
    Bryson against Hower.
    where the ^ request of the owner of an application an.l survey, issued an er-re-sureas. pertaining ’how far the tract was in-b^othcfr'surTeys belong-same mdivivejor, either °r it was held,! ^Towner was one who soon after the mistake was made, applied a warrant to the same land, and five years afterwards obtained a patf nt, although tht iv-.sm v<,j was returned to the land office, in rath-r more than six months after it was made, and no objection appeared to have been made, either to the re-survey, orto the adverse* survey and patent,
    In ERROR.
    WRIT of error to the Common Pleas of Nort-hurnberland county, in which the opinion of the Court, filed at the request of the counsel for the defendant, accompanied the , record.
    , The action in the Court below, was an ejectment for acres seventy-seven perches of land. The plaintiff, John Hower, was the owner of three contiguous tracts of land, . surveyed on applications of 3d Aprtl, 1769, in the names of Thomas Foster, Robert Jewell, and John Sprogel. Sprogel's survey included the land in dispute, and that oí Foster lapped over the other two. Being desirous ot ascertaining the interferences and designating the land surveyed on Jewell's and Sprogel's applications, which had been included in the patent granted on Foster's survey, so as to enable him to those two tracts without paying again for the land he already paid for, the plaintiff'on the 20th May, 1794, ob - tained from the Board of Property, a special order requiring the Surveyor General to re-survey, or cause to be the said tracts of land, and to make return of so much thereof, as was not comprehended in, and did not interfere with the patented tract, in order that a patent or patents might issue therefor. The deputy surveyor of the district executed this order on the 2d May, 1810, and by mistaké left out the land in dispute. The re-survey was returned on the 9th November, 1810.
    The defendant founded his claim upon a warrant to John Montgomery, dated 16th January, 1794, for fifteen acres of land, adjoining John Montgomery, deceased, on the south, and James Galloway on the north, on which he had survey made on the 19th June, 1810, of the land in controversy. On the 10th December, 1813, Montgomery conveyed to the defendant, who on the 7th of the same month, purchased the possessory right of Jacob Zeigler, and on the 10th January, 1815,, the defendant obtained a patent.
    The counsel for the defendant took several exceptions to the opinion of the Court, as well in their general charge to the jury, as in their answers to several questions proposed for their decision ; but the only one relied upon in the argument in this Court was, an alleged error in instructing the jury to the following effect: — “ That if the land in dispute was left out of the re-survey, with the knowledge and consent of the plaintiff, and he suffered another to lay his warrant upon it, he would be postponed ; but if it was excluded by the mistake of the deputy surveyor, the mistake might be corrected, and the plaintiff might recover, notwithstanding a return was made. If, however, he discovered the mistake, and afterwards suffered the return to be made, he would be postponed.”
    
      Bradford and Fisher, for the plaintiff in error.
    The merits of this case depend upon the question, whether the negligence of the plaintiff below has not been such as to protect the defendant ? He laid his warrant upon land left out of the plaintiff’s re-survey, and after the expiration of five years, obtained a patent for it, no objection having been made in the land office, either to his own re-survey, or to defendant’s survey and patent. It must be presumed that he was acquainted with the act of the deputy surveyor by which it was excluded, and if he was dissatisfied with it, he should have complained without delay, instead of waiting until the interests of third persons were involved. His title to this portion of the land, under his original application and survey, must therefore be considered as abandoned. Hunter v. Measan, 4 Yeates, 107. Miles v. Potter, 2 Binn. 69. Addleman v. Way, 4 Yeates, 218. 2 Serg. & Rawle, 398. A deed will not be rectified in equity to the prejudice of a purchaser without notice, Sugden, 119. 479, in which light the defendant must be regarded, who relied upon the re-survey returned into the land office. After a survey has been returned, the lines cannot be altered by the deputy surveyor, to the injury of a third person, on the ground of a mistake in the survey. Healy v. Moul, 5 Serg. & Rawle, 181. Norf on the same principle, can an alleged mistake iñ a re-survey made at the request of the party, be rectified at the expense of one whose interest has been fairly acquired, with no want of prudence on his part.
    The Court declined hearing Hepburn and Greenough, who were prepared to argue for the defendant in error.
   The opinion of the Court was delivered by

Duncan J.

