Lessee of Howard v. Pollock

1 Yeates 509

Opinion

By the court.

Cases of improvements depend on a great variety of circumstances, all of which must be taken to in consideration by a jury. The practice of the late proprietary land office, and divers laws since the revolution, have annexed to them certain claims,* so that they may be now classed among the imperfect rights to lands. It is a matter of fair argument, when the tes * timony is given, what r* o will be its operation? We will therefore hear the evi- L dence. It is a more favourable case than improvements generally are, there being an agreed line between the parties, if the plaintiff should bring home the knowledge of that fact to Pollock before he purchased.

Referred, to in 3 Binn., 189; x Watts, 51. Cited in 7 Pa., 481, to show that claims under improvements may be classed among the imperfect rights to land. Cited for the same purpose in 9 Pa., 196 ; II Pa., 113. Cited in 46 Pa., 70, in support of the definition of “improvements” there given.

In the course of the trial a bond was shewn in evidence dated 8th January 1778, in the penalty of 500I., executed by Howard to Pollock, conditioned to perform the award of David Scott, John Glasgow, Leonard Robinson and Ezekiel Moore, and such others as these four shall choose, respecting the land in dispute between them.

An award subscribed by Scott, Robinson, and one Samuel Swindles, (mutually chosen by the other arbitrators,) was then offered in evidence by the defendants and excepted to, because not within the submission of the parties; and 1 Bac. Ab. 137, 138, was cited.

The court expressed regret that they were únder the necessity of overruling the evidence. It very probably was the honest intention of the parties, that a majority of the arbitrators should determine the dispute; but it is not so expressed in the bond, nor can the court intend it, or suffer the defect to be supplied by oral testimony. 1 Espin. 247.

The jury found a verdict for the plaintiff, and established the agreed marked boundary.

Footnotes

*

Besides the laws cited, see the act for raising 5,700,000 dollars, passed 10th October 1779, which declares, $ IX, that lands held by improvement are thereby made taxable.

Act for emitting 500,0001. in bills of credit, passed 7th April 1781, which enacts, $ 7, that together with the guarrantee of the state, so much as shall be sufficient of the arrears due for lands heretofore granted or claimed by virtue of warrants, locations, surveys, or any other title that might be deemed good and valid according to the law, custom, or usage in force under the late government, shall be pledged as a fund out of which the said bills of credit shall be redeemed, &c.

Act passed 5th April 1782, instituting a boai'd of property, to hear and determine in all cases of controversy, touching escheats, &c. rights of preemption promises, imperfect titles or otherwise which may arise in the land office. (2 Ball. St. Laws, 21.)

Act passed 12th March 1783, \ 6. (2 Dali. St. Laws, 90.)

Act passed 22d April 1794, \ 2, directing that no warrants shall issue after 15th June 1794, for the lands therein mentioned, except in favour of persons claiming under some settlement and improvement.

Act passed 22d September 1794, § 1, declaring that after passing of the law, no applications shall be received in the land office for any lands, except such whereon a settlement has been or thereafter shall be made, grain raised, and a person or persons residing thereon.