
    Lessee of Evans against Nargong.
    
      1809. Sunbury, Tuesday, July 11.
    THIS was an appeal from the decision of RIDC May 1807. -®- ridge J. at a Circuit Court for Northumberland, in
    issul'ie lancl ; on the 5th. April 1774, for 300 acres in the name of A., upon which the purwaípticL Itwas surveyed in 1776 and°" the deputy surupon^hcTsurvey, that it was in Ji8 &[een 1778 B. was kilj^k^ndids house and pa-
    afterwards sold the property” of B., and up to ^ectmen^by16 the purchaser ^ ever61'" claimed A.’s that these cir-sufficient evi^ deuce, that B. of!/! ’s^arrant
    Where a surretaSed^nto office for D., is uudeHiis own application, C. make°any addition to the survey returned, without an order from the land office; and no private intention or action of his, can hinder the proprietaries from selling the adjoining land.to any person who may apply for it.
    , It was an ejectment for a tract of land in Northumberland county, which the plaintiff claimed under the following title:
    On the 5th April 1774, a warrant issued in the name of “ Ernest Burk, for 300 acres “ joining Dietrick Reese, “• Jacob Reese, Jonathan Pingley and William. Armstrong, “ in Buffaloe township Northumberland county,” which was a very accurate description of the premises in the ejectment; and on the 20th April 1774 the purchase money was paid tó the proprietaries.
    On the 11th and 13th March 1776, Hawkins Boon procured a survey to be made under this warrant, upon the land described, by Henderson the deputy surveyor, who upon a draught of the survey wrote the following memorandum, “ draught of a tract as situate in Whitedeer town_ “ ship, formerly Buffaloe, Northumberland county, surveyed, “in dispute between William. Armstrong and Hazukins “ Boon.”
    
    
      Hawkins Boon was killed by the Indians, and his house and papers burned, at the taking of Freeling’s fort on the Warrior’s run in the year 1778.
    _ _ < In November 1785, an action was instituted against the administrators of Boon, in which judgment was obtained for 178i. 4s. 10d.; a ji. fa. upon this judgment was levied upon the land in question, and under a venditioni exponas it was sold and conveyed by the sheriff on the 27th June 1797, to Evans the lessor of the plaintiff.
    _ _ The defendant’s title commenced with an application of the 3d April 1769, No. 711, in the name of William Armstrong, for 300 acres on the south side of the west branch of the Susquehannah, above and adjoining land applied for by 
      William Gill, including the mouth of a small run about six miles above the mouth of Buffaloe creek.
    In the year 1769, both before and after his application, Armstrong was making an improvement on the land, when a certain James Parr commenced an improvement upon the same tract, under an application of the 3d April 1769 in the name of Jonathan Pingley for 300 acres, which were surveyed in October 1769. A dispute took place be-teen Parr and Armstrong, and on the 4th April 1770, the latter entered a caveat in the land office against the acceptance of a survey for, or the grant of a patent to, Parr or any other person in right of Pingley, alleging that Pingley’s application -was executed elsewhere, and that the land last surveyed upon that application belonged to him by virtue of his application No. 711. On the 29th October 1770 the hearing on the caveat was postponed, and in 1771 Parr and Armstrong agreed to divide the land in front on the river, so that the former should,include his improvement, and Armstrong was to fill up his application by taking in land in the rear. This back land included the premises in controversy. Accordingly, when in the year 1773, one Henry settled down upon the land in question, Armstrong drove him off, and in March 1776, he caused a survey to be made upon his application by the deputy surveyor, and took in part of the land in dispute.
    On the 25th April 1794, Armstrong conveyed to Dale, under whom the defendant held, his application No. 711, and on the 4th May 1794, a survey was made for Dale, which extended the lines so as to include 320 acres, comprehending more of Boards survey. Dale also became the proprietor of Pingley’s application.
    The questions were two. 1. Whether Boon was the owner of Burk’s warrant. 2. Whether the title to the land in dispute had not vested in Armstrong, and by him been transa mitted to the defendant.
    For the plaihtiff it was said on the first point, that Boon’s ownership of the warrant to Burk was a matter of necessary inference. Boon directed and probably paid for the survey. It was Boon who disputed with Armstrong, and from that time to the trial no one had ever claimed the warrant in opposition to Boon. His death in 1778, and the destruction of his papers by fire, sufficiently accounted for the ' want of a written document; but his acts, and the silence of others, shewed that he either was the owner of the warrant, when it issued, having used Burk’s name, or he became the owner by purchase immediately after.
    On the second, point, it was remarked that in the year 1770 Armstrong claimed the survey made under Pingley’s application, and nothing more or less. According to his assertion, it was the land covered by his own application, and he therefore caveated the acceptance of the survey for Pingley. This was conclusive evidence to shew what was Armstrong’s-claim, and what his improvement in 1769 extended to. His agreement with Parr was a private matter between the two, and could affect no one else. Before Armstrong extended his lines so as to take in the back land, Burk’s warrant of 5th April 1774 called expressly for it, and therefore bound it from its date; and the proprietaries, knowing officially that Armstrong claimed other land, had a perfect right to grant the warrant. Boon having followed up the warrant by a survey in 1776, did not lose his priority, and therefore the plaintiff was entitled to recover.
    On behalf of the defendant it was contended, that no right to Burk’s warrant being established in Boon, was of itself fatal to the plaintiff’s claim. This being a warrant upon which the purchase money was paid, stronger proof should be required of a conveyance, than in the case of a location; and there was no proof of any kind. The fire might afford presumption of the loss of a deed, if its former existence had been shewn; but to take it as evidence of loss in this case, was to argue both the destruction and existence of the deed from tire same accident. Boon’s superintendence of the survey was as much the act of an agent, as of a principal.
    The answer to the plaintiff’s second ground, was that Armstrong had an improvement on the land in 1769, that' in 1770 he claimed the premises under his improvement, and that in 1773 he turned-off a man who had settled upon the land in dispute, because it was within his claim of 300 acres. Burk’s warrant adjoined lands of Pingley and Armstrong; therefore the only question was, what did Pingley and Arm
      
