Tilghman C. J.
after stating the case, delivered his opinion as follows.
The reasons which have been urged on the argument of this cause for annulling the decree of the Orphan’s Court are, 1. That William ,had no guardian at the time of the valuation, and the Orphan’s Court were ignorant of that circumstance, it not being stated, as it ought to have been in his brother John’s petition. 2. That John Elliot fraudulently concealed from the jury the real quantity of land, which was in fact 19 acres and 13. perches more than was mentioned in the patent. 3. That whether John was guilty of fraud or not, still, as the jury were mistaken as to quantity, there ought to be a new valuation. It is also urged as an additional reason, that there were valuable fisheries on the island, which ought to have been specified in John Elliot’s petition, but were omitted. On the other hand the appellee contends, that William Elliot was sufficiently represented by his' natural guardian (his grandfather) Alexander Lozury. That he the appellee was guilty of no fraud as to the quantity of land, and that' there is no proof that the real quantity exceeds that mentioned in the patent; and as to the fisheries, he says that the jury were informed of them and took them into consideration in their valuation; he also says that the acts of William Elliot and of his guardian James Ross esquire, since the valuation, amount to a confirmation of it.
As this plea of confirmation, goes in bar of William Elliot’s claim, it will be necessary to consider it in the first instance.
Mr. Ross who lived at Pittsburg had no particular know[8]*8ledge of the island in Dauphin county, nor is there the least reason to suppose that he knew of any objection to the valuation, or did any act with a view to confirm what might otherwise be invalid. He took for granted that the island had been legally assigned to John Elliot, and consequently demanded and received from him the interest of the money which was due to his ward William Elliot. It appears also, that he consented to an arrangement between John and West Elliot, by which West, who took some land of which their father died seised in Allegheny county, was to become paymaster to William for his share of the valuation of the island. There is no pretence for an argument founded on this conduct of Mr. Ross; he acted with propriety and fidelity, but never had it in contemplation to give up any right of his ward’s. And even if he had so intended, the law would not have permitted him. A guardian, has no power to relinquish the title of his ward; his release Would be of no validity. Neither do I see any thing in the conduct of William Elliot after he came to age, which can strengthen the title of John. All that he did was to settle with his guardian Mr. Ross. But even if he had settled with his brother John, soon after his coming to age, without knowing of wrongs which might have been done to him in the valuation of the island, and had petitioned for redress as soon as those wrongs were made known to him, I cannot think that a settlement under such circumstances would have stood in the way of his redress. The law looks with a jealous eye on settlements made by infants soon after their arrival at age, and before they are fully acquainted with their affairs.
Having disposed of this previous question, I will now consider the reasons offered by William Elliot for annulling the proceedings in the Orphan’s Court.
In a petition for valuation and partition of an intestate estate, all material circumstances should be mentioned. If there are infants concerned, it should be so stated, in order that the court may appoint guardians to take charge of their interests. But the counsel for the appellant went too far in contending, that the proceedings were void for want of a guardian. That is a position too broad for this court to adopt, unless it could be shown that it rests on some positive injunction of law; because it would shake the foundation of [9]*9many estates. A petition to the Orphan’s Court for a valuation, is not like an adversary suit at common law, where infant defendant must appear by guardian, or it is error. But the want of a guardian is certainly an important circumstance, which makes it incumbent on the court to look well to the proceedings, and to lend a ready ear to the complaint of the infant who thinks himself aggrieved.
Although William Elliot had no guardian appointed by the court, and although I think it proper for the court to appoint guardians in all instances previous to the partition or valuation of an intestate’s estate, yet the infant in this case cannot be considered as altogether unprotected. The grandfather, Alexander Lowry, was equally near to all the children of Daniel Elliot, and it must not be forgotten that he made very active exertions to secure the title of the land now in. question, the patent for which was issued to him, intrust for his grand-children. He received notice of the time at which, the inquest was to be held, and attended, professedly as the friend of all the children. William, was at that time living with him; and had the Orphan’s Court been apprized of his infancy, I should suppose that there could have been no person so proper as the grandfather, to be appointed as guardian. Under these circumstances it appears to me that we should confine our attention to the enquiry, whether William Elliot was really injured by the valuation of the island. If he was, be is entitled to redress; but if not, it would be improper to vacate the proceedings, merely because no guardian was appointed previous to the valuation.
