
    [Pittsburg,
    September 12, 1826.]
    RIDDLE against ALBERT.
    IN ERROR.
    in an ejectment for land west of the river Allegheny, claimed by the plaintiff under a warrant and survey, without settlement, the defendant has a right to show that the legal title has been granted to him by the commonwealth, without having - shown that he had taken out a vacating warrant, agreeably to the act of the 3rd •of April, 1792.
    Qwsre, Whether a vacating warrant he essential, where it appears that when the ■ settler was about to make his settlement, he was assured, upon inquiry of the deputy surveyor of the county, that there had been no prior appropriation of the 3and._
    On the return of a writ of error from the Court of Common Pleas of Butler county, it appeared that this was an ejectment, brought by Adam, Albert, the defendant in error, against the plaintiff in error, James Biddle, for two hundred and fourteen acres of land lying west of the river Allegheny, in Muddy Creek town-ship, in the said county. The plaintiff’s claim was founded upon a warrant in the name of Robert Elder, for four hundred acres of land, dated the 1st of March, 1794, on which a survey was made on the 28th of May, 1795, of three hundred and fourteen acres and twenty-five perches, embracing the land in controversy. The title of'the warrantee was regularly deduced to the plaintiff. No settlement had been made upon any part of this land, nór a patent obtained by the plaintiff, or those from whom his claim was derived. •
    
      The defendant claimed under an improvement commenced in the winter of 1798-9, by John Boon, continued in 1799 by Andrew Gilleland, and kept up by him and those who claimed under him, until the commencement of the action. It was further proved, that Andrew Gilleland had applied to the deputy surveyor of the county to have a survey, made, with a view to obtain an office title to the land. After diligent search among the documents in his possession, the deputy surveyor found, that although there was a warrant entered jn the name of Robert Elder, no survey upon it had been made. He therefore made the survey, and certified that Andrew Gilleland was living on the land, and that it was not appropriated' to any warrant. •
    The defendant then offered in evidence a warrant in his own name, dated the 25th of March, 1818, a survey thereon, dated the 13th of April, 1818, and a patent, dated the 13th of May, 1818. The plaintiff’s counsel objected to their being given in evidence. The court rejected the testimony, on the ground that the defendant had not taken out a vacating warrant; and the defendant’s counsel excepted to their opinion.
    The defendant again offered the same evidence, to show that he entered under a claim of title. But the court again rejected it, and another exception was,taken.
    The plaintiff, it appeared, had purchased, also, by articles of agreement, of one Shannon, who claimed under Gilleland.
    
    At the conclusion of the trial, the defendant’s counsel requested the court to charge the jury in the following manner:—
    “ 1. That the plaintiffs, having purchased under Andrew Gil-leland, cannot recover until the contract of sale is rescinded; and that by purchasing an adverse title, he cannot contest Gilleland title until he leaves the possession acquired under him.
    “ 2. That Gilleland’s possession, and actual settlement, for twenty-one years before the suit brought, give him a right under the act of limitations.
    
      “3. That while Albert lives on the land, his possession is the possession of Gilleland, and enures to his benefit against any adverse title.”
    Shaler, President, charged the jury, in relation to these points, as follows:—
    > <£ 1. If the jury find, that the plaintiff did purchase one hundred acres of land in the original survey, from the assignee of Andrew Gilleland, that will not bar his recovery of the rest of the tract, there being no dispute about the said hundred acres.
    
      “ 2. An adverse possession, in order to bar a recovery under the' statute of limitations, must be hostile in its inception, and continue so for twenty-one years. It must also be marked by definite boundaries. The statute of limitations will cease to be operative from the time the plaintiff took possession of the land adversely to the defendant; and if the jury find, that at any time during the twenty-one years, the plaintiff entered under his present title, the statute of limitations forms no bar to the plaintiff’s recovery. A mere entry to make a survey, is a sufficient entry to prevent the statute from running.
    “ 3. That as soon as Albert held adversely to Gilleland, provided the jury think there is evidence of his having so held adversely, his possession would not be the'possession of Gilleland, so as to entitle him to the benefit of the limitation.” ■
    To this opinion the counsel of the defendant excepted.
    . Fetterman and Baldwin, for the plaintiff in error.
    1. The warrant, survey, and patent offered by the plaintiff in error, ought to have been admitted in evidence. His case was very special in its character. Gilleland applied to the deputy surveyor, and was informed that the land was unappropriated. The warrantee had never made a settlement, and therefore the land was open to a vacating warrant; but the settler was excusable for not taking out a vacating warrant, because he could not know that a survey had been made under a prior warrant He did all he could, and, as he was in no fault, he ought to be considered as having actually taken out a vacating warrant. But the warrant and survey and patent, were evidence at least to show that the defendant below entered under colour of title, and might therefore protect himself under the act of limitations.
    2. The charge of the Court of Common Pleas was erroneous. After having made the purchase under Gilleland, Albert could not, by purchasing another title, stop the running of the act of limitations in favour of Gilleland. Albert's possession wás the possession of Gilleland, notwithstanding he purchased the title of Elder. Caufman v. The Cedar Spring Congregation, 6 Binn. 62: Smith's Lessee v. Stewart, 6 Johns. 34, 36, 10 Johns. 223, 292. 13 Johns. 116. Brown's Lessee v. Ayers, 14 Johns. 224. 18 Johns. 94. 11 Serg. & Rawle, 339. 4 Serg. & Rawle, 467. 5 Serg. & Rawle, 236.
    
