WASHINGTON, Circuit Justice
(charging jury). In this cause there are two questions. First; has the lessor of the plaintiff shown a title to the lands in question? If he has, secondly, has the defendant shown a better right?
i. The lessors of the plaintiff, or those under whom they claim, were once the sole owners and proprietaries, not only of the government, but of the soil of Pennsylvania; not in a political, but in their private capacities; not as trustee^ for the people, as to the whole, or any part of the soil, but in absolute fee simple for their individual uses. This right was no otherwise weakened by concessions or agreements, made by the first William Penn, or his descendants; than to render them trastees for such individuals, as should acquire equitable rights to particular portions of land, under general or special promises, rales, and regulations, which the proprietaries may,' from time to tíme, have entered into, and established. The right of the proprietaries to appropriate to their own use, particular portions of the waste lands within the province; was not derived from, or founded upon any such rules or concessions; but flowed from their original chartered rights, whieh vested in them a perfect title to' the whole of the soil. But, since it was their interest to encourage the population and settlement of the province, they erected an office, and laid down certain rales for its government, and the government of those who might desire to acquire rights to the unappropriated lands within the province; reserving to themselves a right to appropriate one-tenth of the whole to themselves, for their private individual use.
From hence the following principles resulted. That all persons complying with the terms thus held out, acquired a right to the portion of land thus appropriated, not only against other individuals, who might thereafter attempt to appropriate the same tract, but even against the proprietaries themselves; unless they had previously, and by some act of notoriety, evidenced their intention to withdraw such land from the general mass, and to appropriate it to their-private use. As a necessary consequence of this principle, whenever such was their intention, it •was made known by a warrant of appropriation, and a survey to mark out, and locate the ground thus withdrawn. These steps gave notice to all the world, that no right to the land thus laid off for the proprietaries, could be acquired by other individuals, without a special agreement with the proprietaries or their agents; and tuns might or might not be upon the common terms, as the proprietaries might choose. But, if before such special appropriation by the proprietaries, an individual had, in compliance with the office rules, obtained a warrant, and made an appropriation of a tract of land, lying within the boundaries of the tract thus laid off for the proprietaries; such prior appropriation of the particular tract, could no otherwise affect the right of the proprietaries, than in relation to such particular tract. Their right to the lesidue would remain as perfect, as if such interference had not taken place. On this ground, the right of the first proprietary stood at the time of his death, and so continued to exist in his legal representatives, until the year 1779; when a law of the state was made, divesting the proprietaries of all their estate, right, and title, in or to the soil of Pennsylvania, and vesting the same in the commonwealth. But this law excepted certain portions of land, the right to which is confirmed and established in the proprietaries for ever. The lands thus confirmed, are all their private lands, whereof they were possessed, or to which they were entitled in 1779, and such as were known by the name of their tenths and manors, which had been surveyed and returned into the land office before the 4th of July, 1770.
The lessors of the plaintiff, who most undoubtedly are entitled to all the rights of the proprietaries, are now compelled to date their title from this law; and therefore it is necessary for them to show, that the land in quos[165]*165tion, is part of a tract called' and known by the name of a proprietary tenth or manor, which was duly surveyed, and returned into the land office, on or before the 4th of July. 1776. They are to prove: 1. That the tract of which the land in question is a part, was, in 1779, called and known by the name of a proprietary tenth, or manor.
The words of the law are peculiar. As to their private rights, they must be such, whereof they were, in 1779, possessed, or to which they were entitled. But as to the tenths, or manors, it is sufficient if they were known by that name, and had been surveyed and returned before the 4th of July, 1776. These expressions respecting the manors, were rendered necessary, to avoid giving to the word manor a technical meaning. For there were no manors in Pennsylvania, in a legal acceptation of that word; but there were many tracts of land, appropriated to the separate use of the proprietaries, to which this name had been given.
