The following charge was delivered to the jury :
Washington, Justice.
— In this cause, there are two questions. 1st. Have the lessors of the plaintiffs a title to the land in question ? If they have, 2d. Has the defendant a better right ?
1st. The lessors of the plaintiffs, 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 and individual capacities ; not as trustees for the people, as to the whole, or any part of the soil, but in absolute fee-simple, for their individual uses, and this right was no otherwise defined, by concessions or agreements, by William Penn, or his descendants, than to render them trustees for such individuals, as should acquire equitable rights, to particular portions of land, under general or special promises, rules and regulations, which they may, from time to time, have entered into and established.
*Their right to appropriate lands to their own use, was not derived from, nor founded upon, any such rules or concessions, but flowed from their original chartered rights, which bestowed upon them the whole of the soil. But as it was their interest to encourage the population and settlement of the province, they erected an office, and laid down certain rules for its government, and the government of those who might wish to acquire rights to the unappropriated lands in the province, reserving to themselves a right to appropriate one-tenth of the whole to themselves, for their private and individual uses. From hence, the following principles resulted: that all persons, complying with the terms thus held out, acquired a right to the proportion of land, thus appropriated, not only against other individuals, who might thereafter attempt to appropriate the same land, but even against the proprietor himself, unless he had previously, and by some act of notoriety, evidenced his intention to withdraw such land from the general mass of property, and to appropriate it to his individual use. As a necessary consequence of this principle, whenever such was his intention, or was made known by a warrant of appropriation and a survey, to make out, and locate the ground thus withdrawn, this ivas notice to all the world, that no right to the land, thus laid off for the proprietaries, could be acquired by individuals, without a special agreement with the proprietaries, which might or might not be upon the common terms, as the proprietors might choose. But if, before such special appropriation by the proprietaries, an individual had, in compliance with the office rules, appropriated a tract, within the bounds of the tract thus laid off for the proprietaries, such prior appropriation, would no otherwise affect the rights of the proprietaries, than in relation to the particular tracts thus claimed. Their right to the residue, remained unaffected. On this ground, the right of the first proprietor stood at the time of his death, and so continued to exist, in his legal representatives, until the year A. D. 1779, when a law of this state was passed, 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 in this law, certain portions of land within the commonwealth are excepted, and the right of the proprietaries, to such portions, is confirmed and established for ever. The lessors of the plaintiffs, who, most undoubtedly, are entitled to all [351]*351the rights of the proprietaries, are compelled to date their title from this law ; and therefore, it is necessary for them to show, that the land in p question is part of a tract of land, 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, 1st, that this 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 |-*408 1779 possessed, or to which they were entitled. But as to the tenths L or manors, it was 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 the word manor a technical meaning; for there were no manors, in a legal acceptation of the word, in this state, 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 of land called and known as a manor, in the year 1776 or 1779? To prove this fact, the licenses granted by Thomas Penn, in 1736, to about 50 settlers, in different parts of the first, as well as second survey, in which this is called the manor of Springetsbury, is strongly relied upon, to show that, even at that early period, it had acquired this name : the tenor of the warrants afterwards granted for lands within this manor, varying from the terms of the common warrants, and this variance proved by witnesses, as marking this for manor land : 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 surveyors and public officers, whenever warrants were issued to survey lands in the 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 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.
2d. Was it duly surveyed and returned into the land-office before the 4th of July 1776? That it was surveyed in 1768, is admitted; but it is contended, that it was not duly surveyed. It is so contended, because it was surveyed in 1722. That survey, it is said, was void, because made without authority, was not executed by the surveyor- general, and was returned into the council of state’s office. The survey then being void, it is said, vitates the survey of 1768 : the former being considered as the foundation, and the latter as'the superstructure. The survey of 1768 is executed, it is argued, under a warrant of re-survey in 1762, and consequently, the repetition of an act which has no validity, cannot give it validity. It is further argued, that the recital of the loss of the survey of 1722, is a mere pretence, a fraud, to enable the proprietaries to exchange bad land for good. Now, I do not understand this kind of logic: it is far too refined for the sober judgment of men who have to decide. 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 was good, and if the warrant of 1762 was merely an order to retrace the lines of that survey, the counsel might, with some plausibility at least, argue that the surveyor was r*40g bound to pursue the lines *of the former survey ; and this would give *- [352]*352color to Ms observations, founded on the mistake of the public officers, as to the proper lines of the survey. But if the first survey was unauthorized and utterly void, then the second could not, in the nature of things, be a re-survey. Whatever words were used in the warrant, there is no magic in that word.
