Lessee of Welker v. Coulter

1 Add. 390

• Court: Pennsylvania Court of Common Pleas, Westmoreland County
• Decided: March 15, 1799
• Status: Published

Opinion

President.

It is not necessary to embarrass the deliberations on the facts with any consideration of the limitation of this action, as, it being clear that the plaintiff never was in possession, this is a mere question of law.

If E. Coulter obtained the conveyance from Welker by a fair contract, or, though the contract was not fair, if, at the time of the purchase, he had a better title than Welker, there must be a verdict for the defendant.

It is generally understood, that many possessed of old locations have abandoned them, and taken out patents on new warrants. How far this is a fair practice, as respecting the state, is not material, in this action, to enquire. You have evidence, that before Coulter knew of Welker’s claim, he said, that he had a location in the name of one M'Clure. This may have been true, and on this location he might have intended to return his survey of this land. But after the purchase of Welker's warrant, for which 5l. sterling must have been paid to the Land-Office in 1773, he might have thought it more advantageous to abandon this location, or apply it else-where, and return his survey on Welker's warrant. If such be the truth, the transaction is fair, and Coulter’s title good.

But if E. Coulter represented to Welker, that he had an old title, when, in fact, he had none; and if this was the only or the principal motive which induced Welker to sell his title; if, without this motive, Welker would not have transferred his claim; this is such a fraud as renders the purchase void, and all the title, which Welker then had, yet remains in him.

But as fraud in Coulter cannot make Welker’s title better than it was, and every plaintiff in ejectment must recover on the strength of his own title, even though this purchase were fraudulent, if Coulter had then a better title by a prior settlement (or location and survey) his fraudulent purchase of the warrant will not destroy his prior title by settlement.

This warrant is not so specially attached to this land, by its description, as clearly to point out this as the land claimed by it, and exclude any other title from it. Before a survey made on this warrant, it does not exclusively affect this land. Coulter returned his survey on Welker's warrant, in consequence of his purchase of this warrant: and, if the purchase be void, Coulter’s survey must be detached from Welker’s warrant. Welker never made a survey on this warrant; and he made no attempt to survey, till in 1787; and before that, and certainly in 1775, an actual settlement was made by E. Coulter.

The jury returned to give a verdict, but the plaintiff being called, appeared not: and there was judgment of nonsuit.