1 Yeates 512 | Pa. | 1795
And in the charge of the court to the jury, observed, that it could not be seriously pretended that the four-log improvement’ never prosecuted for twenty-eight years, could be deemed the shadow of a right. To give an improvement any equity whatever, it must not have the smallest cast of an abandonment. The weight of evidence shews, that William Brashiers was in possession of the lands when the judgments were obtained and the levies made; and there can be no difficulty in pronouncing under our acts of assembly, that if he could *sell his interest therein to the defendant, the sheriff might at an anterior period L take the same in execution. Should it be pretended that his sale overreaches the judgments and executions, the onus pro-
There can be no doubt, but that on every principle of moral and political obligation, the compact between the two states should be held sacred. And this brings it to the question, whether William Brashiers’ improvement is the elder or prior right, under Pennsylvania. So wild and extravagant have been the notions of many people about improvements, that it is not easy to define them. In the language of the act of 30th December 1786, it is understood to be “an actual per- ‘ ‘ sonal resident settlement, with a manifest intention of mak“ing it a place of abode, and the means of supporting a “ family, and continued from time to time, unless interrupted ‘ ‘ by the enemy, or by going into the military service of this ‘ ‘ country during the war. ’ ’ The settlement in question clearly comes within this description.
There are three kinds of rights: jus profirietatis,jus possessions, and jus vagum, or an imperfect right. Settlements may be ranked among the latter species. It is a right to preemption; a claim to a favour.
William Penn, esq. the first proprietor died in England, in 1718, and his son Thomas continued in his minority until 1731, Richard his other son, until 1732. In this interval their land * office was shut up, so that during that time warrants and patents were not regularly granted by the commissioners of property, for transferring lands to applicants. To further the settlement of the then province, within that period, tickets signed by one of the commissioners of property, or by the secretary of the land office, came into practice.
When the land office for the sale of the lands purchased at fort Stanwix was opened, on 3d April 1769, “those who had “settled the plantations were declared to have a preference;” and many judicial decisions were conformable thereto. The acts of 37th November 1755, 10th October 1779, and 16th. March 1785, make improvements subjects of taxation. Several other laws since the revolution are favourable to real settlements, and particularly the limitation act of 26th March 1785, which pre-supposes, that under the received usage, a recovery might have been before legally had under a prior settlement, improvement, or occupation, where there had been an attendant possession within seven years before the suit brought. The former custom of granting the lands to real improvers, is clearly hereby recognized. And this custom is much older than the Virginia act of 3d May 1779, which gives for the first time, a preference to settlers, “who “had made a crop of corn, or resided on the lands for one “year before rst January 1778.” There can be no reason for 'making a distinction between the settlers under Virginia and Pennsylvania. Between claimants under Virginia, the certificate of the commissioners is conclusive evidence, but not where one of the parties claims under Pennsylvania. And so have been all the decisions. Under all the circumstances of .the case before us, we think that the plaintiff is entitled to recover, under every principle of law and equity.
Verdict for the plaintiff.