The opinion of the court was delivered, by
Strong, J.
The first surveys made on the warrants under which the plaintiff claims, were returned into the land office on the 15th day of January 1795. The warrants had. therefore then performed their office. The deputy surveyor had exhausted his power. No act which he could do after having made the return could enlarge or diminish the rights of the warrantee. The warrant Avas no longer in his hands, for he had sent it back to the surveyor-general, Avith a description of the mode of its execution. That a resurvey amounts to nothing without an order for it, may be shown by abundant authority. It has been assorted from the very beginning of the administration of our land system, and it has never been seriously questioned: Drinker v. Halliday, 2 Yeates 89; Porter v. Ferguson, 3 Id. 60; Smith v. Faltz, 4 S. & R. 478; Deal v. McCormick, 3 Id. 343; Vickroy v. Skelly, 14 Id. 377; Oyster v. Bellas, 2 Watts 379.
Nor does it matter -that the return has not been formally accepted. With the acceptance, the deputy surveyor has nothing to do. That is a matter exclusively betAveen the CommonAvealth and the purchaser. Without an order of resurvey, therefore, there Avas no authority in the deputy surveyor to locate the plaintiff’s warrants a second time, and his attempt to do so Avas an entirely unofficial act, Avhich gave to the warrantee no rights, either against the CommonAvealth or any other claimant. That the surrender of the warrant and the return of the survey made thereon, determines the authority of the deputy suiwey Avithout regard to the subsequent action of the land office, is not only reasonable, but it is the doctrine of the cases. Thus, in Deal v. McCormick, it was said that it is the completion of the survey on the ground that renders a subsequent survey invalid. In that case the first had not been accepted, yet the second Avas void. So in Drinker v. Halliday, the authority of the deputy was said to expire when the survey Avas complete on the ground. It is not meant to say that the dojDuty may not correct his survey Avhile the. Avarranfc remains in his hands, but certainly when it has passed from him into the land office, his power ceases.
[203]*203Ilollcer, under whom the plaintiff claims, acquired nothing, then, as against any prior appropriation of the land, by the resurveys which he caused to be made in 1808, and returned into the office in 1811. These surveys and returns may therefore be thrown out of the case, for whatever-might be the effect of their acceptance as against any persons claiming from the Commonwealth by title acquired after 1811, they cannot affect the Nicholson surveys made in 1793-4, and returned January 15th 1795. The plaintiff must stand or fall with the first surveys, and the rights of the parties depend upon what was done with the warrants before they were returned into the land office.
The twenty-seven warrants of Holker were dated September 6th 1792. They were all indescriptive. The six warrants of Nicholson, under which the defendant claims, were dated January 3d 1793. They also were indescriptive. All those warrants were directed to the same deputy surveyor. Precisely when they came into his hands does not appear, but surveys were made upon them all, and all the surveys were returned on the same day, January loth 1795. The land embraced in the survey of four of the Nicholson warrants, being the land now in controversy, was marked in the return as in dispute, and the draft and survey remained on the disputed files until 1843, when a patent was granted to the defendant, who had succeeded to the Nicholson title. It then appears that the warrants of Holker wore the oldest, but that the returns of .the surveys on both his and Nicholson’s were simultaneous. Neither party has any advantage in priority of return. If, therefore, the title commenced with the date of the warrants, that of the plaintiff would be the better, because older. But it did not. As already stated, the warrants were indescriptive. The rules which define tho inception of an original title are plain, and thoroughly settled. Where a warrant is descriptive, and not shifted in its location, title commences with its date. If it be shifted, the title will not commence until the survey be returned into the land office and accepted, except as against persons who have actual notice of the survey. In the excepted case, it commences with the survey. But -when the warrant is indescriptive, title is acquired under it only from the time of the survey: Lessee of Lauman v. Thomas, 4 Binn. 51; Lilly v. Pascal, 2 S. & R. 398. It never has been hold that the holder of an indescriptive warrant acquires any interest in land, even by relation, until his warrant has been located by a survey. Until then, such warrants give no title to land whatever: Heath v. Knapp, 10 Watts 405; Shoemaker v. Huffnagle, 4 W. & S. 442; Lessee of Armstrong v. Morgan, 3 Yeates 529. Until then, there is nothing in the land office or on the ground to give tho Commonwealth or a purchaser notice that the land has been appropriated.