      strong claim on the 5th April 1774, the date of that warrant? Now, it was most evident, that one of them claimed the land in dispute, and had exercised an act of ownership, by turning off a settler. If the plaintiff succeeded, neither Armstrong’s nor Pingley’s survey would include the 300 acres, to which they were respectively entitled.
    His Honour charged the jury, that in his opinion, there was sufficient in. the fact of Boon’s directing the, survey, in his disputing the right with Armstrong, in the destruction of his house and papers, and in the non-claim of any person under Burk except Boon, to justify a presumption that Burk had conveyed to Boon, or that the warrant was taken out by Boon in the name of Burk. He therefore thought the plaintiff ought to recover; for if Armstrong by his earlier application and residence had a priority, still if by determining his claim on any side, he led another to take an office right for, or even to settle on that side, that other ought not to be disturbed.
    The jury found for the defendant. A motion was made for a new trial, which was overruled with a view to take the opinion of this court; and accordingly the case was now argued upon appeal, by Huston and Watts for the, plaintiff, and by-Hall and Duncan for the defendant, upon the points made below.
   Tirghman C. J.

after stating the facts, delivered the opinion of the Court. Upon the trial of this pause, two questions arose. 1. Whether Boon was the owner of Burk’s warrant. 2. Supposing he was, whether he was entitled to the land in dispute. As to the first, without discussing the testimony, we think it sufficient to express our opinion that under all the circumstances of this case, there was satisfactory evidence of Boon’s being the owner of Burk’s warrant. On the second point, it appears to us that the plaintiff made a very strong case. It was to be seen on the records of the land office that Armstrong claimed a survey made and returned for Phigley, and that he claimed nothing else. In this situation, Armstrong had no right to make any addition to the survey returned into the land office, without an order from the land office; and no private, intention or action of his, could hinder the proprietaries from selling the adjoining land to any .person who might apply for it. ,We consider the law on this point to be settled; and if it were otherwise, it would be productive of great confusion, and great injustice. On what ground the jury formed their verdict, does not appear. But the judge before whom the cause was tried was not satisfied with the verdict, although in order to take the opinion of this court on a point of law which he thought of importance, he overruled the motion for a new trial. Our opinion is, that a new trial should be granted.

New trial granted.  