The first inquiry, therefore, under this head, is, was the land in question, part of a tract called and known as a manor, on the 4th of July. 1776, or in 1779. To prove this fact, the licenses granted by Thomas Penn, to about fifty settlers in different parts of the first, as well as the second, survey, in all of which this is called the manor of Springetts-bury; are strongly relied upon to show,' that even at that early period, it had acquired this name. The tenor of the warrants, after-wards granted for lands within this manor, varying from the terms of the common warrants; and this variance proved by many witnesses, as marking this for manor land, is also relied upon. In addition to these, the following circumstances are strongly insisted upon by the plaintiff’s counsel.
The testimony of witnesses, to show that the west line of this manor, was always reputed to- go considerably beyond York to Oyster’s. The practice of the surveyors, and other public officers, whenever warrants were issued to survey lands in this manor. But even if this tract of land had never acquired the name of a manor, prior to 1768, the survey made of it in that year, as of a manor, is conclusive. From that period, it acquired by matter of record the name of a manor; and so it appears, by the evidence in the cause, it was called and known, if that evidence be believed. "
Secondly. Was it duly surveyed, and returned into the laDd office, before 4th July, 1776? That it was surveyed in 176S, is admitted; but it is contended, that it was not duly surveyed. The argument of the defendant’s counsel, on this point, is, that the survey was not duly made; because the land was surveyed in 1722. That this survey was void, because made without authority; the governor having no authority to issue the warrant. That it was not executed by the surveyor general, and was returned into the council of state’s office, instead of the land office. Presuming these points to be established, it is then deduced from them, that the illegality of the survey of 1722, vitiates that of 1768; the former being considered as the foundation, and the latter as the superstructure. It is argued, that the survey of 1768, is executed under a warrant of re-survey in 1762; and consequently, that the repetition of an act, which has no validity, cannot make it valid. It is further contended, that the recital in the last warrant, of the loss of the first survey, is a mere pretence, since it was afterwards found; a fraud to enable the proprietaries to change the location, for the purpose of getting good, instead of bad lands.
Now, I confess, that I do not understand this kind of logic.
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WASHINGTON, Circuit Justice
(charging jury). In this cause there are two questions. First; has the lessor of the plaintiff shown a title to the lands in question? If he has, secondly, has the defendant shown a better right?
i. The lessors of the plaintiff, or those under whom they claim, were once the sole owners and proprietaries, not only of the government, but of the soil of Pennsylvania; not in a political, but in their private capacities; not as trustee^ for the people, as to the whole, or any part of the soil, but in absolute fee simple for their individual uses. This right was no otherwise weakened by concessions or agreements, made by the first William Penn, or his descendants; than to render them trastees for such individuals, as should acquire equitable rights to particular portions of land, under general or special promises, rales, and regulations, which the proprietaries may,' from time to tíme, have entered into, and established. The right of the proprietaries to appropriate to their own use, particular portions of the waste lands within the province; was not derived from, or founded upon any such rules or concessions; but flowed from their original chartered rights, whieh vested in them a perfect title to' the whole of the soil. But, since it was their interest to encourage the population and settlement of the province, they erected an office, and laid down certain rales for its government, and the government of those who might desire to acquire rights to the unappropriated lands within the province; reserving to themselves a right to appropriate one-tenth of the whole to themselves, for their private individual use.
From hence the following principles resulted. That all persons complying with the terms thus held out, acquired a right to the portion of land thus appropriated, not only against other individuals, who might thereafter attempt to appropriate the same tract, but even against the proprietaries themselves; unless they had previously, and by some act of notoriety, evidenced their intention to withdraw such land from the general mass, and to appropriate it to their-private use. As a necessary consequence of this principle, whenever such was their intention, it •was made known by a warrant of appropriation, and a survey to mark out, and locate the ground thus withdrawn. These steps gave notice to all the world, that no right to the land thus laid off for the proprietaries, could be acquired by other individuals, without a special agreement with the proprietaries or their agents; and tuns might or might not be upon the common terms, as the proprietaries might choose. But, if before such special appropriation by the proprietaries, an individual had, in compliance with the office rules, obtained a warrant, and made an appropriation of a tract of land, lying within the boundaries of the tract thus laid off for the proprietaries; such prior appropriation of the particular tract, could no otherwise affect the right of the proprietaries, than in relation to such particular tract. Their right to the lesidue would remain as perfect, as if such interference had not taken place. On this ground, the right of the first proprietary stood at the time of his death, and so continued to exist in his legal representatives, until the year 1779; when a law of the state was made, divesting the proprietaries of all their estate, right, and title, in or to the soil of Pennsylvania, and vesting the same in the commonwealth. But this law excepted certain portions of land, the right to which is confirmed and established in the proprietaries for ever. The lands thus confirmed, are all their private lands, whereof they were possessed, or to which they were entitled in 1779, and such as were known by the name of their tenths and manors, which had been surveyed and returned into the land office before the 4th of July, 1770.
