Opinion,
Mr. Justice Williams:
The important question in this case is raised by the first assignment of error. It will be approached at best advantage along the route by which it was reached on the trial in the court below.
The plaintiff showed title out of the commonwealth to the several tracts described in the writ, as surveyed on the 13th December, 1792, in the warrantee names of Andrew Bayard, William Bingham, George Harrison, and Tench Francis, containing four hundred and thirty-three acres and one hundred and fifty-three perches each. This title was traced from the warrantees to the plaintiff. The writ and return were then put in evidence, and the plaintiff rested. The documentary evidence by which the title was traced showed that the four surveys described were part of a large block containing about fifty surveys, known as the Levy block. It also showed that the title of the warrantees was vested in Jacob Gratz, Joseph Gratz and Benjamin Gratz, to whom the patents were issued by the commonwealth on the 10th of March, 1852.
The defendants met this prima facie case against them by showing a survey made on the 13th of July, 1792, under four warrants previously issued in the names of Peter Betz, Paul Betz, James Whittaker, and Samuel Whittaker, for four hundred and thirty-three acres and one hundred and fifty-three perches each, and by tracing the title from the commonwealth to themselves. They then showed, by the testimony of a number of surveyors, the existence on the ground of the original [454]*454lines locating these tracts in accordance with the return of the deputy surveyor, and that their operations were wholly within the lines of these tracts owned by them when they were served with the writ. The documentary evidence introduced by them showed that these warrants were part of a block known as the Wallis Block; that the title of the warrantees in the tracts comprising the Wallis block was acquired by Jacob, Joseph, and Benjamin Gratz, to whom patents therefor were issued in 1849 and 1850; and that the north line of their tracts was the north line of the Wallis block, which was called for by the official return of the plaintiff’s tracts as their south line, and the south line of the Levy block. This was a complete answer to the plaintiff’s case, and upon it the defendants were entitled to a verdict when their case closed.
The plaintiff, however, undertook to show that, notwithstanding the seniority of the surveys of the defendants and their actual location by original lines on the ground, which included the operations of the defendants, it was, nevertheless, entitled to recover. For this purpose, it offered to prove by W. P. Mitchell and others, surveyors, that the plaintiff’s warrants had been originally located so as to cover the four older survey's of the defendants. This offer was rejected, and the correctness of that ruling is the question now to be considered.
It will be seen that the offer is a concession of the facts alleged by the defendants, viz., that they have the older grant from the commonwealth, the older survey of the land in controversy, and that they have correctly located their tracts on the ground. Conceding all this, the offer proposes to show that the junior surveys were located on the top of the older. What would be the legal effect of such a showing? Without more, it would be to render the younger surveys of no effect whatever. The land, having been already appropriated under the first warrants and surveys, was no longer open to purchasers, and the younger surveys, whether made by mistake or design, could confer no right whatever on the holder. This was settled as early as Robeson v. Gibbons, 2 R. 45. The return of survey to the land-office, and its acceptance, gave title to the warrantee: Bunting v. Young, 5 W. & S. 196; Wolf v. Goddard, 9 W. 545; Wilhelm v. Shoop, 6 Pa. 21. The title being out of the commonwealth when the second appropriation [455]*455was attempted, the warrantee could acquire nothing by his survey, because the commonwealth had nothing to grant. Upon the general question raised by the offer, it is very clear, therefore, that, as the younger surveys could not affect the validity of the older ones under which the defendants showed title, the fact that they were made as alleged was no reply to the defendants’ case, but was an immaterial and irrelevant fact, which if admitted could have no effect except to mislead or confuse.
But the learned counsel for the plaintiff calls attention to the fact disclosed by the conveyances, that Jacob, Joseph, and Benjamin Gratz were the owners of both blocks of surveys when in 1852 they sold out of the Levy block seventeen tracts, including the four now held by the plaintiff, to J. K. Smith, E. K. Smith, and Charles M. Taylor; and he argues with great earnestness that, by this conveyance, the title to the older surveys in the Wallis block, as well as that to the younger ones actually named and described, passed to the grantees. If such is the legal effect of the conveyance, the evidence is not irrelevant, and its rejection was erroneous.
