1 Binn. 227 | Pa. | 1807
after stating the facts, proceeded as follows. It was objected at the trial that the survey of the land in question was void, having been made before the warrant came to the hands of the deputy surveyor. Judge Teates was of opinion that under the circumstances of this case the survey was not void; and that is the point now to be decided.
As it is admitted that the commonwealth received the full price of the land, that there has been at some time an accurate survey marked on the ground, and that when the appropriation was made for the plaintiff, there was no settler on the land, nothing but very clear and positive law ought to deprive the plaintiff of his purchase.
The objection to the survey is founded on the 9th section of the act of 8th April 1785. I shall give no opinion at this time whether the provision of this section extends to surveys made under the act of 3d April 1792. I understand that in the case of Wright’s lessee v. Wells tried at Nisi Prius at Washington before the late Chief Justice M'-Kean and Judge Teates, it was held that it was restrained to lands then lately purchased by the commonwealth from the Indians, and intended to be sold in a short time. But supposing that it extended to all surveys on warrants issued after the passing of that act, though the present case may fall within the words, it is evident that it is not within the spirit and intention of the act. The intent was to prevent
I cannot assent to the opinion delivered by the Chief Justice. The act of 1785 I have no doubt extends to this case; and although I will not say that an omission to go on the ground and mark the lines avoids the survey, as this part of the section may be considered directory, yet if the survey is not made after the warrant comes to the hands of the deputy surveyor, it is absolutely void; for that part of the section is positive, and not directory. In this case the survey was not made after the warrant was delivered to the deputy surveyor.