As to the fisheries, it would have been better if they had been mentioned in John Elliot’s petition. But as there is positive proof that the jury took them into consideration, there is no reason to say, that any substantial injury has been sustained. We must not suffer ourselves to be carried away by the present value of the island, but consider its value in the year 1799. The unexampled, prosperity of the United States since that time, has made a prodigious difference in the price of lands, and these fisheries appear in particular to have risen in value. In considering this matter, I am struck with the circumstance, of no attempt being made By the appellant to prove that the island was undervalued, or that any person would have given more than the estimate [10]*10of the jury. On the contrary it is proved that ten of the jury thought the valuation too high, and were induced to fix it at 10l. an acre, only in consequence of one of their brethren’s asserting that he himself would give that price. And. had the United States been involved in the wars of Europe,, instead of enjoying the blessings of peace and neutrality, perhaps at this moment few of us would be willing to pay 10l. an acre for the best island in the Susquehanna.
If then there was no wrong in the price by the acre, it only remains to be considered whether there has been any material error with respect to quantity. I do not think that the charge of fraudulent concealment has been established against 'John Elliot. Its support rests principally on the proof of bis declaration, when he offered it for sale, that there was the quantity of between 240 and 250 acres nett.
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Tilghman C. J.
after stating the case, delivered his opinion as follows.
The reasons which have been urged on the argument of this cause for annulling the decree of the Orphan’s Court are, 1. That William ,had no guardian at the time of the valuation, and the Orphan’s Court were ignorant of that circumstance, it not being stated, as it ought to have been in his brother John’s petition. 2. That John Elliot fraudulently concealed from the jury the real quantity of land, which was in fact 19 acres and 13. perches more than was mentioned in the patent. 3. That whether John was guilty of fraud or not, still, as the jury were mistaken as to quantity, there ought to be a new valuation. It is also urged as an additional reason, that there were valuable fisheries on the island, which ought to have been specified in John Elliot’s petition, but were omitted. On the other hand the appellee contends, that William Elliot was sufficiently represented by his' natural guardian (his grandfather) Alexander Lozury. That he the appellee was guilty of no fraud as to the quantity of land, and that' there is no proof that the real quantity exceeds that mentioned in the patent; and as to the fisheries, he says that the jury were informed of them and took them into consideration in their valuation; he also says that the acts of William Elliot and of his guardian James Ross esquire, since the valuation, amount to a confirmation of it.
As this plea of confirmation, goes in bar of William Elliot’s claim, it will be necessary to consider it in the first instance.
Mr. Ross who lived at Pittsburg had no particular know[8]*8ledge of the island in Dauphin county, nor is there the least reason to suppose that he knew of any objection to the valuation, or did any act with a view to confirm what might otherwise be invalid. He took for granted that the island had been legally assigned to John Elliot, and consequently demanded and received from him the interest of the money which was due to his ward William Elliot. It appears also, that he consented to an arrangement between John and West Elliot, by which West, who took some land of which their father died seised in Allegheny county, was to become paymaster to William for his share of the valuation of the island. There is no pretence for an argument founded on this conduct of Mr. Ross; he acted with propriety and fidelity, but never had it in contemplation to give up any right of his ward’s. And even if he had so intended, the law would not have permitted him. A guardian, has no power to relinquish the title of his ward; his release Would be of no validity. Neither do I see any thing in the conduct of William Elliot after he came to age, which can strengthen the title of John. All that he did was to settle with his guardian Mr. Ross. But even if he had settled with his brother John, soon after his coming to age, without knowing of wrongs which might have been done to him in the valuation of the island, and had petitioned for redress as soon as those wrongs were made known to him, I cannot think that a settlement under such circumstances would have stood in the way of his redress. The law looks with a jealous eye on settlements made by infants soon after their arrival at age, and before they are fully acquainted with their affairs.
Having disposed of this previous question, I will now consider the reasons offered by William Elliot for annulling the proceedings in the Orphan’s Court.