      Ayres, for the defendant in error.
    ■ 1. When Gilleland entered to make a settlement, there was a' title in Robert Elder by warrant and survey. The warrant, survey, and patent of the defendant below were therefore against law, and void, and gave no colour of title. They, therefore, ought not to have gone to the jury. If they gave colour of title, it could only be from the date of the patent, which being less than twenty-one years from the commencement of the suit, no title could be'gained under the act of limitations. On this ground, also, these documents were properly rejected. Miller v. Shaw, 7 Serg. & Rawle, 129. Sheen v. Pearson, 7 Serg. & Rawle, 303.
    2. The charge was correct. The purchase of one hundred acres would not prevent the purchaser from' buying the residue of the tract from another person, whose title was adverse to that of the vendor of the one hundred acres. These one hundred acres were laid off by meles and bounds. Gilleland, before his survey in 1818, was a trespasser, and therefore his possession did not extend beyond his actual enclosures.
    3. The charge of the court, upon the second point submitted to them, w,as, that if the plaintiff entered under title adverse to Gil-leland, at any time within twenty-one years before suit brought, the act of limitations was not a bar. And the law is certainly so. The court meant an entry into the two hundred and fourteen acres which was the subject of the ejectment.
    4. If the opinion of the court on the third point related to the one hundred acres, concerning which there was no dispute, and for which the ejectment was not brought, it is wholly immaterial whether there is error in it or not, because it does not concern the present action. Pipher v.Lodge, 4 Serg. & Rawle, 315. The cases cited on the other side, to show that where one person comes in under another he shall not dispute his title, do not apply, because the plaintiff never entered under Gilleland, into the two hundred and fourteen acres, which is the only land in dispute.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an ejectment for two hundred and fourteen acres of land, lying west of the Allegheny river, brought by Mam Albert, the plaintiff below, against James Riddle, the plaintiff in error. The plaintiff claimed under a warrant for four hundred acres of land to Robert Elder, dated to March, 1794, on which a survey was made of three hundred and fourteen acres and eighty-five perches, including the land in dispute, on the 28th of May, 1795. A regular chain of title to this warrant and survey was deduced from the warrantee down to the plaintiff, but no part of the land had been settled, nor any patent obtained by the plaintiff, or those under whom he claimed.

The defendant gave in evidence a settlement, under which he made title, sometime in the year 1798 or 1799; and offered in evidence a warrant to himself, dated the 25th of March, 1818, a survey on the 13th of April, 1818, and a patent on the 13th of May, ISIS; to the evidence of which warrant, survey, and patent, the plaintiff objected, and the court rejected it. The defendant relied also on the act of limitations, and gave parole evidence in support of that defence. The reason for rejecting the defendant’s evidence was, that although the plaintiff had not complied with the terms of settlement imposed by the act of the 3d of April, 17.92, under which his warrant was issued, yet it was necessary for the defendant to take out a vacating warrant before he could affect the plaintiff’s title. Whether the defendant’s title would have been good, on the disclosure of all the circumstances of his case, is not now to be decided; but surely he had a right to show, that the legal title had been granted to him by the commonwealth. This has always been the course of proceeding, and, when all the evidence has been given on each side, it is for the court and jury to decide whether the legal estate granted by the patent shall yield to the equitable right of the adverse party. There was error, therefore, ir» rejecting the defendant’s evidence, for which the judgment must be reversed. I think it proper to suggest to the defendant’s counsel, that when the cause comes to trial again, it may be very material to produce the survey, which I presume was obtained by ¿¡dam Gilleland, under whom the defendant claims, when first he entered on the land for the purpose of making a settlement. It appears, from the evidence in this cause, that although the said ¿¡dam 'Gilleland made inquiry at the office of the deputy surveyor of the county, no information could be obtained of any warrant and survey, appropriating the land on which he was about to settle. On the contrary, the deputy surveyor assured him there had been no appropriation; and whether, under such circumstances, a vacating warrant was essential, is a point worthy of consideration.

The judgment is to be reversed, and a 'venire de novo awarded.  