else can safely take it. We have full and ample provision on this subject by our legislature. The act of the 9th of April, 1781, for establishing a land office, provides, in section nine, that all surveys ■heretofore made shall be returned into the surveyor general’s office, within nine months, and prescribes a penalty on any deputy •surveyor, to whom his fees shall be paid, who neglects to return. This continued till 5th April, 1782; when it was enacted, “ It shall be lawful for the surveyor general of this state to receive returns of such surveys, as shall appear to him to have been faithfully and ■regularly made, from the said late deputy surveyors, their heirs or legal representatives, for such further period, as to him shall seem fust and reasoTiable.” - And a saving for those who had neglected to pay fees and procure returns under the last cited act. The act of 8th April, 1785, section eight, prescribes that every deputy surveyor, shall, as soon as conveniently may be after survey made, on receiving his fees, return said survey into the surveyor general’s office; and that every survey made before the 31st December, in each year, and not returned before the last of March in next year, shall be void as to future surveys, which shall be returned sooner, and a penalty on the deputy surveyor, if the neglect is by his fault. Although this act has been supposed to be only applicable to lands in the purchase of 1784, and east of the Allegheny river, yet it is important, as shewing the sense of the legislature on. the necessity of a return of survey in due time, and the evils incident on neglect in this particular. Then came the act of 4th September, 1793, which provides, that, “All returns of surveys which have been actually executed, since the4th July, 1776, by deputy surveyors, while they acted under legal appointments, shall be received in the land office, although the said deputy surveyors may happen not to be in office at the time of the return or returns being made: provided that no returns be admitted, that were made by deputy surveyors, who have been more [80]*80than nine years out of officeThis short law is in some respects; obscure when closely examined, but it further shews strongly the sense of the legislature on the subject of keeping titles in this uncertain and unfinished state. It lays down a rule which is not easily to be gotten over by the courts. Independent of this law, who.' will say that the act of 1782, which allows returns to be received till such period as the surveyor general shall deem just and reasonable, would keep the office open forever. .
I am aware that there are cases where plaintiffs have recovered' on surveys not returned until since 1793. They will, however, be found very special cases, where the owner has proved great exertions on his part to procure returns, and fraud or' accident in preventing them. I am also aware that the owners of many tracts, who have taken possession and occupied them, sold them to others who occupied them, or transmitted them to their descendants,, have found no returns in the office. In such cases the land officers-issue orders and have returns made yet, and rightly, for no injury is done to any one.' So if land has been surveyed, and no adverse' claimant, as improver, or by warrant, has any claim to the land, return's are received, and may be received, from the present deputy surveyors; but where, as in the present case, a vague or' removed warrant has been surveyed, and then neglected thirty years, or even a less time, and no excuse shown, it was not within a “just and reasonable time” to receive the return, after another' had bought and paid for it, as derelict. In another point of view, the title of the plaintiff b elow was irregular. He and Long applied-to the board of property, who instead, of accepting his draft, made out and signed by William Lyon for John Armstrong, ordered a resurvey by the deputy surveyor of the county,, who was not to make-a return to the surveyor general, but to' that board, noting the-interference, if any, with other claims. After this, the draft made out by William Lyon for John Armstrong, was carried to the office of the surveyor general, and by him accepted and filed, as a return of' survey. It was entirely irregular in him so to receive and file this return. The matter was not before him, it was sub-judice; a very proper order had been made, and it is certain the board thought it not of course to accept a return of this survey. That whether it could be accepted, depended on facts to be ascertained, and the surveyor general-had no right to take the matter out of their hands. In Harris’s Lessee v. Monks, 2 Serg. & Rawle, 557, it was decided that an act of the surveyor general, respecting a return of survey in a case before the board of property, and respecting which they'had made an order, was totally vow. It is true that was a case in which a caveat had been entered, but the principle, that after a matter was before the board, and after they had taken order on it, it was illegal in the surveyor general to do any act inconsistent with, or superseding their order, is correct, and applies to this case.
[81]*81William Lyon had no right to return a survey, even while John Armstrong was in office. I have no hesitation in saying that he did not make the paper in question for the purpose-of being carried to the land office as a return, but for the private use of the owner. There have been cases, where a return by an assistant or deputy surveyor, has been received and filed in the surveyor general’s office, as a return. I will not say such return so filed is void, but it was always an irregularity, and is particularly objectionable here, independent of other reasons.
The act of 1798, last cited, does, it is' true, mention surveys made since 1776, and this was made long before. I would not infer from this, that surveys made before, might still be accepted. I rather suppose such surveys were considered as out of all reasonable time, and that it alluded to surveys under the act of 1785.
The patent does not alter the case. In this state the inquiry in an ejectment is not who has the patent, but who ought to have it. On the- whole, we are of opinion, that under the acts of assembly, under the principles on which all acts of limitations are made, the return of survey ought not to have been accepted, so far as it interfered with the survey of the defendant. That although a survey before the war may yet be accepted, where possession has accompanied it, or perhaps where there is no adverse claim to the land; yet the peace and quiet of the community require, that where any owner of a vague, removed, or perhaps in some cases, a precise warrant, has suffered it to remain unreturned for more than twenty-one years; has kept it in his power to return it as laid, or change it, to pay residue of purchase money, or not to pay it; has exercised no act of ownership; has not claimed it, or returned it for taxation; the state and the citizens had a right to consider it as derelict, and whoever, under such circumstances, purchased and paid for it, has a good title. There must be an end to these half titles sometime. It cannot be at the option of an individual, for half a century, whether he will take a tract of land, or not take it; at all events, his option is at an end, when another person acquires a right to it.
Judgment reversed, and a venire facias de novo awarded.