Lessee of Grant v. Eddy

2 Yeates 148 | Pa. | 1796

By the court.

The objection appears to us to be ill grounded ; but if sustained it would operate as a two edged sword. Eor if the insertion of a county in the warrant, variant from that wherein the justices live, would vacate such warrant as to the lands out' of the proper county, then the title to the lands in Luzerne county, surveyed under the plaintiff’s warrants, would be bad. But such informalities cannot, in our idea, defeat a right.

The words of the act of 1st April 1784 are merely directory, and do not avoid a warrant for want of a certificate, or for an improper one. The object of the legislature was to prevent persons from obtaining a title to lands which had been before occupied and improved, without paying interest on the purchase money during such occupation. Here that design was fully answered. The certificates both of the plaintiff and defendant, show that the lands were wholly unimproved, and no fraud could possibly be intended against the state. The boundaries between the two counties could only be guessed at.

To the cases already cited by the defendant’s counsel, another may be added. Under the act of assembly of 4 pinnae, it is directed, that it shall not be lawful for any sheriff or other officer to sell, or expóse to sale, any lands, &c., which shall or may yield yearly rents or profits sufficient, beyond all reprizes, to pay the debt and costs within seven years; nevertheless, in the case of Duncan’s lessee v. Lawrence, at Nisi Prius at Carlisle, before the revolution, May assizes 1796, it was resolved, that the want of an inquisition did not vitiate the sale, where it was evident that the debt and costs could not be satisfied Avithin seven years, out of the annual rents and profits. Let the warrants be read : of their operation and of the surveys made thereon, the court will give their opinion to the jury.

It appeared in the course of the evidence, that the defendant had paid into the receiver general’s office 420i., on the 17th September 1792 ; 620i. on the 10th January 1798, and 2170i. on the 12th August 1793, besides the usual office fees. But the proof on the part of the plaintiff was extremely defective in this particular. The certificate of the receiver general charged the “ lands Dr. to cash,” and there was only one entry of cash credited, as applicable to the subjects in dispute, viz. 94i. 10s, 6af. on the 26th January 1793.

A caveat had been filed on the part of the plaintiff on the 26th February 1793, and a decision of the Board of Property was had on the 28th March 1794, that the deputy surveyor should execute the defendant’s warrants, the same having the priority in point of time and well describing the lands. To which this remarkable passage was subjoined —“ but this decision is not to influence the determination of any other cause relating to lands in dispute in that part of the country, between other parties.” The present ejectment was commenced within six months thereafter.

Much stress was laid by the plaintiff on this supposed circumstance, that the waters referred to in the defendant’s warrants were incorrectly denominated; and a distinction vras attempted to be set up between the instances of a vague and general warrant being ascertained by a marked tree or other distinguished object, and waters improperly described being ascertained by such object. In the former case, it was said the dubious general words were restrained and confined by the specified particulars ; but not so of the latter, because of the manifest contradiction therein.

On the part of the defendant, it was insisted, that the lands in controversy were described in his warrants with accuracy and precision, and the different streams of water denominated with correctness.

The court in their charge to the jury observed, that it would be highly unreasonable to expect the same precision and correctness in the descriptive parts of warrants, to take up lands in a tract of territory newly explored, as where the adjacent country had been fully settled and long known. This remark holds with peculiar force, in the description of waters flowing through a considerable extent of ground, where parts of the stream may properly be deemed main branches, in reference to other parts in the newly discovered lands, but which, on taking the whole river or creek into view, could not thus be denominated with propriety. It has long been considered sufficient, if the warrant is so couched as to point out the lands contemplated with certainty to a common intent. Where an object, visibly marked, is referred to, it reduces general and indescriptive expressions to a fixed certainty.

The warrant lately granted by the land office bear equal date with the application of the different parties ; but the periods when they have actually issued, can only be ascertained from the payment of the purchase money. In this mode, the time of issuing the defendant’s warrants may be ascertained.; but from the deficiency of the proof adduced by the plaintiff, it cannot be pronounced with certainty when his warrant issued.

We know however, that the applications for the defendant are earlier than those of the plaintiff, and that the former must succeed, provided the lands are described with convenient certainty, and the party has not incurred a forfeiture of his pretensions, by gross laches or delay.

Priority of application gives a certain degree of equity. Tide law passed 22d April 1794. 8 Dall. St. Laws, 581. The deputy surveyors, by the 5th section of the act of 3d April 1792, are directed to survey according to the priorities of the warrants. 3 Dall. St. Laws. 210. But all applications must be pursued within a reasonable time, by payment of the purchase money and taking out warrants, and procuring surveys to be made. It would under, a different construction, lay in the power of the earliest applier to engross and monopolize the whole country, by a long list of applications contiguous to each other, begining at a certain fixed point, without paying a single shilling into the coffers of the state, until it suited his convenience ! This never could have been the intention of the legislature.

What that reasonable time is, appears unnecessary to be determined in the present suit, because it cannot come in question, unless it clearly appears that the lessor of the plaintiff has paid his money into the treasury sooner than the adverse party, and that the latter has been guilty of manifest negligence.

As to the defendant’s warrants calling for lands in Luzerne county, the objection seems to have little weight. The words must be considered as a matter of description. The lines of these two contiguous counties were not run. The lessor of the plaintiff knew not in which of the counties the land would lie, and therefore designates them in his warrants in the one county, or the other. An individual conveying four hundred acres of land, for an adequate consideration,*to another, by the description used in the warrant granted in the name of Isaac Stephens, and placing its situation in the county of Luzerne, if it should after' wards appear from the fork of the main branch of Big Mehoppenny creek, the blazed birch tree, and the adjoining lands of Christopher Marshall, that the tract intended to be purchased was situate in the county of Northumberland ; (vide 1 Ld. Raymond, 728,) it will not be seriously doubted, that the vendor should be bound thereby, and that he is not at liberty to grant the same tract to another. Why, from parity of reason, should not the commonwealth bo bound by the act of their proper officers ?

Messrs. Duncan, W. Tilghman, D. Smith and Cooper, pro quer, Messrs. Ingersoll, E. Tilghman, Thomas, Clymer, 0. Smith and Hall, pro clef.

The jury must judge for themselves, on a full consideration of the defendant’s warrants, whether they are not sufficiently descriptive to cover the lands in question. The caveat filed by the lessor of the plaintiff on the 16th February 1793, furnished some ground for the delay of payment of the residue of the purchase money by the defendant, until the month of August following.

Verdict for the defendant.