Lessee of Patterson v. Cochran

1 Binn. 231, 1807 Pa. LEXIS 56

Opinions

Tilghman C. J.

'after stating the facts, proceeded as follows. The defendánt relies on the defect in the plaintiff’s title, a settlement not having been made in pursuance of the act of 3d April 1792. It was decided by this court on the motion for a mandamus to Tench Coxe,

Footnotes

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(c) and on the trial of the issue at Sunbury at the special court directed to be held by an act of Assembly, (d) that if a warrantee was prevented by war from making a settlement in two years from the date of the warrant, his title was not extinguished, but he should be allowed a reasonable time for making such settlement after the prevention by war ceased. And it was determined by this court at this place last September term, in the case of Hazard’s lessee v. Loxvry, that such reasonable time was not less than two years from the pacification by General Wayne’s treaty with the Indians. Now the plaintiff was prevented from making a settlement within two years from the pacification by Wayne’s treaty, by the wrongful act of the defendant, who refused to give up the land which he had improperly entered on. I say he was hindered, because although the defendant did not occupy the whole land, yet having said that he held and meant to hold against the Population company, the probability was that if the plaintiff had attempted to take possession, it might have been attended with personal injury. The law compels no man to run risks of this kind. Having demanded possession, which the defendant refused to deliver, the plaintiff’s most prudent line of conduct was that which he has pursued, to appeal to the laws of his country for redress. The defendant having thus hindered the plaintiff from making a settlement, shall not be permitted to defend himself against the plaintiff because a settlement has not been made. There are many cases in which it has been held contrary to equity and good conscience, and destructive of morality, to permit defendants in ejectment to take advantage of a defect in the plaintiff’s title. A man who has received land under alease, is not permitted to controvert the title of his lessor. A mortgagee omits to record his mortgage in six months; although the mortgage is declared by act of Assembly to be of no validity, yet it has been decided that a person who purchases from the mortgagor with notice of the mortgage, shall hold the land subject to the mortgage; The present case is much stronger than either of them. It would be an outrage on society, a violation of the first principles of sound policy and good government, to permit a wrong-doer thus to derive benefit from his wrongful conduct. Indeed the very question in dispute is not new in this court. In the case of Neighman v. Staines, tried at Nisi Prius before Judges Teates and Smith, aird in the case of the mandamus., and in that of Hazard’s lessee v. Loxvny which I have mentioned before, the court expressed their opinion that a warrantee who had not made a settlement, recover in ejectment againsf a person who had entered on the land and settled during ‡ ' the time allowed bv law for the warrantee to make his settle- . ment. I am therefore of opinion that Judge Teates was right m telling the jury that upon the evidence given in this case, the plaintiff was entitled to recover, and that he was right in order-inS a new triaL

Smith J. concurred.

4 Dall. 170.

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4 Dall. 237.