In a petition for valuation and partition of an intestate estate, all material circumstances should be mentioned. If there are infants concerned, it should be so stated, in order that the court may appoint guardians to take charge of their interests. But the counsel for the appellant went too far in contending, that the proceedings were void for want of a guardian. That is a position too broad for this court to adopt, unless it could be shown that it rests on some positive injunction of law; because it would shake the foundation of [9]*9many estates. A petition to the Orphan’s Court for a valuation, is not like an adversary suit at common law, where infant defendant must appear by guardian, or it is error. But the want of a guardian is certainly an important circumstance, which makes it incumbent on the court to look well to the proceedings, and to lend a ready ear to the complaint of the infant who thinks himself aggrieved.
Although William Elliot had no guardian appointed by the court, and although I think it proper for the court to appoint guardians in all instances previous to the partition or valuation of an intestate’s estate, yet the infant in this case cannot be considered as altogether unprotected. The grandfather, Alexander Lowry, was equally near to all the children of Daniel Elliot, and it must not be forgotten that he made very active exertions to secure the title of the land now in. question, the patent for which was issued to him, intrust for his grand-children. He received notice of the time at which, the inquest was to be held, and attended, professedly as the friend of all the children. William, was at that time living with him; and had the Orphan’s Court been apprized of his infancy, I should suppose that there could have been no person so proper as the grandfather, to be appointed as guardian. Under these circumstances it appears to me that we should confine our attention to the enquiry, whether William Elliot was really injured by the valuation of the island. If he was, be is entitled to redress; but if not, it would be improper to vacate the proceedings, merely because no guardian was appointed previous to the valuation.
As to the fisheries, it would have been better if they had been mentioned in John Elliot’s petition. But as there is positive proof that the jury took them into consideration, there is no reason to say, that any substantial injury has been sustained. We must not suffer ourselves to be carried away by the present value of the island, but consider its value in the year 1799. The unexampled, prosperity of the United States since that time, has made a prodigious difference in the price of lands, and these fisheries appear in particular to have risen in value. In considering this matter, I am struck with the circumstance, of no attempt being made By the appellant to prove that the island was undervalued, or that any person would have given more than the estimate [10]*10of the jury. On the contrary it is proved that ten of the jury thought the valuation too high, and were induced to fix it at 10l. an acre, only in consequence of one of their brethren’s asserting that he himself would give that price. And. had the United States been involved in the wars of Europe,, instead of enjoying the blessings of peace and neutrality, perhaps at this moment few of us would be willing to pay 10l. an acre for the best island in the Susquehanna.
If then there was no wrong in the price by the acre, it only remains to be considered whether there has been any material error with respect to quantity. I do not think that the charge of fraudulent concealment has been established against 'John Elliot. Its support rests principally on the proof of bis declaration, when he offered it for sale, that there was the quantity of between 240 and 250 acres nett. The patent mentions 220 acres 147 perches, which, with the usual allowance of six per cent., would make about 234 acres nett. If to this we add nine or ten acres which John Elliot might suppose to lie between the bank and the water, and which his counsel contend it was not the custom to include in the measurement of an island, we shall have the quantity of between 240 and 250 acres. If there is ground for the assertion, that this was the usual manner of measuring islands, it will be too harsh to charge John Elliot with fraud, because he told the jury that they were to value the quantity of land contained in the patent only. It must be supposed that the jury were not ignorant of the usual mode of measurement, and if so, they must have known that when the quantity of 220 acres 147 perches was talked of, the usual allowance of six per cent., and the land between the bank and the river were thrown in. The appellants say that the real quantity is 240 acres with allowance, &c., and this they prove by Mr. Smith, who has surveyed it. On the contrary there is the survey of the sworn officer of the commonwealth, Bartram Galbraith, previous to the issuing of the patent, and a survey made in the year 1763, when there was a partition of the island, agreeing with Galbraith's survey except as to 2 acres 13 perches, which may be accounted for by the washing away of the land by the rapidity of the current. Galbraith made his survey going as near to the bank as was practicable, but keeping on the bank. Smithy when the bank was difficult, [11]*11went down on the beach. The land between the bank and the water is intrinsically of very little value. It is useful for fisheries, but if the fisheries were in this case valued by the jury, the land on the beach could make no difference in that respect. I am inclined to think that the usual mode of measuring islands, has been as the counsel for the appellee suppose. If so, we ought not to presume that the jury were ignorant of it; and in that case the valuation was complete, for when the jury valued the quantity mentioned in the patent, they knew that the beach was thrown in. When I consider all the circumstances of this case, and that William Elliot is the only one of the family who complains, I cannot help thinking that the great rise of the value of land, is the real cause of this petition. William Elliot's loss of quantity, by his own showing, is not quite four acres, and for this he asks us to annul all former proceedings, and make a new valuation of his father’s estate, under circumstances essentially different from what they were, when the possession was delivered to his brother John. If he had petitioned for a resurvey of the island, and an allowance at the rate of 10l. an acre for any surplus which could bs fairly made out, with interest from tbe time when he ought to have received the principal, he would have had reason on his side. But after the course which he has taken, and the expense to which he has put his brother by this suit, I see no cause for reversing the decree of the Orphan’s Court. My opinion therefore is that the sentence should be affirmed.