The counsel for the plaintiff in error, did not urge any other exception to the charge, than the supposed misdirection of the Court in instructing the jury, that if this land was left out of HowePs re-survey, by mistake of the deputy surveyor, without the knowledge or consent of the plaintiff, this would not postpone him to the defendant, who had patented on the confidence of HowePs exclusion in the re-survey. It is impossible to examine the original surveys of Sprogel, Foster, and Jewell, and attend to the directions of the Board of Property for the re-survey, and compare it with the original survey of Sprogel, without the most complete satisfaction that Hower never did intend to leave out one foot of the land which he had bought and paid for ; for he had paid for more land than the three surveys contained. The land was valuable, and had been surveyed forty years before. It is not usual for the Board of Property, nor have they any legal authority, to direct land to be excluded out of surveys already returned, unless it interferes with some other survey, or contains a surplus. The owner must patent the whole or none. It it impossible to read the order, and misunderstand it. It is demonstrative that the re-survey was the mistake of the deputy. We need not any corroborating testimony to confirm this fact. We are not to impute any design. It matters not however whether it was by mistake or design of the deputy ; it is very certain, that it was soon discovered, and the defunct warrant of John Montgomery, in less than two months slipped in, and this small piece of land snapped up, and that before the re-survey was returned. I do not see in this, any strong equity in Mr. Montgomery’s favour. It was, to say the best of it, a lucky hit, and though it cannot be said to be a fraud, yet it possesses no claims to the regard or favour of a Court of Equity. I do not impute any improper design to any one, and am very far from imputing to the plaintiff in error, a design to avail himself of the mistake of the defendant; yet the papers in the land office, the original returns of survey, compared with the order for the resurvey, and the re-survey itself, would, on their face, shew the mistake, and these were notice to him ; for the return of the re-survey describes it, as including all Sprogel’s original survey, bounding it on that side as the original is bounded, and not marking any land as vacant. There was no authority given to the deputy surveyor, to throw out any of Sprogel’s survey. The direction was to comprehend it all, and return it all, and mark the interference with Foster’s survey, with a single and an expressed view, to enable Hower to patent all that had not before been patented on Foster’s survey. The very return of the re-survey under which the plaintiff protects himself as a purchaser without notice, gives him notice, notice at least sufficient to put him on inquiry. Sprogel’s original return was not withdrawn from the files of the Surveyor-General; it was not vacated by the order of re-survey, or by its return. The authority under which it was made, forbids this conclusion, and the return excludes the conclusion ; for it purports to be the same as the original survey; the very same boundaries, and only casts off that which was ordered to be cast off, the interference with Foster. It is most charitable to suppose it to have been done by the mistake of the deputy. It is not fair to impute it to design, because that would not only be a violation of the order of the Board of Property, but a deceit on Hower. If it was done by design of the deputy, without the knowledge of Hower, it would not better the case of the plaintiff in error, but cast a suspicion on his title, when it is considered how soon after the mistake was discovered, and Montgomery's warrant applied to it by the same deputy. Had Hower taken any step to confirm the mistake, to ratify the omission by any solemn recognition, as by patent, and a stranger in confidence of this had taken out a warrant, obtained a survey and patent, and the plaintiff purchased from that stranger, it would be difficult to maintain that Hower could turn back to his original survey. But Hoxver has done nothing; and the plaintiffs case would be very different, had Hower encouraged him to purchase from Montgomery, for that would have postponed him. But there is no evidence of this. The cause of the parties, on its real merits, was fairly submitted to the jury ; for the important inquiry for the jury was accurately stated by the Court. It was, whether the tract in dispute was excluded, with the knowledge and consent of Hower, or was done by the mistake of the surveyor ; and the return of the re-survey irrefragably proved it was done by mistake of the deputy. Design is not to be imputed to him without some evidence ; and if there was evidence of it, it was an unauthorised and a void act. The consent and knowledge of Hower, are not to be presumed. It would be a presumption against all reason, experience, and probability, that a man possessed of reason and understanding, should throw out of his survey any, the smallest portion of land, in a country so thickly settled, and so highly improved as this section of Northumberland county, and that too where the object of having his lands re-surveyed is so clearly marked out, as it is in the order of re-survey. The order of re-survey and the re-survey, were mere preparatory measures to taking out the patent, and did not prevent Hower from rectifying the mistake when he came to patent.

Judgment affirmed.  