¶1delivered the opinion of the court,
¶2Prima facie the title of the plaintiff was good. He claimed some sixty acres and ninety-nine perches of a certain tract warranted to one Bobert Miller, on the 10th of April 1794, which was surveyed on the 23d of September 1849, and returned to the Land Cffice and accepted three days thereafter. As appears from the “ Old Purchase Blotter,” this warrant, with 288 others, was paid for by John Hall, in behalf of “ Ingersoll, &c.,” on the 17th of September 1794. This payment of purchase-money vested the title to these warrants in Ingersoll and his associate, if any such he had. The plaintiff then, further, in order to connect himself with this title, offered the will of Jared Ingersoll, proved December 30th 1822, devising his estate to his wife Elizabeth, and also the will of Alexander James Dallas, proved January 23d 1817, devising his estate to his wife Arabella Maria. These were followed by the deed of these devisees to Abraham Kerns, dated February 26th 1833, conveying •the whole of the warrants above recited, including the Bobert Miller. Then followed the offer of the deed of Abraham Kerns, dated 19th of August 1834, to Samuel M. Barclay, conveying the one-half part of 259 warrants, and referring to the deed above recited for a more particular description.
¶3*140All tlae above mentioned offers were objected to on the fround, first, that there was nothing in the case to show that ared Ingersoll was the “Ingersoll” who paid the purchase money as above stated; second, that no title was shown in either Ingersoll or Dallas to the Miller survey. We think, however, with the learned judge of the court below, that this objection cannot be sustained. It is true that Ingersoll is a family name, but it does not follow, in the absence of proof to the contrary, that there was at that time any other bearing that family name except Jared, who claimed these warrants, or who professed to have an interest in them. Then, again, .the letters, “ &e.,” without explanation, mean nothing, and may be disregarded. We may, therefore, exclude Dallas from the title altogether, and yet vest title in the plaintiff, for if Mrs. Ingersoll, who, in that case, would be the sole owner of the Miller warrant, chose to join in a deed with Mrs. Dallas, conveying the whole of this land to Kerns, she would be estopped from denying his title. We also agree with the court below, that the notorious and undisputed claim to these warrants by the devisees of Ingersoll and Dallas, and their vendees, from 1833 down to the location of the warrant in 1849, was presumptive evidence in favor of the fact that Jared Ingersoll was identical with the “Ingersoll” whose name is found on the “Old Purchase Blotter.” This disposes of the 1st, 2d, 3d, 4th, 6th and 7th assignments of error.
¶4The only remaining assignments which we consider of sufficient importance for notice are the 8th and 9 th, which except to the court’s refusal to affirm the defendants’ 3d and 4th points. Those points are as follows': — “That the warrant in the name of Robert Miller being a descriptive warrant, and calling for land ‘this day granted to John Miller,’ and the survey thereon, in 1849, having been shifted from its true location, and not calling for any land granted to John Miller, and the said survey having been, on the 5th of April 1852, rejected by the Board of Property, the warrant issued on the 20th of April 1852, to John Crotsley, followed by a survey made 4th and 5th of May 1852, and a patent issued to him on the 26th of August 1873, while the Robert Miller was lying on the rejected files of the Land Office, vested in John Crotsley a good title, as against the Robert Miller, and the plaintiff cannot recover.”
¶52. “ That as against the John Crotsley title, perfected while the .Robert Miller lay in the Land Office, a rejected survey, the. Robert Miller title cannot prevail.”
¶6We -think the affirmance of these points was well refused.
¶7In the first place, there was but a-single question before the Board of Property, and that was whether the Myerly warrant *141was well laid upon the land already occupied by the Miller survey. The object of the caveat was to settle this question and this alone, and when the board went beyond this and attempted to set aside and reject the whole of the Miller survey, which had been returned and accepted some two years before the date of the meeting of that board, it exceeded its jurisdiction, and its judgment was, to that extent, void. So far as the Myerly location was concerned, no doubt, the sentence of that body was operative, and as no attempt was made, within the six months prescribed by the Act of 1792, to impeach it, it must now be regarded as final and conclusive. But we cannot see what this warrant has to do with this case. The defendants do not claim under it, but under the Crotsley warrant of May 5th 1852, and as the evidence nowhere shows whether the Myerly warrant embraced four, or four hundred, acres of land, it was good for nothing as an outstanding title.
¶8But, in the second place, the reasons given by the Board of Property for the rejection of the Miller warrant, and which are now relied upon to reverse the court below and defeat the plaintiff, are not sound. I find it ruled as early as 1Y97, in the case of Irwin v. Moore, per Y bates, J., reported in 2 Smith’s Laws, 187, that a shifted survey, if fairly made, returned and accepted by the proper authority, when there is no intervening opposing right, will hold and secure the lands. And it was said, in Funston v. McMahon, Idem 188, that the practice of all deputy surveyors to shift lost locations was perfectly1- familiar to the whole country, and was never questioned before the revolution, but that it was necessary that a return should be made thereof to the office of the surveyor-general, in order to operate as constructive notice to other applicants. And in McKinney v. Houser, Idem 190, it was said, by Smiths J., that the acceptance of such surveys was never refused by the Land Office, though the surveyor had no direct authority for making them. Kyle v. White, 1 Binn. 246, is another case in point, as are also Miles v. Potter, 2 Binn. 65; Fox v. Lyon, 9 Ca. 474; Mix v. Smith, 7 Barr 75, and many other authorities, which it would be useless to cite.
¶9It will thus be found that the reasons given by the board for the rejection of the Miller warrant were altogether unsound, and opposed to the whole current of authority, and we must, therefore, consider the Miller warrant effective, as against the Crotsley survey.
¶10During the argument objection was taken to the Miller survey, because it embraced an excess of thirty-eight acres over the amount called for by the warrant. But an objection such as this cannot be sustained, since the Act of 1819, which author*142izes the surveyor-general to accept such surveys without a warrant of acceptance.
¶11All that is now required is that the surplus be paid for at the time of acceptance. This, however, is a matter for the surveyor-general, for the neglect of which he must answer to the Commonwealth, and as' the legal presumption is that that officer has done his duty (Burford v. McCue, 3 P. F. S. 427), a question of this kind has no standing in the case in hand.
¶12Judgment affirmed.