Yeates J.
I have no difficulty whatever in my mind, as to the jurisdiction of this court upon the present appeal. The power is expressly given to us, by the 9th section of the act of assembly of 1713.
In considering the questions before us, I throw out of view, all that has been urged respecting the affirmance of the valuation by West Elliot and James Ross esquires, the former guardians of the appellants. It was not competent to them in their characters of guardians, to confirm proceedings in the Orphan’s Court, if they were invalid, so as to bind their ward when he arrived at full age. At all events, as they were ignorant of the circumstances, which have led [12]*12to the present appeal, no acts of confirmation on their part; cou'd produce any legal effect.
Upon the most attentive consideration of the testimony laid before us, I can see no rational grounds, from which I can infer that John Elliot has been guilty of an actual fraud in conducting the proceedings in the Orphan’s Court.
The next inquiry is, have such mistakes occurred in this case, as on sound principles of law and equity, should invalidate the appraisement of the real estate of Daniel Elliot deceased, in the county of Dauphin? It cannot admit of a moment’s doubt, that all the children of the intestate are entitled to a fair, legal and conscionable proportion of their father’s property.
We well know the manner in which islands in the river Susquehanna have usually been admeasured. The extreme top of the bank of the river has always been deemed the point beyond which they will not go; for this plain reason, that where the soil has been washed away in a course of time by the floods, the intermediate space between the bank and the margin of the stream, being frequently covered with water, is not susceptible of cultivation. The soil too is generally carried off, and is succeeded by sand and stones deposite d as its substitute. I cannot therefore assent to the position taken by the counsel of the appellant, that the admeasurement of the island should have been usque ad filum aquæ in common times. The beach may serve as a landing place for a fishery, but as land for the purposes of tillage, it cannot be placed on a footing of equality with other parts of the island.
In forming an estimate of that part of the island in controversy, we must transport ourselves back to December 1798, when the inquisition was taken. The rise of landed property has been so rapid, particularly in this state, that unless gross palpable injustice has taken place, we cannot permit ourselves to take into consideration the amount it would now produce upon the present dispute.
The profits of fisheries in the Susquehanna are uncertain and vary in successive years. But the fact is ascertained, that the fisheries appertaining to this island were taken into the view of the jury, and valued with the land. The jurors came from the neighbourhood, and could not be ignorant of [13]*13the number of pools which were made use of. They wóuld not set a value on sandy shore, equal to the tillable portion of the island, and the valuation of the beach would necessarily be comprized in their-estimate of the fisheries. We learn from the testimony, that until George Bower one of the jurors offered to give 10l. per acre for the island and its appurtenances, five sixths of them did not exceed 8l. per acre in their valuation. — The survey by Bartram Galbraith on the 12th of April 1798, on which the patent was founded, made the area of that part of the island, which was contracted for by Daniel Elliot in his life time, 223 acres 147 perches. Thomas Smith's survey in November 1807 made it 240 acres, producing a difference of 19 acres 13 perches. This was procured ex parte, at the instance of James Hamilton the guardian of the appellant, (who had been one of the jurors on the valuation) but it does not specify the courses and distances which were run, so as to enable us to compare them with those run by Galbraith nine years and seven months previously, and ascertain in what particulars they differ. Frederick Zimmerman deposed in 1808, that the water was then three feet deep, in part of the line run by Smith. But we have an important fact disclosed by the return to the writ de partitione facienda, issued by Joseph Galloway against George Stevenson and Mary his wife. That part of the island allotted to Galloway, who afterwards contracted with Daniel Elliot, was surveyed in 1762, and found to contain 223 acres. Stevenson was present at that partition, as we discover by the inquisition; and I cannot bring myself to believe, that Stevenson, who was an excellent practical surveyor, and had been for many years deputy surveyor of the county of Tork, would have consented to an admeasurement, different from the common and usual mode between individuals. Is it not more natural to conceive that an island in the Susquehanna near the Conewago falls, where the current is swift, as we have been told, would have decreased two acres thirteen perches within a period of 36 years, than that it should have increased seventeen acres in the course of nearly 46 years, according to Smith's survey. My mind does not hesitate on the subject.