[204]*204As between the holders of the Holker and the Nicholson warrants, then, the superiority of right depends not- upon the date of the warrants, but upon the priority of the surveys made under them ; for it is not pretended that all the surveys were not returned within a reasonable time.
It is argued on behalf of the plaintiff that the return made into the land office shows the Holker warrants to have been first in the deputy surveyor’s hands. It is next insisted that it was the duty of the officer to execute warrants according to their priority, and hence that it must be presumed the Holker warrants were first located. The argument is not supported by the facts of the case. The return does not show, nor is there anything in the case stated to show, that the warrants of Holker, under which the plaintiff claims the land in contest, were in the deputy surveyor’s hands on the 20th of June 1793, when the Nicholson warrants were located. And even if they were, it is not clear that it was the duty of the surveyor to locate them first. There can, therefore, no presumption arise that the surveys made under them were earlier than those which were made for the four Nicholson warrants. It was said, indeed, in Gray v. McCleary, 4 Yeates 495, that the rule always has been, where there are conflicting rights in the hands of the deputy to be-executed, to execute them according to their priority. The rule is undoubtedly reasonable and just. But it can have no application to indescriptive warrants. They are not conflicting. Applications and descriptive warrants may conflict, for they may call for the same tract of land. Such were the applications in Gray v. McCleary. With such in his hands it would open a wide door for favouritism, confusion, and fraud, were the deputy surveyor permitted to locate the younger first. But a deputy surveyor who holds two indescriptive warrants lodged with him by two different owners, is under no obligation to make a survey upon either of them until the owner of the warrant shows him the vacant land which he wishes to appropriate. In one of the directions given by the land office to district surveyors, they are required to execute warrants within six months, “if the party or his agent will attend and show the lands to be surveyed,” and when a survey is made, to make return thereof within six months, if the party pay the fees, or to make return that the party did not show the lands, or did not pay the fees, or some other reasonable excuse.
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The opinion of the court was delivered, by
Strong, J.
The first surveys made on the warrants under which the plaintiff claims, were returned into the land office on the 15th day of January 1795. The warrants had. therefore then performed their office. The deputy surveyor had exhausted his power. No act which he could do after having made the return could enlarge or diminish the rights of the warrantee. The warrant Avas no longer in his hands, for he had sent it back to the surveyor-general, Avith a description of the mode of its execution. That a resurvey amounts to nothing without an order for it, may be shown by abundant authority. It has been assorted from the very beginning of the administration of our land system, and it has never been seriously questioned: Drinker v. Halliday, 2 Yeates 89; Porter v. Ferguson, 3 Id. 60; Smith v. Faltz, 4 S. & R. 478; Deal v. McCormick, 3 Id. 343; Vickroy v. Skelly, 14 Id. 377; Oyster v. Bellas, 2 Watts 379.
Nor does it matter -that the return has not been formally accepted. With the acceptance, the deputy surveyor has nothing to do. That is a matter exclusively betAveen the CommonAvealth and the purchaser. Without an order of resurvey, therefore, there Avas no authority in the deputy surveyor to locate the plaintiff’s warrants a second time, and his attempt to do so Avas an entirely unofficial act, Avhich gave to the warrantee no rights, either against the CommonAvealth or any other claimant. That the surrender of the warrant and the return of the survey made thereon, determines the authority of the deputy suiwey Avithout regard to the subsequent action of the land office, is not only reasonable, but it is the doctrine of the cases. Thus, in Deal v. McCormick, it was said that it is the completion of the survey on the ground that renders a subsequent survey invalid. In that case the first had not been accepted, yet the second Avas void. So in Drinker v. Halliday, the authority of the deputy was said to expire when the survey Avas complete on the ground. It is not meant to say that the dojDuty may not correct his survey Avhile the. Avarranfc remains in his hands, but certainly when it has passed from him into the land office, his power ceases.
[203]*203Ilollcer, under whom the plaintiff claims, acquired nothing, then, as against any prior appropriation of the land, by the resurveys which he caused to be made in 1808, and returned into the office in 1811. These surveys and returns may therefore be thrown out of the case, for whatever-might be the effect of their acceptance as against any persons claiming from the Commonwealth by title acquired after 1811, they cannot affect the Nicholson surveys made in 1793-4, and returned January 15th 1795. The plaintiff must stand or fall with the first surveys, and the rights of the parties depend upon what was done with the warrants before they were returned into the land office.
