
    Humes against M'Farlane and another.
    In Error.
    WRIT of error to Cumberland county,
    
      Monday, October 5.
    
    
      John and Alexander M'-Farlane, the plaintiffs below, claimed the land for which this ejectment was brought, under warrant granted to their father, John M'Farlane deceased, ° ' J . on the 3d April, 1800, for 200 acres, including an improvexnent, adjoining lands of Samuel M'-Cormick, James M'Far-lane, George Buck, and Daniel M'Daniel, in Mifflin township; interest to commence on the 1st March, 1770. this warrant a survey was made on the 9th April, 1800. On the 2d September, 1813, John M'Farlane made his testament and last will, containing the following devise, under which it was contended,the land in question passed to the plaintiffs,
    “ I also give and bequeath to my sons,, John and Alexan-. der, all that my messuage or tenement whereon I now live, situate, lying, and being in Mifflin township, county of Cumberland, and state of Pennsylvania, together with all and singuiar the appurtenances thereunto belonging, to hold to them, and their heirs or assigns forever, to be divided among them • ° , , r . . . according to an instrument drawn before, and now in the hands of the heirs of Daniel M'Daniel deceased.”
    When a Rfers'toan improvement, ana mentions a particular wiocRinterest ¡s tobe paid “he*' warrantee to provementon ^maygive evidence of ment at any prior to the warrantfthe
    A warrantee cannot give evidence of an improvement made at any* time prior to. in his J^fcom-0^ mencement of where the pertyhavedecided, on a e(j against the acceptance of made on his his'tMe'u'igiby anot er person, at an earlier period, and have directed a patent to issue to him, in virtue of that settl ment^ If counsel request the Court to instruct the jury on a material point* and they omit to dos >* it is
    The defendant derived his title from a warrant to James M'Farlane, dated the 16th December, 1799, for 40 acres, joining lands of Daniel M'Daniél, George Buck and others, in Mifflin township; interest to commence on the 1st Decernher, .1779. A survey was also made on the 9th April, 1800, in pursuance of this warrant, of 44 acres. '
    
      James M'-Farlane was the father of John, and the grandfather of the plaintiffs, and the 44 acres surveyed on. his. warrant were included in the 20Q acres, for which his son John obtained a warrant. The old man claimed under a settlement made by one Alexander M'-Clintock in the year 1766, and on a caveat entered by John against the acceptance of the survey made on his father’s warrant, the board o( pro» perty decided, that the land was held under that settlement, and directed a patent to be issued to him in virtue of it, as of the year 1766. The defendant alleged and endeavoured to prove, that James M'-Farlane had given his son John, all his right under this settlement, except the said 44 acres, which he reserved to himself. On the other hand, the plaintiffs, the grand-children of James, averred and endeavoured to prove, that their father, John M'-Farlane, was himself settled on the tract containing 200 acres, to the whole of which, including the 44 acres in dispute, he was entitled in exclusion of his father. Both parties gave evidence in support of their respective pretensions, and the evidence was contradictory.
    It appeared, that Samuel Mitchell, to whom James M'-Far-lane had conveyed his title, and who subsequently conveyed it to the defendant, had in the year 1808, recovered the land in an ejectment brought against John M'-Farlane.
    
    The counsel for the defendant requested the Court to instruct the jury on the following points.
    1st. “ That if the jury should be of opinion from the testimony, that John M'-Farlane, the son, occupied the 44 acres in dispute, under th® acknowledged right of the father, and lines were made dividing their rights, that then the possession of John, was the continued possession of James, and that James might take a warrant for the 44 acres, within the division line, in his own name ; and that if John took a warrant for the whole land, he would be a trustee for James aS to .the 44 acres, and chancery would compel him to convey to James, or to his alienee.
    2d. “ That by the will of John M'-Farlane there was no title given to the land in dispute, as the testator had been dispossessed of it, four years before the date of the devise.”
    ■ The Court, after briefly stating the titles of the parties respectively, expressed themselves in their charge to the jury, in the following manner.
    “ Both plaintiffs and defendant claim under warrants founded pn improvements, and on this point the law is well settled, that a warrant holder, claiming under an improvement, precludes himself from deriving his equitable title of improvement, beyond the day called for in his warrant. The plaintiffs cannot found their title on any improvement made previously to the 1st March, 1770, nor the defendant previously to the 1st December, 1779.
    
