
    M‘Coy against The Trustees of Dickinson College.
    In Error.
    
      June.
    
    
      A title by “Slit out patent, is ofiimitations barred by an 3esItonof°S" veáis7"0*16
    ERROR to the Court of Common Pleas of Northumterland county,
    The Trustees of Dickinson College, the plaintiffs in this claimed under an application entered in the land office the 3d April, 1769, and a survey executed the 9th July, 1772, and returned the 28th August, 1772. The land had not been patented. When the plaintiffs had finished their evidence, the defendant offered to prove a possession in himself and those under whom he claimed, adverse to the plaintiffs, from the year 1787 to the commencement of this suit. This evidence was objected to by the plaintiffs, and rejected by the Court. An exception to the opinion of the Court was taken by the defendant, and whether the evidence was legal was now the question.
    
      
      Marr and Huston, for the plaintiff in error.
    There is nothing in England which resembles our title by warrant and survey, by location and survey, or by settlement, without patent. Nothing, therefore, can be deduced from the law England, applicable to this case. Our act of assembly of 26th March, lf8.'j, which was intended to apply to such estates as exist in Pennsylvania, declares, that no person shall maintain any writ of right, or any other real or possessory writ, or action for any manor, lands, &c..of the seisin or possession of him, her, or ■ themselves, his, her, or then-ancestors, or predecessors, nor declare or allege any other seisin or possession of him, her, or themselves, his, her, or their ancestors, or predecessors, than within twenty-one years next before such writ, action, or suit, so hereafter to be sued, commenced, or brought. When this law was passed, the nature of these equitable estates was perfectly understood by the legislature. Whatever might have been the law prior to that period, it was then universally known, that an estate held by warrant and survey, had (saving the paramount title of the Commonwealth,) all the features of a legal estate; that it would descend; that it was subject to dower and curtesy, and might be recovered in ejectment. It would be absurd then to suppose, that the legislature intended to confine the operation of the act of limitations to the estates of those who had paid their purchase money and obtained a patent, and to protect the imperfect titles of those who had been in default. It Is not contended, that the act of limitations was intended to reach the Commonwealth ; but hér rights may be protected without excluding unpatented lands from the provisions of the act. The act of limitations operates as a transfer of the plaintiff’s title to the defendant, who has been in possession twenty-one years, and the Commonwealth has the same remedy for the recovery of the purchase money against the person in possession, as against him who was originally answerable for it, according to the price at which public lands were sold at the time he entered. No two things can be more unlike than the present case, and that of Morris v. Thomas. There the question in substance was between the Commonwealth and a person who had made no settlement, nor had done any thing by which an inception of title was vested in him. The case goes no further than to decide, that under such circumstances, the Commonwealth may sell the land to another person, and that the purchaser shall not be affected by the unlawful possession which had taken place before he received the grant.
    Hepburn, Hall, and Watts, for the defendants in error.
    Before the defendant below excepted to the Court’s opinion rejecting the evidence which he offered of possession, he ought to have stated the nature and extent of the possession he intended to prove, for nothing but an actual occupancy, a definite, positive, notorious possession, will prevent a recovery in ejectment. Jackson v. Schoonmaker.
      
       The Commonwealth stands in the place of the proprietaries, she retains the legal title, subject to an obligation to convey to the defendants in error, on their payment of the purchase money and interest, according to the terms of the original agreement; and against the Commonwealth it has been decided in all the states, acts of limitations do not run. Tasker’s lessee v. Whittington.
      
       If the defendants in error, who are the grantees of the Commonwealth, and for whom the Commonwealth is a trustee, are barred by the act of limitations, the Commonwealth is substantially barred also; because the contract between her and the defendants in error, will be destroyed, and she will lose the purchase money; or at least she cannot recover interest beyond the time when the plaintiff in error entered on the land ; but if the act of limitations be not a bar, the original contract is kept, and the defendants in error can only obtain a patent on the payment of the whole of the purchase money and interest. By settlement, the plaintiff in error could acquire no title, because the land had been surveyed for the defendants in error, before his entry; and a defendant is not allowed to give evidence of improvement and settlement after the return of the plaintiff’s survey. Pigou v. Nevill. But the case of Morris v. Thomas,
      
       in which it was decided, that the act of limitations is no bar to the Commonwealth or her grantee, seems to put the question to rest.
    
      
       2 Sm. ft. 299.
    
    
      
      
         5 J3inn.gr.
      
    
    
      
       2 Johns. Hep. 230.
    
    
      
      
         1 Ear. & M‘Een. 151.
    
    
      
       2 Sm. L. 180.
    
    
      
      
         ) 5 Binn. 77\
      
    
   The opinion of the Court was delivered by

Tilghman C. J.

