9 Watts 64 | Pa. | 1839
The opinion of the court was delivered by
The first error assigned is a bill of exception to the opinion of the court below, rejecting a survey, or the notes of one, made by the deputy surveyor of the district at the time, including the land in question, for Philip Lawrence, the ancestor of the plaintiff in error, as an actual settler thereon. The objection to its admission as it appears from the face of the bill of exceptions is, that it did not designate the same boundaries or quantity of land claimed by the plaintiff in error, who was the defendant in the court below, in his special defence. But it has been further objected here in argument, that it was a mere nullity and had no efficacy in it whatever for any purpose; because the land embraced by it had been previously granted by the state to the defendant in error, and therefore was rendered incapable of being taken up by the ancestor of the defendant below, by his making a settlement upon it, and having a survey made thereof by the deputy surveyor of the district within which it lay at the time; and therefore as the land lay north and west of the rivers Ohio and Allegheny and Conewango creek, the settlement and improvement made upon it by him enured to the benefit of the plaintiff below. The land, from its situation, falls within the provisions of the act of the 3d of April 1792. By this act lands lying within that section of the state, not previously or subsequently appropriated to any public or charitable use, were made liable either to be obtained from the state by warrant upon payment of the purchase-money in the first instance, subject, however, to the condition of a subsequent settlement and improvement to be commenced thereon by the warrantee within two years thereafter, and to be continued for the space of five years; or by a settlement and improvement being made thereon in the first place, to be followed by a survey thereof made by the deputy surveyor of the district at any time after the settlement, and the payment of the
The-remaining errors consist of exceptions to the charge of the-court and their answers to the first, second, third and fifth points* submitted by the counsel of the defendants below. That part of the charge excepted to, and the answers to- the first, second arid* third points relate to the question of ouster; whether-from the evi-' dence given, if the jury believed it, they ought not to have been* instructed by the court, that the plaintiff below had been ousted' from the whole of the land claimed by-the defendant, for a period
And why should it be so? Is it not because he has thus by his-acts of ownership, manifested his intention to use and occupy ths' land as his own without any regard to the owner thereof, In maiding an entry into land and taking possession of it, the’use that; is intended to be made of it, must be taken into view, in order to decide correctly as to the extent of the possession that has been-taken. If it be for the purpose of using it as a farm, it is admitted by all that his actual possession should be considered as extending
But it has been argued that the lease given to George Lawrence in 1817, only seventeen years before the institution of this action, is conclusive evidence of an entry having been made into the land so as to restore the possession thereof to the plaintiff. That though a recovery of the possession by the lessors, previously to executing the lease, may not be deemed indispensably necessary in order to render it valid, still the acceptance of it by the lessee is an admission of their possession at the time. This may be all correct enough, as against George, the lessee, were he the defendant. But it is .contended that from the evidence, the defendant below can not be considered as being seised of the freehold at that time in the land in question, but must be taken to have held it as tenant at will, or for years under George; and consequently, an entry into that part of the survey then in the actual possession of George, who must be regarded as the disseisor of that part in the possession of the defendant below as well as in his own, is in law considered an entry into the whole. Certainly, a previous entry into the land for the purpose of making a lease, either for years, or for life, was wholly unnecessary, as the land lay within this state, where the law authorises the disseissee to dispose of his land as he pleases, though it be held by and in the possession of the disseisor at the time, without his making any entry into it. Hence, that which was so entirely unnecessary, need not, and can not, well be presumed. And a_s to the admission of George, of an entry having been made into the land by his lessors, it must be confined to the land of which he took the lease, which clearly excluded the land of the defendant, which is now the subject of dispute. And though it be true that an entry into part of the land, in the name of the whole, is deemed sufficient to restore the party, having a right to make it to the possession of the
But it is contended that the defendant below has, in effect, admitted upon record the entry of the plaintiff, as alleged, into the land in 1S17. This, it is claimed, is to be inferred from the circumstance of the defendant’s having defeated the plaintiff in 1823, on the trial of his action of ejectment, commenced in 1802, for the land in question. It is argued that the defendant below must have set up such entry, as the plaintiff alleges was made in 1817, during the pendency of that action as a defence to it; and that this becomes a necessary inference, because he had, as the counsel for the plaintiff contends, no other possible defence, Avhereby he could have defeated the plaintiff as he did. It does not appear in any way upon what principle or ground the arbitrators Avere induced in that action to award in favor of the defendant. But it is most likely that on the trial there, as it was on the trial here, it was avowed either on the part of the plaintiff that the action was not
The answer of the court to the fifth point submitted by the counsel for the defendant below remains now to be considered. The counsel submitted in this point to the court, that as it had been avowed and distinctly admitted by the counsel for the plaintiff that this action had been instituted at the instance and for the use of the Farmers and Mechanics’ Bank, without any authority to do so from James Hunter, the plaintiff on record and the warrantee in the title under which the bank claimed to recover; and that as no evidence had been given, showing that the bank had any right or interest in the warrant and land surveyed under it, the action could not be maintained. The court, however, instructed the jury that it could. If the land surveyed under the warrant never was legally transferred by the warrantee; and it had been shown on the trial of the cause that the Pennsylvania Population Company were the equitable owners of the land by their having taken out the warrant in the name of James Hunter and paid the purchase-money for it to the state; or that they had purchased the land or the warrant from Hunter and paid him for it, without having obtained a legal transfer thereof; or that they had become the equitable owners of the same in any other way, it would have been sufficient to have authorised them or their assignees to have brought the action, as it is, in the name of James Hunter the warrantee. But without making such proof it is perfectly clear that the^defepdant below had not only as good, but a better right to defend himself under the title founded upon the Hunter warrant, than the bank had to maintain the action upon the strength of it to recover the land for their use; because it is an established rule in the action of ejectment that the plaintiff must recover upon the strength of his own title; but the defendant has a right in defending himself to bring to his aid any title whatever for the land, to which the plaintiff does not show that he has a right. This the defendant may do, though he has not even the shadow of claim or title to the land himself. This being the settled rule; and it being admitted that all the claim or right which the bank had to the warrant and the land surveyed under it, was de
For the same’ reason, that is, that no right on the part of the company to the land was shown on the trial, it is obvious that those claiming under them had no right to enter upon it, and by this means claim to have dispossessed the defendant below. For without a right to the land no one can claim to gain any thing by an entry into it, more than he can do by bringing 'an action to recover it. “ The entrie of a man,’.’ says my lord Coke, “ to recontinue his inheritance or freehold, must ensue his action for recoverie of the same.” Co. Lit. 252, b; 3 Black. Comm. 174-5. The right of entry, therefore, is governed and regulated in this respect by the right of the party to maintain his action; for unless he has a right of action he has no right of entry.
Judgment reversed and a venire de novo awarded.