majority">

The opinion of the court was delivered by

Woodward, J.

The plaintiffs claim under the oldest warrants; the defendants under the oldest surveys.

The plaintiffs’ warrants are not only the oldest, but are also reasonably descriptive on their face. The law of such warrants is, that if surveyed in reasonable time on the land designated or referred to in them, the title commences, by relation, from the date of the warrants. If, however, though surveyed in reasonable time, they be laid on other land than that which they call for, they become what is termed shifted warrants, and title under them commences only from the return of the surveys into the land-office. Younger warrants, surveyed on the same land, and returned before the surveys of such shifted warrants, take precedence of them and constitute the better title. The reason given in the cases, for this postponement of the older *479and descriptive warrant is, that the contract, in consequence of the descriptiveness of the warrant, having attached to the lands described, cannot be changed, by the owner of it, to other lands, until the Commonwealth, through its officers, assents to the change, by accepting the survey. The acceptance of a survey of land not embraced in the original contract, is a new bargain, that cannot have a retroactive operation against a person deriving right from a prior survey: Lauman v. Thomas, 2 Binn. 58; McKinney v. Houser, 2 Smith’s Laws 190; Moore v. Shaver, 6 S. & R. 133; Mix v. Smith, 7 Barr 77; Jones’s Land Law § 32.

If, therefore, the Fox warrants are to be treated as shifted warrants, they gave title only from the return of the surveys; and as this, though within reasonable time, was subsequent to the surveys of the younger warrants, the defendants have shown the oldest and best title to the land in controversy.

The general question in the case is, then, whether these warrants must be regarded as shifted warrants or not. That they are descriptive is not denied. Were they laid upon the ground called for ?

The warrant in the name of John Fox called for “ 400 acres of land in Bald Eagle Valley, adjoining a survey in the name of Mordecai Massey on the north, and adjoining land of Fowler & Co., in Franklin township, county of Huntingdon.” The warrant in the name of James Fox called for “400 acres of land adjoining lands this day granted to John Fox, Sr., on the north, in Franklin township, in the county of Huntingdon.”

The plaintiffs are obliged to admit that the warrants, as surveyed and returned into the land office, do not agree with these calls. John Fox adjoins Mordecai Massey on the north, but is not within 150 perches of the Fowler lands, and James lies at the east instead of the north of John.

Now, the Massey tract and the Fowler lands being well-known lands, about whose location there is no dispute, and lying moreover in such relation to each other that the John Fox warrant might have been so surveyed as to touch them both, is it not an irresistible conclusion, that that warrant was shifted from the ground originally designated ? A warrant that designated two well-known boundaries is located nearly half a mile from one of them, without any overruling necessity — is not that a shifted warrant ?

This question derives additional force, from the consideration that where several warrants are taken at the same time, one of which calls for known boundaries and the next for that warrant, and so on through the series, the location of the whole block is to be determined by the location of the leading warrant. This I understand to be an established rule in the location of blocks of surveys. In accordance with this rule, the location of James Fox must be determined by that of John Fox, which was the lead*480ing warrant. Where was John Fox laid ? Having ascertained that, we ought to look for James Eox as adjoining it on the north. On these principles of location the plaintiffs would have no title to this land; but they insist, that these are not the principles that should be applied to their case.

They assume that John Eox applied and paid for both warrants, and thus placed on the records of the land office notice to all the world that 800 acres of land in Franklin township, adjoining Massey and the Fowler lands, had been appropriated by him. They say that the marks on the ground show that the exterior lines of this body had been run — that the interior or division line between the two tracts was not run, and that they were under no necessity to run or mark it — and that those exterior lines do bound on both the Mordecai Massey and the Jacob Shuler surveys, the latter of which is understood to be one of the body known as the Fowler lands. The result of this position is, that James Fox, as returned into the land office, lies on the east of John Fox, instead of the north; but the plaintiffs’ remedy that, by changing the division line between the two Fox tracts, from a line north and south to a line east and west. They feel free to take so great a liberty with that line, because it was not actually run on the ground, and because a man having a body of 800 acres of land has a right to divide it as he pleases. So divided, John Fox would answer all its calls, and James Fox would lie at the north of John. In other words, the warrants would be located agreeably to the original contract made with the Commonwealth, and the doctrine of shifted warrants would have no application.