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The following charge was delivered to the jury :
Washington, Justice.
— In this cause, there are two questions. 1st. Have the lessors of the plaintiffs a title to the land in question ? If they have, 2d. Has the defendant a better right ?
1st. The lessors of the plaintiffs, 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 and individual capacities ; not as trustees for the people, as to the whole, or any part of the soil, but in absolute fee-simple, for their individual uses, and this right was no otherwise defined, by concessions or agreements, by William Penn, or his descendants, than to render them trustees for such individuals, as should acquire equitable rights, to particular portions of land, under general or special promises, rules and regulations, which they may, from time to time, have entered into and established.
*Their right to appropriate lands to their own use, was not derived from, nor founded upon, any such rules or concessions, but flowed from their original chartered rights, which bestowed upon them the whole of the soil. But as it was their interest to encourage the population and settlement of the province, they erected an office, and laid down certain rules for its government, and the government of those who might wish to acquire rights to the unappropriated lands in the province, reserving to themselves a right to appropriate one-tenth of the whole to themselves, for their private and individual uses. From hence, the following principles resulted: that all persons, complying with the terms thus held out, acquired a right to the proportion of land, thus appropriated, not only against other individuals, who might thereafter attempt to appropriate the same land, but even against the proprietor himself, unless he had previously, and by some act of notoriety, evidenced his intention to withdraw such land from the general mass of property, and to appropriate it to his individual use. As a necessary consequence of this principle, whenever such was his intention, or was made known by a warrant of appropriation and a survey, to make out, and locate the ground thus withdrawn, this ivas notice to all the world, that no right to the land, thus laid off for the proprietaries, could be acquired by individuals, without a special agreement with the proprietaries, which might or might not be upon the common terms, as the proprietors might choose. But if, before such special appropriation by the proprietaries, an individual had, in compliance with the office rules, appropriated a tract, within the bounds of the tract thus laid off for the proprietaries, such prior appropriation, would no otherwise affect the rights of the proprietaries, than in relation to the particular tracts thus claimed. Their right to the residue, remained unaffected. On this ground, the right of the first proprietor stood at the time of his death, and so continued to exist, in his legal representatives, until the year A. D. 1779, when a law of this state was passed, 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 in this law, certain portions of land within the commonwealth are excepted, and the right of the proprietaries, to such portions, is confirmed and established for ever. The lessors of the plaintiffs, who, most undoubtedly, are entitled to all [351]*351the rights of the proprietaries, are compelled to date their title from this law ; and therefore, it is necessary for them to show, that the land in p question is part of a tract of land, 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, 1st, that this 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 |-*408 1779 possessed, or to which they were entitled. But as to the tenths L or manors, it was 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 the word manor a technical meaning; for there were no manors, in a legal acceptation of the word, in this state, 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 of land called and known as a manor, in the year 1776 or 1779? To prove this fact, the licenses granted by Thomas Penn, in 1736, to about 50 settlers, in different parts of the first, as well as second survey, in which this is called the manor of Springetsbury, is strongly relied upon, to show that, even at that early period, it had acquired this name : the tenor of the warrants afterwards granted for lands within this manor, varying from the terms of the common warrants, and this variance proved by witnesses, as marking this for manor land : 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 surveyors and public officers, whenever warrants were issued to survey lands in the 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 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.
