Lessee of M'Knight v. Yingland

Supreme Court of Pennsylvania

Lessee of M'Knight v. Yingland

2 Binn. 61, 1809 Pa. LEXIS 25

DecidedJuly 13, 1809

StatusPublished

This text of 2 Binn. 61 (Lessee of M'Knight v. Yingland) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lessee of M'Knight v. Yingland, 2 Binn. 61, 1809 Pa. LEXIS 25 (Pa. 1809).

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Opinion

Tilghman C. J.

It will not admit of a moment’s doubt, that the plaintiff who claims under a deed from the two Reaves to Robert Knight, now deceased, must be barred as to one half of his claim; because when Richard Reave junr. relinquished the survey returned on the shifted warrant of Baynton and Wharton, he was tenant in common with his father of an undivided moiety. But it is contended that he could not affect the title of his father, who was entitled to the other moiety. This in truth is the only point worthy of consideration, and it appears to us that there is very little difficulty in it.

The title of a person who takes up land, is not complete before he obtains a patent, although he may maintain an ejectment upon a warrant and survey. It is not uncommon to make alterations by permission of the land office, after return of the survey; and in no case can it be more proper than [65]*65¿ft the present, where the survey has been executed on land not called for by the warrant. Under such circumstances, where one of the owners of the survey was residing in E'n-gland, and the other in Pennsylvania, where all the correspondence with George Woods the agent, touching this land, was carried on by the partner residing in Pennsylvania, and where the other partner never by word or deed expressed 'any dissent from the relinquishment of the original survey, before the year 1794, it is not unreasonable to presume that such relinquishment was approved of by the partner residing in England. The officers of the proprietaries’ land office consented that the survey first returned should be given up, and the very next da}' granted part of the land so given up, to another' person. They consented also that Messrs.,< Neave should lay their warrant on other land; it was so understood by Neave junr., who accordingly took measures for procuring another survey.

Upon all the evidence given in this case, Judge Smith declared his opinion to the jury that the first survey was to be considered as abandoned by Messrs. Neave, and consequently the plaintiff was not entitled to recover any part of it. We fully concur in this opinion. The judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.

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Tilghman C. J.

It will not admit of a moment’s doubt, that the plaintiff who claims under a deed from the two Reaves to Robert Knight, now deceased, must be barred as to one half of his claim; because when Richard Reave junr. relinquished the survey returned on the shifted warrant of Baynton and Wharton, he was tenant in common with his father of an undivided moiety. But it is contended that he could not affect the title of his father, who was entitled to the other moiety. This in truth is the only point worthy of consideration, and it appears to us that there is very little difficulty in it.

The title of a person who takes up land, is not complete before he obtains a patent, although he may maintain an ejectment upon a warrant and survey. It is not uncommon to make alterations by permission of the land office, after return of the survey; and in no case can it be more proper than [65]*65¿ft the present, where the survey has been executed on land not called for by the warrant. Under such circumstances, where one of the owners of the survey was residing in E'n-gland, and the other in Pennsylvania, where all the correspondence with George Woods the agent, touching this land, was carried on by the partner residing in Pennsylvania, and where the other partner never by word or deed expressed 'any dissent from the relinquishment of the original survey, before the year 1794, it is not unreasonable to presume that such relinquishment was approved of by the partner residing in England. The officers of the proprietaries’ land office consented that the survey first returned should be given up, and the very next da}' granted part of the land so given up, to another' person. They consented also that Messrs.,< Neave should lay their warrant on other land; it was so understood by Neave junr., who accordingly took measures for procuring another survey.

Upon all the evidence given in this case, Judge Smith declared his opinion to the jury that the first survey was to be considered as abandoned by Messrs. Neave, and consequently the plaintiff was not entitled to recover any part of it. We fully concur in this opinion. The judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.

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2 Binn. 61, 1809 Pa. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lessee-of-mknight-v-yingland-pa-1809.