The argument is plausible, and the propositions it involves as to notice of appropriation — the sufficiency of a survey that ran only exterior lines — and the right to run the dividing line east and west, instead of north and south, must all be conceded. The last, in regard to the division line, could not be admitted as a general proposition ; for I hold that the owner of these warrants would be concluded by the line returned into the land office so long ago, as against all parties claiming subsequent to that return ; but the reason why the proposition is true in this case, is, that the surveys under which the defendants claim were made before the Fox surveys, and of course before their return. As to them, or any owners of that title, no change of the division line of the Fox surveys could work a surprise.

Conceding, therefore, to the argument, all of its minor propositions, it rests at last on the assumption, or, as the plaintiffs would say, on the proved fact, that John Fox, whose heirs they are, was the owner of both of the Fox warrants. This is obviously the major or fundamental proposition of the argument, and if this be not well established, the argument goes for nothing.

Let us see, then, how the proofs stand on this point. The plain*481tiffs first showed the entry of June 13th 1794, from purchase blotter, No. 5, in words and figures as follow: — ■

“ No. 12,889. J. Fox. Two warrants, 800 acres, at 50 shillings per C. Paid in specie, ¿G20. Fees, 20 shillings, paid.”

This entry would import that the application was made, and the purchase-money paid by one person, who may have been either John or James Fox, but afterward the applications themselves were given in evidence. They were dated December 16th 1793, and were on the same paper, which accounts for their having the same number on the blotter in the receiver-general’s office, but the paper is called “Application James and John Fox.” Then follows the application of each for his respective warrant, and the usual attestation of two justices, that the land was vacant.

July 25th 1799. Patent to James Fox, recorded in Centre county, January 17th 1810.

Same date. Patent to John Fox, Sr.

March 24th 1817. Will of James Fox, authorizing his executors to sell and dispose of his lands, &c., and dividing the residue of his estate between his step-son, David Morgan, and the heirs of his deceased brother, John Fox.

Assessments of taxes against James Fox were shown from 1818, and against John Fox from 1801.

Now, do these facts warrant the assumption that John Fox took and paid for both warrants ?

The blotter, which at most is only primd facie evidence of who pays, is as good evidence that James paid as that John paid. It is probable, that one paid for both, but it is impossible, from this entry, to determine the ownership of the money. The continued separation of the titles during the lives of the Foxes, and until James devised a moiety to the heirs of John, is a strong indication of original separation. And the legal presumptions arising from lapse of time point the same way. In Strimpfler v. Roberts, 6 Harris 302, it was decided, on great consideration, and reaffirmed in Brock v. Savage, 7 Casey 421, that where a warrant is issued to one person, and the purchase-money is paid by another, and the patent is afterwards taken out by the nominal warrantee, the right of him who paid the purchase-money is gone, unless he takes possession of the land, or brings ejectment to recover it, within twenty-one years from the date of the warrant; and after that lapse of time he cannot recover, no matter how clearly he may be able to prove that the legal owner was in the beginning a trustee for him.

It was not proved that John Fox paid the purchase-money for the James Fox warrant, but, in view of this principle, what boots it if he did? The patent of 1799 vested the legal title in James, and even though he was trustee for John, the equities of the latter were gone after twenty-one years of non-claim.

*482■ These are the reasons why the ground on which the plaintiff’s counsel built up their very ingenious argument cannot be conceded to them. We cannot treat the warrants of 1794 as belonging to one man, and the 800 acres of land covered by them, as his exclusive property. The proofs in the case do not permit us to do so, whilst the presumptions which the law is wont to make in behalf of paper titles, compel us to regard these warrants as separate properties, belonging originally to the respective owners whose names they bear. So regarding them, it appears that they were not located according to their calls, and were consequently returned as shifted warrants, the title under which must be held to have originated when the returns were accepted. But before that time, that part of the land covered by them which is in controversy in this suit, had been taken away by the warrants and surveys under which the defendants claim, and therefore the plaintiffs had no right to. a verdict.

• We think the will of James Pox gave his executors power to sell the land he held under his warrant of 1794, and hence there was no error in admitting in evidence the deed from the executors to David Morgan.

As the case was tried, we think there was no error in withholding it from the jury, and directing a verdict for defendants.

The judgment is affirmed.

Citation profile

Relationships

How this case has been treated — in progress