The twenty-seven warrants of Holker were dated September 6th 1792. They were all indescriptive. The six warrants of Nicholson, under which the defendant claims, were dated January 3d 1793. They also were indescriptive. All those warrants were directed to the same deputy surveyor. Precisely when they came into his hands does not appear, but surveys were made upon them all, and all the surveys were returned on the same day, January loth 1795. The land embraced in the survey of four of the Nicholson warrants, being the land now in controversy, was marked in the return as in dispute, and the draft and survey remained on the disputed files until 1843, when a patent was granted to the defendant, who had succeeded to the Nicholson title. It then appears that the warrants of Holker wore the oldest, but that the returns of .the surveys on both his and Nicholson’s were simultaneous. Neither party has any advantage in priority of return. If, therefore, the title commenced with the date of the warrants, that of the plaintiff would be the better, because older. But it did not. As already stated, the warrants were indescriptive. The rules which define tho inception of an original title are plain, and thoroughly settled. Where a warrant is descriptive, and not shifted in its location, title commences with its date. If it be shifted, the title will not commence until the survey be returned into the land office and accepted, except as against persons who have actual notice of the survey. In the excepted case, it commences with the survey. But -when the warrant is indescriptive, title is acquired under it only from the time of the survey: Lessee of Lauman v. Thomas, 4 Binn. 51; Lilly v. Pascal, 2 S. & R. 398. It never has been hold that the holder of an indescriptive warrant acquires any interest in land, even by relation, until his warrant has been located by a survey. Until then, such warrants give no title to land whatever: Heath v. Knapp, 10 Watts 405; Shoemaker v. Huffnagle, 4 W. & S. 442; Lessee of Armstrong v. Morgan, 3 Yeates 529. Until then, there is nothing in the land office or on the ground to give tho Commonwealth or a purchaser notice that the land has been appropriated.
[204]*204As between the holders of the Holker and the Nicholson warrants, then, the superiority of right depends not- upon the date of the warrants, but upon the priority of the surveys made under them ; for it is not pretended that all the surveys were not returned within a reasonable time.
It is argued on behalf of the plaintiff that the return made into the land office shows the Holker warrants to have been first in the deputy surveyor’s hands. It is next insisted that it was the duty of the officer to execute warrants according to their priority, and hence that it must be presumed the Holker warrants were first located. The argument is not supported by the facts of the case. The return does not show, nor is there anything in the case stated to show, that the warrants of Holker, under which the plaintiff claims the land in contest, were in the deputy surveyor’s hands on the 20th of June 1793, when the Nicholson warrants were located. And even if they were, it is not clear that it was the duty of the surveyor to locate them first. There can, therefore, no presumption arise that the surveys made under them were earlier than those which were made for the four Nicholson warrants. It was said, indeed, in Gray v. McCleary, 4 Yeates 495, that the rule always has been, where there are conflicting rights in the hands of the deputy to be-executed, to execute them according to their priority. The rule is undoubtedly reasonable and just. But it can have no application to indescriptive warrants. They are not conflicting. Applications and descriptive warrants may conflict, for they may call for the same tract of land. Such were the applications in Gray v. McCleary. With such in his hands it would open a wide door for favouritism, confusion, and fraud, were the deputy surveyor permitted to locate the younger first. But a deputy surveyor who holds two indescriptive warrants lodged with him by two different owners, is under no obligation to make a survey upon either of them until the owner of the warrant shows him the vacant land which he wishes to appropriate. In one of the directions given by the land office to district surveyors, they are required to execute warrants within six months, “if the party or his agent will attend and show the lands to be surveyed,” and when a survey is made, to make return thereof within six months, if the party pay the fees, or to make return that the party did not show the lands, or did not pay the fees, or some other reasonable excuse. And this court has held that it is the duty of the owner to show the land intended to be taken up: Healy v. Marsh, 5 S. & R. 187; Hunter v. Meason, 4 Yeates 108. It would be intolerable were the holder of an indescriptive warrant, a warrant that gives no notice of any -land taken, permitted to put it into the hands of a deputy surveyor, show him no land to bo surveyed, but rest supinely until some junior warrantee, having [205]*205found vacant land, had caused it to be surveyed under his warrant, and then step m and appropriate it to himself. This would be reversing the maxim that the law favours the vigilant, and it would render it unsafe for any one to purchase a warrant until he had satisfied himself that there were no unfilled indescriptive warrants in existence. The plaintiff, therefore, can bring to his aid no presumption that the surveys under.the Holker warrants were made on the land in dispute before it was surveyed for Nicholson. Nor does the matter depend upon presumption. The return of Henderson, the deputy surveyor, shows that they were not. In that it appears that on the 20th clay of June 1798, a survey was begun for Nicholson on his six warrants, and was carried on until four of them had been filled, covering tlie land now in contest. Nothing in the return indicates that up to that time the land had been appropriated for any of the Holker warrants, or that it had even been shown to the surveyor or by the warrantees. Something occurred to prevent the location of the other two Nicholson warrants, and it was not until the 7th April 1794, nearly ten months afterwards, that Holker interposed a claim for th§ lands. Then the lines run June 20th 1793 were revised (not another survey made), and new lines were run embracing other lands to fill in part the remaining two warrants. Surveys had previously been made for Holker or some of his batch of twenty-seven warrants, but none on the lands covered by Nicholson’s first four warrants. Then all the surveys were returned together. Thus it is apparent from the returns that the Nicholson surveys and appropriations were prior in time. And as all the surveys were founded on inclescriptive warrants, as between the parties, the surveys which were first in time were first in right.
They were returned, however, as in dispute. What then ? Marking them as in dispute had the effect of a caveat against their acceptance, and they remained unaccepted until 1843. ■ It was a caveat against Holker, as much as against Nicholson. The land office could not issue a patent to either until the dispute was decided. At that time there was no Act of Assembly which provided that a caveat should not continue to bar the issuing of a patent to the person against whom it was entered longer than two years, unless proceedings be instituted to bring it to a determination. The Act of January 22d 1802 had not been passed, and when it was enacted, it made provision only for caveats “thereafter to be entered.” And even if it had covered this case, it was as much Holker’s duty to bring the dispute to a determination as it was Nicholson’s. The caveat stood in the line of his title. If Nicholson could not avail himself of the surveys which Henderson the deputy surveyor made while the caveat was pending, for the same reason Holker could not.
[206]*206' It is no importance, then, to inquire whether a patent was properly issued to the defendant in 1843 on the faith of the judgment reported in 3 W. & S. 465. The question now is whether the plaintiff is entitled to recover. Let it be that this ejectment is to be regarded as a substantial appeal from the decision of the board of property — the defendant would be enti-. tied to the patent, for he holds the superior right.
Did the case demand it, doubts might be suggested whether the resurveys made in 1808, at the instance of Holker, did not amount to an abandonment, so far as he was concerned, of his caveat against a grant of a patent to Nicholson. As a foundation of title in himself, they were worthless, as we have seen. But did they not amount to an assertion that he did not rely upon anything which the surveyor had previously done ? The caveat was not a formal one. It was a mere consequence of his interposing a claim to the lands, thus causing the surveyor to note them as in dispute. Why would not a withdrawal of his claim cause the caveat to fall? If it would, a resurvey without an order for it, though ineffective to give title to him, might be efficient to destroy his objection to another title. t 'In Lessee of Steele and Wife v. Finley, 3 Yeates 169, it was laid down a clear rule of law that if a person obtains a second survey on a warrant which has once been filled, he thereby abandons his first survey, if the same was not returned into the surveyor-general’s office before an adverse survey is made, provided the same [i. e., the second) was done with his consent of the party, unless the contrary appears. It must be admitted that Steele v. Finley is in some respects unlike the present case; but in others there is a resemblance. We, however, express no opinion upon this question,' for the ease does not demand it.
Nor need we enter into a consideration of the effect of the verdict and judgment in the action of trespass vi et armis brought by the defendant against the plaintiff, in which a case having been stated, the title was dged to be in the defendant. Without that, for the reasons i.m ■, e stated, ¡.be plaintiff cannot recover.
The judgment is affirmed.
Thompson, J., was absent.
Woodward, J., dissented.