Take the case in the most favourable view for the appellant, it presents at most on this part of the question a dubi[14]*14ous equity, which the court wiJI not at this day relieve, according to the doctrine of this court, in Shortz v. Quigley, 1 Binn. 225.
It remains to be inquired, whether the want of a guardian duly appointed by the Orphan’s Court previous to the valuation, is such an error, as demands of the court a reversal of this decree?
It is certainly true, that an .infant must defend a suit by his guardian,.and that every court has an inherent power to appoint a guardian ad litem. Neither of the intestate acts of 1705 or 1764, directs that a guardian shall be appointed for minors interested in a partition or appraisement of real estate in the Orphan’s Court. But the principles of natural justice require, that no one’s interests shall be affected without giving him an opportunity of being heard. In pursuance hereof, the usual order of the Orphan’s Court has been, that notice should be given to the parties interested, of the time of the partition or valuation, and upon application to the court, guardians are appointed for the minor children. It must here be remarked, that the decree of confirmation of a valuation of lands, is not generally founded on proceedings of an adversary nature. The equal policy of our system of laws, requires a division of the lands of a father dying intestate, or their true value, among his children; and an impartial jury upon their oaths and affirmations, and personal view and examination, are the means by which it is effected. I know of no case, wherein it has been decided, that under the intestate acts of 1705 or 1764, a party, or guardian of a minor who was a party, living out of the bailiwick, of the sheriff, should receive notice, or the inquisition be set aside upon that ground. If Mr. Ross living at Pittsburg, had been the guardian when this valuation was made, I do not see, that a mere want of notice to him, without strong proof of injustice, would justify us in annulling these proceedings. In laying down a rule which is to operate in all cases, it may well become us to consider the influence it may have in instances previous to the adoption of the rule, because the retrospective operation of it may shake many titles. I will put an instance to exemplify my observation. I should deem it a very proper general regulation in the several Orphan’s Courts, that previous to the valuation of lands held under [15]*15ancient surveys, the same should be resurveyed, in order to ascertain the true quantity; but if former appraisements are to be declared invalid merely for having a surplus quantity, it would have a serious operation in many instances.
The sheriff has returned here that the valuation of the premises was made in the presence of the parties interested: The question is, was it so made?
That the minor children of Daniel Elliot were represented in truth and in fact, when the valuation was made, there can be no doubt. Alexander Lowry, their maternal grandfather, attended for the express purpose of seeing that justice was done. William Elliot the appellant was brought up and educated in his family, and actually lived with him in an adjoining county, when the appraisement took place. His affection for these children, and the interest he had in their welfare, are amply demonstrated by paying a very considerable sum of his own money to complete the contract made many years before with Mr. Galloway, and patent the land for their use. For all his expenditures and trouble he made no claim or demand. No person whatever could be a more proper guardian for these minors, nor feel more deeply interested for their advancement in life. There is no reason to presume, that he did not contribute every effort in his power to do equal justice to all the children; and I consider the appellant as fully represented by his grandfather and nearest friend.
On the most mature consideration, I see no legal or equitable ground for reversing these proceedings, and am therefore of opinion, that the decree of the Orphan’s Court should fee affirmed.
Brackenridge J. gave no opinion, having been formerly guardian of the appellant.
Decree confirmed.