
    Smith against Fultz.
    In Error.
    
      Monday, October 12.
    ERROR to Cumberland county. ...
    A, took out a warrant in trust for B, on was made m the following and which aúot^he warrant. The never7 returnthóse'who aud under resided on pau'rtag0 years aftercond survey was made by virtue of the same warrant, on other land, which also answered the calls of the warrant. This survey was not returned, nor were the surveying fees paid, nor was any improvement made on, or possession taken of the premises.
    The plaintiff below, Jane Smith, claimed the land * , which this ejectment was brought, under a warrant, dated 13th September, 1774, in the name of John Agnew, for acres, adjoining some improvements made by William Hayes, on the south side. of Sideling Hill, on Campbell’s Run, Rye township, Cumberland county. On this warrant, a survey was made by Matthew Henderson, deputy surveyor, on the 13th November, 1775, on a tract of land about one mile distant from.the land in dispute, which answered the call of the warrant, with reasonable certainty. The survey was returned, but it appeared, that about the year ±770, improve-]y ments had been made on the tract for Sarah Wilson, in trust for whom, the warrant was taken out by Agnew, and from whom, as heir at law, the plaintiff derived title; that from that time, until her death, which happened about ten or twelve years before the trial, she and her tenants, constantly resided on it, and that the plaintiff from that period, until the'cause was tried, continued to reside upon it. On the 19th May, 1789, another survey was made on the same warrant, by Samuel Lyon, the deputy surveyor, on the land in dispute, which also corresponded with reasonable certainty' with the description in the warrant. This survey also, was never-returned, nor were the surveying fees ever 'paid; but in the fall of the year 1809, when William Murphy, under whom the defendant claimed, was making-an improvement on the land,'he was forbidden, by Moses Hayes, who shewed him the survey of 1789, informed him that the warrant had been conveyed to him by John Agnew, and referred him to the records in Carlisle, for the truth of the fact. On searching the records however, no'such conveyance could be found.
    
      
      Held, that the second survéy was void, and would not prevail against a fair settler, although he had actual notice of it, before he begaaliis settlement.
    
      On the part of the defendant, the evidence was, that in the year 1809, an improvement was made on the land in dispute, by William Murphy, who by deed, dated, February 2d, 1810,-conveyed it to Frederick M‘Cooskey, by whom a warrant was taken out on the 6th February, 1812, interest from the 1st March, 1810. On, this warrant, a survey was made on the 6th March following, of 175 acres, by William Wheeler, who in the same year, returned it as land in dispute with Jane Smith. Jane Smith never entered a caveat.
    
    The Court below charged the jury, that if the warrant, under which the plaintiff claimed, was really descriptive of the-land surveyed in 1775, and if it appeared to the jury from all the facts béfore them, that it was intended for that tract, their opinion was, that it was not in the power of the plaintiff to remove the warrant, and by a new survey in 1789, under the same warrant, appropriate other land more than a mile distant; that after such a lapse of time, notwithstanding the land in- dispute answered the description in the warrant with rather more accuracy than,the land first surveyed, a fair settler was entitled to consider it as vacant, particularly as it did not appear that the survey of 1789, was made by the deputy surveyor with any notice of the prior one of 1775, or by any order of the board of property; as no improvement was ever made, or-any act ever done, in prosecution of the last survey, and as no surveying fees had been paid; and that the notice given by Hayes, to Murphy, in the autumn of 1809, conferred no right on the plaintiff. ' -
    The jury found a verdict, in conformity with this charge, and the cause was removed by the plaintiff to this Court.
    
      Car others and Mahon, for the plaintiff in error,
    contended, that the Court below erred in their instruction to the jury, that under the' circumstances of this, case, the plaintiff was bound by the warrant of 1774, as surveyed in 1775, and that he could not by a subsequent survey, before the first was returned, appropriate'other land without a new warrant. It is not contended that a second survey can be made after one has already been executed on the same warrant;- the argument is, that the first survey was,.by a mistake of the deputy' surveyor,.laid upon the wrong tract; a tract which John Agnezv held by improvement, and which he.afterw.ards devised to Sarah Wilson, who had-no title to -it, except under his will; In J789, the mistake was discovered, and rectified by Agnexv, who procured a survey to be made on the land in dispute, by virtue of the warrant of 1774, which he held in trust for Sarah Wilson, his first survey never haying been returned. No third person had in the mean time, acquired an interest in. the land; there could therefore, be no objection to having the error amended by a new survey on the land, for which the warrant was designed. Before a survey is returned, the lines may be extended, and it may be otherwise corrected by the deputy surveyor, provided he does not interfere with prior rights. Lessee of Biddle v. Dougall
      Lessee of Miles v. Potter.
      