    “ One point made then, is, which of the warrant holders first made such an improvement on the 44 acres in question* , . .... ... r as the law requires, to entitle him to the right or pre-emption; that is, to give him a right to have the title perfected by the State, by a warrant and patent.
    
      “ The settlement defined by the act of 1786, is an actual, personal resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family. And the law of 1794, declares, that no application shall be received, except for such lands whereon a settlement has been made, grain raised, and a person, or persons residing.
    “ Both parties have given evidence respecting improvement and possession.” [Here his honour reviewed the evidence.]
    “ If the defendant has given no proof of any improvement, or settlement on the land in question, by those under whom he claims, on the 1st December, I779,then the warrant, which is founded on an alleged improvement, would be of no avail to him, and would vest no title to the land in dispute, or any part of it. If, on the other hand, you are of opinion that a settlement was made by John M1-Far lane, on the 1st March, 1770, agreeably to law, and continued from that time to the date of his warrant, he would be entitled to recover.
    “ But it is alleged on the part of the defendant, that on the 1st December, 1779, such a settlement was made by fames M‘Farlane, as is contemplated by the law, and was continued by him, placing his son as his tenant on the land, with whom he afterwards resided ; that the land in question ■was comprehended within the settlement; that he gave his son a part, and reserved the residue, which included the 44 acres, to himself.
    “ In this case, the settlement first made by James MiFarlane, if made in the time mentioned in his warrant, would extend as well to the 44 acres, as to the part of the land given to John M1-Far lane, and would-protect his right. But no claim of the kind can go further back than the 1st December, .1779.”
    The verdict was for the plaintiffs, and the defendant took a writ of error.
    
      
      Parker and Watts, for the plaintiff in error,
    admitted the rule generally to be, that a man shall not be permitted to take of an improvement made before the time designated in his warrant for the commencement of interest, but denied that it was universal, and insisted, that this case formed on 0bvj0US exception to it, springing out of the source from which the rule itself issued. The reason upon which all those cases proceed, which are relied upon to establish that position, is, that if the warrantee were not estopped by his averment, he would derive an advantage from'his own misconduct, and commit a fraud upon the Commonwealtin That reason, however, did not apply in the present instance. By the decision of the board of property, James MiFarlane was to receive a patent, in virtue of M'-ClintocPs settlement in 1766, and interest was to be paid from that period. There was therefore no fraud upon the Commonwealth, who had received all they could be entitled to, and consequently there could be no reason, why the defendant below should not have .been permitted to prove his improvement so far back as 1766. Having been compelled to account for interest from that time, it would indeed be hard and unjust if he could derive ■no advantage from it.
    In the second place they contended, that the omission to . give a full, clear, and distinct answer to the first question proposed by the defendant below, and the statement of a position, unfounded in law, in the answer which was given, were error. . No answer whatever was given to the question, whether, if John M‘Far lane was the tenant of his father, of the land in dispute, he was not his trustee for the 44 acres which he had included in his own warrant. This was an important question, on which the. jury ought to have been in- . structed. Nor was the answer, imperfect as it was, correct in point of law. To say, that if no settlement was made on the 1st December, 1779, the warrant, was void, was a position incapable of being supported; for though -there was good reason in ordinary cases, for excluding evidence of an -improvement before the time pointed out by the warrant for the payment of interest, yet there was none why evidence .should not be given, of one made subsequent to the time to which the warrant referred, but prior to the issuing of the warrant. There was neither reason nor authority to -give colour to such an idea. Indeed the subject did not afford room for argument.
    