By the act for the limitation of actions, passed the 26th March, 1785, no person shall hav.e or maintain any real or possessory writ or action, for any lands, tenements, or hereditaments, of the seisin or possession of himself, or his ancestors or predecessors, nor dédare or allege any other seisin or possession • of himself, his ancestors or predecessors, than within 21 years next before such writ or action, hereafter to be sued, commenced, or brought. The evidence offered by the defendant went directly to prove, that neither the plaintiffs nor the persons under whom they derived title had been in possession for more than 21 years before the commencement of the suit. Why then was it not legal evidence ? Because, say the plaintiffs, the land not having been patented, the legal title remained in the Commonwealth, and the Commonwealth not being bound by the act of limitations, neither are those persons bound who-hold the land under the Commonwealth. This is a question of very great importance, hitherto undecided ; and in order to judge of it, we must consider the nature of a title by warrant, or application and survey, without patent. In Pennsylvania, lands to a very great amount are held by such titles, and if they are excepted from the operation of the act of limitations, no inconsiderable portion of the state will be left exposed to that uncertainty, which it was the object of the act to prevent. It was the custom of the proprietaries of Pennsylvania, from ancient times down to the revolution, to contract for the sale of lands, in various modes, and to deliver possession, without receipt of the purchase money. But in such case, no patent was issued; consequently they retained the legal title. The title of the purchasers was sui generis, unknown to the law of England, and at first, not well defined by our own law. Until towards the year 1760, rights of this kind were considered as personal property. About that time, (I will not undertake to fix the period,) they assumed a more important character, and were considered as real estate; and it is certain, that at least from the year 1760, a title by warrant and survey has had all the principal attributes of a legal estate, saving the right of the proprietaries and of the Commonwealth who succeeded to them. It will support an ejectment, it descends as real estate, it is to be conveyed as real estate, it is subject to the rights of dower, and tenancy by the curtesy. It has been recognised as real estate by acts of assembly; at the time of the passing of the act of limitations, it was perfectly understood by the legislature, and must have been intended, without doubt, to be comprehended in that act, in such manner as not to impair the right of the Commonwealth. Until the patent issues, the legal title is in the Commonwealth, and the act of limitátion ilas no f°rce against the Commonwealth. Even without having recourse to the pre-eminent rights which exempt the supreme power of the nation from the operation of statutes in which it is not expressly named, it is evident, from the nature of the case, that the possession of those persons, who hold unpatented lands, is not adverse to the Commonwealth. On the contrary, the nature of the contract, and the custom of the country prove, that the possession is under and with the consent of the Commonwealth. But as to all private persons, the case is different, and it would be attended with incalculable mischief, if the undisturbed possession for 21 years should confer title and safety on the holders of patented lands, but be of no avail where there is no patent, The words of the act of limitations embrace both cases, nor is the least trace of distinction between them, to be found in that act. As to the right of the state, it is the duty of the Court to protect it, without extending their protection to others, who stand in different circumstances, and who cannot be. protected without throwing the country into confusion. It is to no purpose to cite cases upon the British statute of limitations ; they are inapplicable, because England has no species of property, like our right under warrant and survey. I have said, that this point has never been decided in Pennsylvania. The plaintiff’s counsel seem to think that it has been, and cite the case of Morris v. Thomas, 5 Binn. 77. But an examination of that case will soon shew, how different it is from the present. The plaintiff, (Morris,) claimed under a warrant dated the 3d April, 1750, and a survey by virtue of that warrant, made 31st December, 1805. But it is to be noted, that the warrant was indescriptive, so that no title to the surveyed land, attached till the execution of the survey. The defendants claimed under an improvement in 1783, unaccompanied with a settlement or any other circumstance, which would be the commencement of an equitable title under our laws. In fact, the defendants being possessed of an adjoining tract of land, did no more than go over their lines, and cut wood on the vacant land of the Commonwealth, Against the Commonwealth then, there was no possession on which the act of limitations could operate; neither could it operate as a bar to the plaintiff, (Tfefom'i,) because his title to the land in dispute commenced only on the 81st December, 1805, which was but three or four years before commencement of the suit. But if Morris’s survey had been executed in the year 1750, soon after the date of the warrant, the law would have adjudged him to be in possession, at least, from the return of survey, and when once in possession, his title' would have been of that kind, upon which the statute of limitations might operate. In the case before us, the s.urvey was returned the 28th August, 1772, and from that time the estate was subject to the act of limitations, saving the right of the Commonwealth. I am very clear, therefore, that the defendant’s evidence ought to have been received. At the same time, I desire it to be distinctly understood, that I give no opinion, nor have I formed any opinion beyond the point immediately decided. The defendants’ evidence ought to be received; but what will be the consequence of possession taken without title, as to the extent of the possession; or whether such possession will in law be extended beyond the actual inclosures of the occupant, is a question not now before us. The consequences of laying down general principles on the act of limitations are so important, that I hold it my duty to be extremely cautious' of intimating any opinion on points out of the record. Being satisfied, that there is error appearing in this record, I am of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Duncan J.

having been of counsel with the defendants in error, did not sit in the cause.

Judgment reversed, and a venire facias de novo awarded.  