       And where the land surveyed on a location, has been taken away by an older location, a new survey may be made on other land, answering the call of the location rather better, provided the first survey has not been returned. Lessee of Waddle v. Gray.
    
    The circumstance of the survey not having been returned, cannot affect the.plaintiff’s title, so far'at least, as relates to the defendant. The facts given in evidence, are equivalent to a return of survey; they prove an actual and legal notice of the appropriation of the land, by the survey of 1789, in pursuance of the warrant of 13th September, 1774; and even on a shifted survey, the rule is, that the title attaches from the return, or from notice, before return.
    
      Metzgar and Watts, for the defendant in error,
    answered, that this was a bold attempt, to hold two tracts under one warrant. When a survey is made, the warrant is functus officio, and the presumption of law is, until the contrary appears, that every survey is made with the consent and knowledge of the warrantee. When he dissents, it is incumbent on him, to use diligence in signifying his dissent, and making his complaint. Lessee of Drinker v. Holliday.
      
       Lessee of Porter v. Fur gits on. 
      
       Agnew knew where his warrant was laid, and far from shewing any dissatisfaction, acquiesced in the first survey, from 1775, till 1789, and even then, no step was taken to carry the second survey into effect; it was not returned, nor were even the surveying fees paid. Agnew and Wilson, always held the land surveyed in 1775; it was devised to her by his will, and neither claimed any other tract, until 1789. From the whole case the conclusion is, that this was the tract for which the warrant was intended; that it was fairly and intentionally appropriated by the first survey, and that the effort now is, in an unauthorised manner, to extend the same warrant to two different tracts of land. In the case cited from Addison’s Reports, the mistake of the first survey was soon corrected, and the land upon which it was made, was taken away by an elder survey. It therefore bears little analogy to this. With respect to notice, it was of no importance, because the person giving it, had no title.
    
      
      
         2 liinn. 37.
    
    
      
       2 liinn. 66.
    
    
      
      
        Addison’s Hep. 248.
    
    
      
      
         2 Yeates, 88.
    
    
      
       3 Yeates, 60.
    
   The opinion of the Court was delivered by

Duncan J.

The plaintiff- claims under a warrant to John Agnew, of 13th September, 1774, and a survey by the deputy surveyor, on 19th May, 1789. The warrant is for 100 acres, adjoining some improvements made by William Hayes, on the south side of Sideling Hill, on Campbell’s Run, Rye township, Cumberland county. The survey was not returned; the warrant was taken out by John Agnew, in trust for Sarák Wilson, whose heir the plaintiff is.

The defendant claims under a settlement made in March, 1810, on which a warrant was taken out by Frederick Ml Cooskey, on the 6thFebruary, 1812,and a survey of the6th March, 1812, returned in dispute with Jane Smith. The settler, before he had made his settlement, had actual notice of this survey. Did it rest here, as the warrant of John Agnew describes the land with reasonable certainty, and as it was actually surveyed, and notice of süch survey given, before inception of the de-. fendants title, the plaintiff would be entitled to recover; but the case from the evidence given by both parties, assumed a totally different aspect; for it appeared, that about 1770, some improvements had been made for Sarah Wilson, on another tract adjoining William Hayes; which tract is des* cribed with reasonable certainty, by the warrant of John Agnew ; though it might with more precision describe the land in dispute, yet it was sufficiently descriptive of the land; that constantly from the time of this improvement, Sarah Wilson, and those claiming under her, have occupied that tract, and do now occupy it; that on the warrant of John Agnew, a survey of this tract was made by Mathew Henderson, the assistant of John Armstrong, the deputy surveyor of Cumberland county, on the 13th November, 1775; an official survey, remaining in the office of the surveyor of the-district.