At this point it is important to recall the state of the evidence at the time when the offer was made, as it is shown by the findings of the court below. These findings have the conclusiveness of a verdict, and they establish the following facts:
1. That the southern tier of tracts in the Levy block was returned as lying north of and adjoining the northern tier of tracts in the Wallis block and called for them as adjoiners.
2. That the four particular tracts claimed by the plaintiff were returned as lying on the north of, and calling for the four tracts claimed by defendants.
3. That the same description of the plaintiff’s tracts, and the same call for the north line of the Betz and Whittaker surveys, as their southern boundary, runs through the entire chain of the plaintiff’s title, from the return of survey and patent to the last deed under which it holds.
4. That the north line of the Betz and Whittaker surveys was a well-known and well-marked line on the ground.
5. That this line was known to, and recognized by the grantees of Jacob, Joseph and Benjamin Gratz, as the south line of their purchase, and shown to Daniel Rhoads as such when [456]*456they sold to him in 1854, and by him when he sold to those under whom the plaintiff acquired title.
Now, to sustain the position of the plaintiff, and make the deeds for the Andrew Bayard and other tracts in the Levy block operative to pass title to the Betz and the Whittaker surveys in the Wallis block, one of three things must be shown: either (a) the description in the deed from John, Jacob and Benjamin Gratz to J. K. Smith et al. must be capable of such a construction as shall embrace the Betz and the Whittaker surveys; or, (5) the lines on the ground, and the calls, must embrace them; or, (c) they must have been pointed out to the purchasers as and for the tracts named in the deed, or at least some line which includes them must have been shown as a line of the tracts sold. But the negative of each of these appears clearly. The description in the deed from Gratz to Smith et al. did not embrace the Betz and Whittaker surveys, but excluded them, and called for them as adjoiners on the south. Both the calls for adjoiners and the lines on the ground excluded them. The vendees of Gratz knew the location of their south line, and pointed it out to Rhoads, their vendee, on the ground, as the north line of the Wallis block two miles north from the sugars.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion,
Mr. Justice Williams:
The important question in this case is raised by the first assignment of error. It will be approached at best advantage along the route by which it was reached on the trial in the court below.
The plaintiff showed title out of the commonwealth to the several tracts described in the writ, as surveyed on the 13th December, 1792, in the warrantee names of Andrew Bayard, William Bingham, George Harrison, and Tench Francis, containing four hundred and thirty-three acres and one hundred and fifty-three perches each. This title was traced from the warrantees to the plaintiff. The writ and return were then put in evidence, and the plaintiff rested. The documentary evidence by which the title was traced showed that the four surveys described were part of a large block containing about fifty surveys, known as the Levy block. It also showed that the title of the warrantees was vested in Jacob Gratz, Joseph Gratz and Benjamin Gratz, to whom the patents were issued by the commonwealth on the 10th of March, 1852.
The defendants met this prima facie case against them by showing a survey made on the 13th of July, 1792, under four warrants previously issued in the names of Peter Betz, Paul Betz, James Whittaker, and Samuel Whittaker, for four hundred and thirty-three acres and one hundred and fifty-three perches each, and by tracing the title from the commonwealth to themselves. They then showed, by the testimony of a number of surveyors, the existence on the ground of the original [454]*454lines locating these tracts in accordance with the return of the deputy surveyor, and that their operations were wholly within the lines of these tracts owned by them when they were served with the writ. The documentary evidence introduced by them showed that these warrants were part of a block known as the Wallis Block; that the title of the warrantees in the tracts comprising the Wallis block was acquired by Jacob, Joseph, and Benjamin Gratz, to whom patents therefor were issued in 1849 and 1850; and that the north line of their tracts was the north line of the Wallis block, which was called for by the official return of the plaintiff’s tracts as their south line, and the south line of the Levy block. This was a complete answer to the plaintiff’s case, and upon it the defendants were entitled to a verdict when their case closed.
The plaintiff, however, undertook to show that, notwithstanding the seniority of the surveys of the defendants and their actual location by original lines on the ground, which included the operations of the defendants, it was, nevertheless, entitled to recover. For this purpose, it offered to prove by W. P. Mitchell and others, surveyors, that the plaintiff’s warrants had been originally located so as to cover the four older survey's of the defendants. This offer was rejected, and the correctness of that ruling is the question now to be considered.