      In the last place, they complained thatno answer wás giveir as to the validity of the devise contained in the will of John M1- Far lane, which they insisted vested no interest in the disputed land in his sons, the plaintiffs below. The devise was of the messuage and tenement on which he then lived, with ° __ ,. , , . ill. the appurtenances. He did not then, reside on the land in controversy, having been dispossessed of it four years before, by a verdict and judgment in ejectment. It is impossible, therefore, that the land of which he had been thus legally dispossessed,- could be considered as appurtenant to that on which1 he resided. But whatever might be the construction-of the law on this devise, the defendant was entitled to ah answer to the question proposed, and it was error not to give it. .
    - Carothers, for the defendants in error,
    answered, that the law had been long and well settled, that a warrantee is es-topped from carrying back his improvement beyond the time mentioned in the warrant for the commencement of interest. This was placed beyond a doubt, by the cases of Car-' rol v. Andrews.
      
       Merchant v. Millison.
      
       and .Reigart T. Haversto.ck.
      
       In the last of these cases, the rulé was declared not only to be applicable to a plaintiff seeking to recover possession, and who must rely upon the strength of his own title, but to a defendant also, who it was declared cannot be permitted to shelter himself under an improvement made at an earlier peripd than that mentioned in his warrant.; Nor was .there any room for the alleged distinction founded on the decision of the board of property, who had no power to alter, vary, or suspend an established rule of property, or to introduce. a new one. The truth of this argument, is exemplified by the case of Bixler v. Baker,
      
       in which, though the plaintiff had obtained, a patent for land surveyed under a warrant issued after the 22d September, 1794, his title was obliged to give way to a settlement made by another person subsequent to the warrant, but before the patent, because there was no personal resident settlement on the land,-when the warrant issued.
    . With respect- to the second point, he contended, that the Court had given a- sufficient answer to. the defendant’s question. After stating the question, they leave to the jury this decision of the fact, whether or not the first settlement was made by James M'-Farlane, and consequently, whether John was on the land as his tenant; and then proceed to inform them, that if James’s settlement was made at the time mentioned in the warrant, it would protect his right. This was substantially telling them, that if John was the tenant of his father, he was to be viewed in the light of a trustee.
    On the last point he observed, that although the Court below did not profess to give a distinct and separate answer to the second question submitted to their decision, they had in effect, given a complete one. “ If,” says the Judge, “ you are of opinion, that a settlement was made by John M(Far-lane, on the 1st March, 1770, agreeably to law,, and continued from that time to the date of his warrant, he would be entitled to recover.” Now, as the plaintiffs below derive their title through the devise of their fáther John, a declaration that they would be entitled to recover, provided their father’s settlement were made at a particular time, agreeably to law, clearly amounts to the expression of an opinion as to the validity of the devise; because, unless the estate passed by the devise, they could not recover. But supposing no answer whatever to have been given, it was not error, because the answer must have been against the defendant below. The circumstance of the devisor being out of possession, would not prevent the vesting of the devise. The rule which in England requires seisin, to give effect to the alienation of real estate, originated in feudal principles, which never had an existence in Pennsylvania, and the rule of law on this subject, which is the offspring of that system, never prevailed here. The point was made, in relation to a transfer by deed, in the case of Stoever v. Whitman,
      
       and it was decided, that the want of possession in the grantor, did not affect the validity of the conveyance. The words <f messuage or tenement wherein I now dwell, with the appurtenances,” are sufficiently descriptive of the land in question. It was embraced in the warrant, by which he held the tract on which he resided; and though he was then out of possession; he still kept up his claim to it. It was therefore appurtenant to the rest of the property, although he was not in the actual enjoyment of it. A devise of a particular house in which W, Ñ, dwelleth, without mentioning the appurtenances, was held to pass what properly formed part of the establishment, though only a part of the premises were occupied by W. N. Chamberlain v. Tur tier.
      
    
    
      
       2 Sm. h. 177. S reales, 59. S. C.'
    
    
      
       2 Sm. L, 178. 3 Teates, 73> S.C»
    
    
      
       2 Sm. L. 178. 3 Teates, 591.
    
    
      
      
         i-Mnn. 318.
    
    
      
      
         6 Minn, 416.
    
    
      
      
         4 Cruise on Heal Property, 188. Cro. Car. 129.
      
    
   Tilghman C. J.