2d. Was it duly surveyed and returned into the land-office before the 4th of July 1776? That it was surveyed in 1768, is admitted; but it is contended, that it was not duly surveyed. It is so contended, because it was surveyed in 1722. That survey, it is said, was void, because made without authority, was not executed by the surveyor- general, and was returned into the council of state’s office. The survey then being void, it is said, vitates the survey of 1768 : the former being considered as the foundation, and the latter as'the superstructure. The survey of 1768 is executed, it is argued, under a warrant of re-survey in 1762, and consequently, the repetition of an act which has no validity, cannot give it validity. It is further argued, that the recital of the loss of the survey of 1722, is a mere pretence, a fraud, to enable the proprietaries to exchange bad land for good. Now, I do not understand this kind of logic: it is far too refined for the sober judgment of men who have to decide. 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 was good, and if the warrant of 1762 was merely an order to retrace the lines of that survey, the counsel might, with some plausibility at least, argue that the surveyor was r*40g bound to pursue the lines *of the former survey ; and this would give *- [352]*352color to Ms observations, founded on the mistake of the public officers, as to the proper lines of the survey. But if the first survey was unauthorized and utterly void, then the second could not, in the nature of things, be a re-survey. Whatever words were used in the warrant, there is no magic in that word. If there never was a former survey, there could be no re-survey ; and consequently, the survey of 1768 was an original survey, founded on a special warrant, marking out the lines and bounds, by which the surveyor was to go, and such is the fact in this case, although the survey of 1722 is referred to in the warrant of 1762, yet the lines to be surveyed under this second warrant, are specially described. To those he was confined, and had he departed from them, the survey would, unless it was rectified by acceptance, have been void, as against the proprietary, and he might have directed it to be made again. It is not denied, but 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 defendants, or any other person, can now say, that it was void. Had not the proprietary a right to appropriate to his private use, the land included within the survey of 1768, in part of the tenth, which he had always reserved to himself? And if the warrant and survey make the appropriation, what does it signify, whether there was a prior survey or not ? or whether it was good or bad ? True, if, previously to the warrant of 1762, thix-d persons had acquired a right to parcels of this land, or had done so aftexuvax-ds, and before the survey in 1768 (but without notice of the wax-rants), the proprietaries would have been bound to make them titles, upon their complying with the terms of the grants to them. But this could not impeach his title to the residue of the land, comprehended within the lines of the survey. Upon the whole, then, the court is of opinion, that this manor was duly sui-veyed; and it is admitted, that the survey was returned into the land-office, before the 4th of July 1776. If so, the plaintiff’s title is unquestionable.
2d. Has the defendant a better title ? He claims by wan-ant, in 1747, regularly bx-ought down to him, for 95 acres. He has no patent, but yet, by the common law of this state, a warrant and survey, if the consideration be paid, is considex-ed a legal title against the proprietax-y, as much so as if he had a patent. If the considex-ation be not paid, then the legal title is not out of the proprietaries ; but still the warrant-holder has an equitable title, whxeh it is in his power to render a legal one, by payixxg what is due to the proprietaries. No proof is given of payment by the defendant, or any one of those under whom he claims, but you are called upon to px-esume it from length of time. Now, in a case of this sort, there is no room for presumption, the very cix-cumstance of the defendant appearing in court without a patent, or without showing or pretending, any ever was granted, destroyed *41 nl *PresmQption, which length of time might have created. For if In3 J had paid, he would have been entitled that moment to a patent: the one was the necessary consequence of the other. Men might long forbear to call for this confirmation of their titles, from the inconvenience of paying the consideration, but that he should pay, and not go on to perfect his title, is altogether improbable, and certainly not to be presumed ; but if the jux-y could presume anything from length of time, yet that presumption may be repealed, and in this case is.
The deed of 1771, from Pence, the grantee, to Shultz, proved that he had [353]*353not paid, and the deed from Shultz’s executors to Stump, in 1794, that it was then paid. The defendant, therefore, has not a legal title to authorize a verdict in his favor ; but he has an equitable title, and may compel a grant upon paying or tendering what is due to the plaintiffs, with costs of this suit And if the plaintiffs should then refuse, this court, sitting in equity, would compel them, at the expense of paying costs. In the state court, I understand, the jury may make a kind of special or conditional finding, in consequence of the having no court of equity ; but this court having equitable jurisdiction, your verdict must be general.
Verdict for the plaintiffs.
As some of the persons interested in the ejectments brought for lands in Springetsbury manor, had purchased from the state; and as the state would be entitled to all arrears of purchase-money, if the proprietary title should not be established; the legislature had authorized the governor to employ counsel to assist the counsel of the defendants. After the decision of the above ease, the legislature appointed James Ross and James Hopkins, Esqs., to take defence in the next ejectment, Penn’s Lessee v. Groff, which was tried in April term 180G; and upon the same charge, the same verdict was given. The defendant’s counsel having tendered a bill of exceptions to the charge of the court, arrangements were made to obtain a final decision in the supreme court, upon a writ of error. It appears, however,'from the journals, that the legislature is not disposed to interfere any further.