The lessors of the plaintiff, who most undoubtedly are entitled to all the rights of the proprietaries, are now compelled to date their title from this law; and therefore it is necessary for them to show, that the land in quos[165]*165tion, is part of a tract called' and known by the name of a proprietary tenth or manor, which was duly surveyed, and returned into the land office, on or before the 4th of July. 1776. They are to prove: 1. That the tract of which the land in question is a part, was, in 1779, called and known by the name of a proprietary tenth, or manor.
The words of the law are peculiar. As to their private rights, they must be such, whereof they were, in 1779, possessed, or to which they were entitled. But as to the tenths, or manors, it is sufficient if they were known by that name, and had been surveyed and returned before the 4th of July, 1776. These expressions respecting the manors, were rendered necessary, to avoid giving to the word manor a technical meaning. For there were no manors in Pennsylvania, in a legal acceptation of that word; but there were many tracts of land, appropriated to the separate use of the proprietaries, to which this name had been given.
The first inquiry, therefore, under this head, is, was the land in question, part of a tract called and known as a manor, on the 4th of July. 1776, or in 1779. To prove this fact, the licenses granted by Thomas Penn, to about fifty settlers in different parts of the first, as well as the second, survey, in all of which this is called the manor of Springetts-bury; are strongly relied upon to show,' that even at that early period, it had acquired this name. The tenor of the warrants, after-wards granted for lands within this manor, varying from the terms of the common warrants; and this variance proved by many witnesses, as marking this for manor land, is also relied upon. In addition to these, the following circumstances are strongly insisted upon by the plaintiff’s counsel.
The testimony of witnesses, to show that the west line of this manor, was always reputed to- go considerably beyond York to Oyster’s. The practice of the surveyors, and other public officers, whenever warrants were issued to survey lands in this manor. But even if this tract of land had never acquired the name of a manor, prior to 1768, the survey made of it in that year, as of a manor, is conclusive. From that period, it acquired by matter of record the name of a manor; and so it appears, by the evidence in the cause, it was called and known, if that evidence be believed. "
Secondly. Was it duly surveyed, and returned into the laDd office, before 4th July, 1776? That it was surveyed in 176S, is admitted; but it is contended, that it was not duly surveyed. The argument of the defendant’s counsel, on this point, is, that the survey was not duly made; because the land was surveyed in 1722. That this survey was void, because made without authority; the governor having no authority to issue the warrant. That it was not executed by the surveyor general, and was returned into the council of state’s office, instead of the land office. Presuming these points to be established, it is then deduced from them, that the illegality of the survey of 1722, vitiates that of 1768; the former being considered as the foundation, and the latter as the superstructure. It is argued, that the survey of 1768, is executed under a warrant of re-survey in 1762; and consequently, that the repetition of an act, which has no validity, cannot make it valid. It is further contended, that the recital in the last warrant, of the loss of the first survey, is a mere pretence, since it was afterwards found; a fraud to enable the proprietaries to change the location, for the purpose of getting good, instead of bad lands.