In the conveyance from John Agnew to Sarah Wilson which transfers this-warrant, and another warrant of the 11th August,1805, for 105 acr.es, adjoining William Hayes, in the habendum, it is, to have and to hold the above described tracts of land with the improvements thereon. It is to be observed, that this conveyance, is without witnesses, and without date, and is in the hand writing of John Agnew; it would appear, that this deed was not perfected, but was intended, when it should be delivered, to be attested by subscribing witnesses, and the date inserted.

The will of John Agnew, of the 3d April, 1790, in which he devises these lands to Sarah Wilson, describes.it as a tract of land then in possession of Thomas Fleming. The evidence was, that Thomas Fleming, at that time, lived on the tract surveyed by Matthew Henderson, as the tenant of Sarah Wilson. The first presumption certainly is, that the warrant was taken out for the lands improved for Sarah Wilson ; but this amounts to demonstration, when the warrant does de^ scribe the improved land, and when, in little more than one year, it is actually surveyed on the lands improved, and when. possession, is. continued and no complaint that the survey was improperly made for 14 years, and no call for another survey during all that, time; the prima facie evidence,.that the survey was made by consent of the owner, becomes positive evidence of the fact. It never can. be, that the party can renew his warrant at pleasure, and say at the end of 14 years,. I will hold this tract by improvement, and I will remove my survey to another tract; for if it be so, this warrant may again be removed, as there is no return of either survey; and if Sarah Wilson, had made a settlement on the tract in dispute, she might claim it under such settlement, and renew her warrant again. This floating, moveable right, would, on the principles contended for, never, be fixed or permament, but might again and again be put in motion, as the interest of its owner might direct its movements. Such fluctuating, capricious, itinerant rights, are unknown to the. law.

The Court did not then err in their charge to the jury, in the manner in which they laid down the law, as applicable to this case. The survey made by. Samuel Lyon, on the warrant in 1789, was made without any authority; the warrant was functus oficio, and the survey void. Cases may exist, where a. surveyor, without order of the board of property, or direction of. the surveyor general, may make an addition, or even a new survey ; decisions are to be found to this effect; but they all depend on special circumstances, and this ingredient will be found in all of them, that the first survey was made by mistake of the surveyor or owner, or by fraud of the surveyor'; that complaint was made as soon as the discovery was made; by mistake, as including the lands held by another, or prior right, or not including the full quantity; by fraud, as made against, or without the consent of the owner; the complaint early, made, and the mistake rectified in some reasonable and convenient time. But these decisions have no application to a case circumstanced as this was; the land remained open to settlers, and purchasers from the Commonwealth; the vacant, unappropriated lands of the State, after the survey of 1775. There was no legal title under the warrant of John Agnew, nor spark of equity, the notice of which could affect the defendant; the notice of the survey of 1789, void as it was considered by the Court to be, was immaterial; notice of a void act cannot give it validity; notice is only material of some valid act. A man by giving notice of an act void in itself, and which act confers no title, either in law or equity, cannot prevent others from purchasing that, which is not appropriated to another. One having this notice, the conscience is not affected by such notice, nor is it against conscience for any other to acquire a title. In Wilson v. Mason, (Supreme Court of the United States,) 1 Cranch, 100, the effect of such notice was under consideration; the Court decided, that a caveat may be considered as in the nature of an equitable action, and be evidence, that Wilson had express notice of Mason’s survey, and the counsel for Mason insisted, that Wilson having notice, he was unable to acquire title to the land appropriated by the survey of Mason; this, observes the Court, would be true if the survey gave to Mason, title, either in law or equity; but if a survey without an entry was no appropriation, it gave no title; there the notice of the survey could not create a title. The doctrine of notice is well established ; he who acquires a legal title, having notice of the prior equity of another, becomes a trustee for that other, to the extent of his equity; but if he has no equity, then there is nothing for which the purchaser of a legal estate can be the trustee. With respect to the opinion of the Court, as to the mode and the person by whom the notice was given, this could not affect the merits of the case. The survey not being barely irregular, where notice most affected, but void ab initio, in which case notice cannot in any way be material, or affect the conscience of any man.

Judgment affirmed.  