It will be seen that the offer is a concession of the facts alleged by the defendants, viz., that they have the older grant from the commonwealth, the older survey of the land in controversy, and that they have correctly located their tracts on the ground. Conceding all this, the offer proposes to show that the junior surveys were located on the top of the older. What would be the legal effect of such a showing? Without more, it would be to render the younger surveys of no effect whatever. The land, having been already appropriated under the first warrants and surveys, was no longer open to purchasers, and the younger surveys, whether made by mistake or design, could confer no right whatever on the holder. This was settled as early as Robeson v. Gibbons, 2 R. 45. The return of survey to the land-office, and its acceptance, gave title to the warrantee: Bunting v. Young, 5 W. & S. 196; Wolf v. Goddard, 9 W. 545; Wilhelm v. Shoop, 6 Pa. 21. The title being out of the commonwealth when the second appropriation [455]*455was attempted, the warrantee could acquire nothing by his survey, because the commonwealth had nothing to grant. Upon the general question raised by the offer, it is very clear, therefore, that, as the younger surveys could not affect the validity of the older ones under which the defendants showed title, the fact that they were made as alleged was no reply to the defendants’ case, but was an immaterial and irrelevant fact, which if admitted could have no effect except to mislead or confuse.
But the learned counsel for the plaintiff calls attention to the fact disclosed by the conveyances, that Jacob, Joseph, and Benjamin Gratz were the owners of both blocks of surveys when in 1852 they sold out of the Levy block seventeen tracts, including the four now held by the plaintiff, to J. K. Smith, E. K. Smith, and Charles M. Taylor; and he argues with great earnestness that, by this conveyance, the title to the older surveys in the Wallis block, as well as that to the younger ones actually named and described, passed to the grantees. If such is the legal effect of the conveyance, the evidence is not irrelevant, and its rejection was erroneous.
At this point it is important to recall the state of the evidence at the time when the offer was made, as it is shown by the findings of the court below. These findings have the conclusiveness of a verdict, and they establish the following facts:
1. That the southern tier of tracts in the Levy block was returned as lying north of and adjoining the northern tier of tracts in the Wallis block and called for them as adjoiners.
2. That the four particular tracts claimed by the plaintiff were returned as lying on the north of, and calling for the four tracts claimed by defendants.
3. That the same description of the plaintiff’s tracts, and the same call for the north line of the Betz and Whittaker surveys, as their southern boundary, runs through the entire chain of the plaintiff’s title, from the return of survey and patent to the last deed under which it holds.
4. That the north line of the Betz and Whittaker surveys was a well-known and well-marked line on the ground.
5. That this line was known to, and recognized by the grantees of Jacob, Joseph and Benjamin Gratz, as the south line of their purchase, and shown to Daniel Rhoads as such when [456]*456they sold to him in 1854, and by him when he sold to those under whom the plaintiff acquired title.
Now, to sustain the position of the plaintiff, and make the deeds for the Andrew Bayard and other tracts in the Levy block operative to pass title to the Betz and the Whittaker surveys in the Wallis block, one of three things must be shown: either (a) the description in the deed from John, Jacob and Benjamin Gratz to J. K. Smith et al. must be capable of such a construction as shall embrace the Betz and the Whittaker surveys; or, (5) the lines on the ground, and the calls, must embrace them; or, (c) they must have been pointed out to the purchasers as and for the tracts named in the deed, or at least some line which includes them must have been shown as a line of the tracts sold. But the negative of each of these appears clearly. The description in the deed from Gratz to Smith et al. did not embrace the Betz and Whittaker surveys, but excluded them, and called for them as adjoiners on the south. Both the calls for adjoiners and the lines on the ground excluded them. The vendees of Gratz knew the location of their south line, and pointed it out to Rhoads, their vendee, on the ground, as the north line of the Wallis block two miles north from the sugars. The title to the Betz and Whittaker surveys did not pass, therefore, from Gratz to Smith and others by the terms of the conveyance or by estoppel, and, on the evidence as it stood when the offer was made, the fact relied on by the plaintiff, that Gratz owned both blocks at the date of the deed to J. K. Smith et al., did not render the proposed evidence competent.