Now, I confess, that I do not understand this kind of logic. [It is far too refined for the sober judgment of me, who have to decide.] 5 If the invalidity of the first survey, can have any effect upon the second, I should suppose it would establish it beyond all doubt; because if the first survey were good, and if the warrant of 1762, were merely an order to retrace the lines of that survey, the counsel might, with some plausibility at least, have argued, that the surveyor was bound to pursue the lines of that survey; and this might give colour to the observations, founded on the mistake of the public officers, as to the proper lines of the survey. But, if the first survey be unauthorized, and utterly void, then the second could not, in the nature of things, be a re-survey; whatever might be the language of the warrant on which it was founded. There is no magic in the word resurvey. If in fact there never was a former survey, there could not be a re-survey; and consequently, the survey-of 1768 was an original survey, founded on a special warrant, marking out the lines and boundaries, by which the surveyor was bound to go; and such is the fact in this case. As to the imputation of fraud, I see nothing to support it. The proprietaries had no motive to practise rt, since the lands included in the second survey, which were not within the first being at that time unappropriated, (some few parcels excepted,) they had a perfect right to appropriate them without the aid of a fraud. Although the survey of 1722 is referred to, in the warrant of 1762, yet, the lines of the-manor to be surveyed, under the second warrant, are specially described; and consequently, it is not a re-survey in fact, as to any lines not marked in the first survey. To the lines thus described, the surveyor was con-, fined; and had he departed from them, the surveys, unless ratified by acceptance, would have been void, as against the proprietary who might have directed it to be made, conformable with the warrant. It is not denied, that the survey of 1768, is in conformity with the warrant. It was accepted as a valid survey, and I cannot see upon what ground the defendant, or any other person, can now say [166]*166that it was void. Had not the proprietary a right to appropriate, to his private use, the land included within the survey of 176S, in pax-t of the tenths which had always been reserved? And if the warrant and survey made this appropriation, what does it signify whether there was a prior survey or not. or whether it was good or bad? I admit, that if, previously to the warrant of 1702, third persons had acquired a right to parcels of this land, or had done so afterwards, and before the survey of 1708, but without notice of the warrant; the proprietary would have been bound to make them titles, upon their complying with the common terms; but this could not impeach the title of the proprietaries, to the residue of the land, comprehended within the lines of the survey.
[For a similar action see Penn v. Groff, Case No. 10,932.]
Upon the whole, then, the court is of opinion, that this manor was duly surveyed; and it is admitted, that the survey was returned into the land office, before 4th July, 177(5.
The next question is, has the defendant a better legal title, than that of the lessors of the plaintiff? He claims by a warrant dated in 1747, the title to which is regularly deduced to him, for ninety-five acres, part of the land in dispute. He has no patent; but yet, by the common law of this state, a warrant and survey, if the consideration be paid, gives a legal title against the proprietaries; as much so as if a patent had been granted. If the consideration be not paid; then the legal title is not out of the proprietaries; but still, the warrant holder has an equitable title, which he may render a legal one, by paying what is due to the proprietaries. No proof is given of payment by the defendant, or any one under whom he claims, but the jury are called upon to presume it from length of time.
In a case of this sort, there is no room for presumption. The yery circumstance of the defendant appearing in court, without a patent, or without showing or pretending that a patent ever was granted, destroys the presumption, which length of time might otherwise have created. For, if he had paid the consideration money, he would, that moment, have been entitled to a patent The one was a necessary consequence of the other. A man might, for a long time, forbear to call for this consummation of his title, from his inability to pay the consideration money; but that he should pay it and not go on to perfect his title, is altogether improbable, and certainly not to be presumed. But, if the jury could presume any thing from length of time, yet that presumption may be repelled, and in this case there is strong evidence to repel it The original grantee, in his deed to Shultz, in 1771, states, that it had not been paid; and such is the statement in the deed from Shultz’s executor, in 1794, to Stamp, under whom the defendant claims. The defendant therefore has not a legal title, so as to enable iiim to succeed in this suit. But he has an equitable title, and may compel’the lessors of the plaintiff to make him a conveyance, upon his paying, or tendering, what is due to the plaintiff’s lessors, with interest, costs, &c. And if the plaintiff’s lessors should, on such payment or tender, refuse to make a conveyance. this court, sitting in equity, would compel them, at the expense of costs in that suit.
I understand, that in the cotuts of this state, the jury, in a cause of this kind, may make a special or conditional finding, in consequence of there being no courts of equity in Pennsylvania. But the reason not applying to this court, the verdict must be general.
Verdict for plaintiff.