| Pa. | Mar 15, 1804
So much was left to the jury, on the fact of the survey, at the time of trial, that I see no reason to set aside the verdict.
The equitable title by improvement and settlement, I thought at the trial, and still think, was in the plaintiff claiming under Daniel Netherey, and not in the defendant claiming under Charles Stewart, if he really sold his pretensions. But there having been no previous possession within seven years next before the bringing of the action, the plaintiff was barred from recovering under this claim by the act of limitations.
The jury have found by their verdict, that a survey of these lands was made for Burney. That fact was submitted to them, *and being established, the case is taken out of the limi- ra. tation act [*43
But as the survey returned excludes the lands in question, if Howard laid out his money, being led thereto by the return of survey, and knew nothing of what had been done, I should be of opinion that the defendant was concluded by his return. No evidence was given when the survey was returned ; and there are facts and circumstances which exist in the case, from which the jury might rationally infer that Howard was apprised of the legal title of Burney to these lands. The marked trees on .the ground ; the warrant of Howard calling for the precise quantity of 72 acres, and stating the improvement of Stewart to commence from the 1st March 1758, the time of Burney’s supposed improvement; the receipt for the surveying fees six days after the Receiver General’s receipt, as of a survey made, when the draft purports it to have been made eighteen days afterwards,. viz. : 2d July 1770, when united together, form a mass of circumstantial evidence which might induce the jury to believe, that Howard well knew of the previous transactions. I am not
Judgment for the plaintiff.