Armstrong v. Boyd, 3 P. & W. 458, is much relied on by the appellant. That was the case of an interference by a younger with an older survey. In 1775 Hains owned both of them. He sold the Jones, which was the younger, and conveyed it by deed describing it as a tract of land “lately laid unto Joseph Jones by certain metes and bounds in the said survey mentioned, containing one hundred and sixty-two acres, be the same more or less.” This was a conveyance by the lines of the survey, and those lines were actually on the ground, and included part of the Stein, which was the older survey. The point ruled was that the deed covered the land described, and carried the right of the vendor in the same to 1ns vendee. This is in [457]*457accordance with the elementary rnle that where one conveys land to another in fee-simple to which he has a defective title or no title at all, and afterwards acquires a good title, that title shall inure to the benefit of his vendee. The case now before us is distinguishable from Armstrong v. Boyd, supra, in this all-important particular: In that case, the land in controversy was clearly covered by the description in the deed, and the vendor’s title must pass to his vendee unless restrained by some rule of law; in this case, it is settled by the findings of fact in the court below, and it is clear on the evidence, that the description in the deed does not by its terms include the land in controversy, but locates the land conveyed by it on the north of the Betz and Whittaker surveys and of the well-marked north line of the Wallis block.
The land in controversy, not being covered by the description in the deed, could not pass under it unless some rule of law required it. If the purchaser had been misled by having these lands pointed out to him as the lands he was purchasing, or if the south line of the Betz and Whittaker surveys had been shown him as their north line, then, under the rnle laid down in Millingar v. Sorg, 55 Pa. 215, the vendor would not be allowed to deny that the fact was as he had represented it to be, and his title would pass to his vendee notwithstanding the description. But here again, the findings of fact in the court below, resting on uncontradieted testimony, settle the question the other way; for it appears that the vendees of Gratz knew the location of the north line of the Betz and Whittaker surveys, and pointed it out to their vendee as their south line. They understood that the land they owned and were about to sell to Rhoads and others lay wholly north of the north line of the Wallis block; so that neither were theyr misled as to the location of their lines, nor did they mislead their vendees. Both the description in the deed and the understanding of the parties related to a recognized and well-marked line on the ground, which does not include the land in controversy. It is apparent, therefore, that Armstrong v. Boyd does not rule the present case.
But it is said that the ground between the north and south lines of the Levy block is too narrow, if the south line be located along the north line of the Wallis, to accommodate all the [458]*458members of the block, and that one whole tier will thus be squeezed out. Let us assume that this is true. Let us go further, and assume, what is by no means clear, that the southern tier is the one that will lose its place. What, then, is tire remedy for the purchaser? He has bought and paid for several tracts, one or more of which has no actual existence on the ground. Shall he proceed against his vendor on his covenants, or shall he rescind the contract in toto ? He may make his election, and his remedy is enforceable in either case by action. But the remedy on which the appellant insists is the right to go over the marked and recognized lines of his purchase, and appropriate the adjoining lands of his vendor to an amount equal to that which he finds to be the shortage within his lines, without regard to their relative value per acre. Such a mode of redress cannot be sanctioned by a court of law. It is not supported by Armstrong v. Boyd, nor by Seckel v. Engle, 2 R. 68, nor by the doctrine of estoppel which was applied in Millingar v. Sorg, 55 Pa. 215. As we have already seen, Armstrong v. Boyd was the case of a sale of land which was clearly described in the deed by lines which included the interference. In Millingar v. Sorg the purchaser was taken on the ground and put into possession of a lot which was on a different warrant from that named in the deed. In both cases, the court had regard to the land inclosed by the lines, whether these were ascertained from the deed or were actually shown on the ground; and, when the description differed from the lines pointed out, the latter were adhered to, and the description in the deed so far disregarded.
After careful examination of the eases cited, and of the argument of the experienced and able counsel of the appellant, we think the offer to prove that the plaintiff’s younger surveys were laid upon the defendants’ older ones was properly rejected. The land, which it was thus proposed to appropriate to the Bayard and the other tracts of the plaintiff, was not covered by the description in the deeds under which the plaintiff acquired title, but was excluded therefrom by the lines of the survey referred to, and made part of the description. It was not pointed out to the purchaser as the land sold, but, on the other hand, the marked line on the north of the Betz and Whittaker surveys was recognized'as the south line of their [459]*459lands by the vendees of Grate, and they pointed it out as such to their vendees when they sold.
The judgment is affirmed.