After stating the case, delivered the opinion of the Court, as follows:—The counsel for the defendant, prayed the Court to direct the jury, to the following effect.

1st. That if the jury should be of opinion, that John M'-Farlane, the son, occupied the 44 acres in dispute, under the acknowledged right of his father, and that lines were run, dividing the said 44 acres from the rest of the tract; then the possession of the son, was the possession of the father, who might take a warrant for the said 44 acres in his own name; or, in case the son took a warrant for the whole 200 acres, he would be a trustee for his father, as to the said 44 acres. To this, the Court answered, “ that if such a settlement was made by the father on the 1st December, 1779, as is directed by law, and his son was placed by him on the land, as his tenant, and if the land in question was comprehended within the said settlement, and if, added to this, he gave his son part of the said settlement, and reserved to himself part, including the said 44 acres, in such case, the settlement first made by the father, would extend as well to the 44 acres, as to the part given to the son, and would protect the right of the father.” I do not think, that this answer is so direct as to inform the jury distinctly, what was the Court’s opinion on the questions proposed; and in one respect, there appears to be an error. I mean in that part of the opinion, which supposes, that in order to vest in James M'-Far-lane, a right under his warrant, it was necessary that his settlement should have been in existence on the 1st December, 1779, the day from which he was to pay interest on the purchase money, according to his warrant. I should be at a loss to determine, whether that was really the meaning of the Court, were it not for another part of the Judge’s charge, in which the same sentiment is clearly expressed. These are his words, “ If the defendant has given no proof of any improvement or settlement on the land in question, by those under whom he claimed, on the lsi December, 1779, then the warrant, which is founded on an alleged improvement, would be of no avail to him, and would vest no title to the land in dispute, or any part of it.” Now it is very clear, that if the defendant proved a settlement at any time, ■before the date of James MlFarlane’.s warrant, although subsequent to the 1st December, 1779, the warrant would be valid, and the land surveyed under it," would-be the estate of James M Far lane, unless there had been a prior appropriation of it by some other person. ' The 1st of December, 1779, was the time mentioned on the warrant, from which interest was to commence; and if the settlement were really made after that day, the Commonwealth would be the gainer, by receiving more interest than the warrantee ought to have paid. All which the law requires, is, that a settlement should actually be made before the issuing of the warrant. At what time it was made, is immaterial, except for the purposes of ascertaining the time, when the calculation of interest is to commence. I agree with the Judge, in another part of his charge which has been complained of, viz. that neither plaintiff nor defendant, should be permitted to allege' a settlement at anytime prior to the day mentioned in their warrants^ for the commencement of interest, because such allegation would be cbntrary to the averment in their warrants, and would shew that they had attempted to defraud the Commonwealth. This principle has been so well established, that.it must not now be disturbed. For- decisions directly in point, I refer to the cases of Carrol’s lessee v. Andrews. 2 Sm. L. 177. Merchant’s lessee v. Millison, 2 Sm. L. 178, and Reigart’s lessee v. Haverstock, &c. 2 Sm. L. 178. The counsel for'the defendant,- have endeavoured to. shew, that this case does not fall within the general principle, because the board of property-decided, on a caveat entered by John McRarlane, against the acceptance of the survey on his father’s warrant, that the title of the father originated in a settlement made by Alexander McClintoek, in the year 1766.- But the decision of the board of property can have no effect on the rules of the courts of law j and the rule by which a man is estopped from making an averment contrary to his warrant, was founded in some degree, on motives of policy ; to preserve purity of morals5 and to prevent fraud, by the fear of penalty. When it is understood, that a man hazards the loss of his land, by an attempt to deceive the officers of the land office, as to the commencement of his settlement, there will he little danger of attempts to practise that kind of imposition.

The counsel for the defendant also prayed the opinion of the Court below on another point, and complained that no answer was given. In making out the title of the plaintiffs, the will of John Mi Far lane had been given in evidence, by which he devised “ all that, his messuage or tenement whereon he then lived, together with all and singular, the appurtenances thereunto belonging, to his sons John and Alexander, (the plaintiffs in this suit,) to hold to them, or their heirs or assigns for ever; to be divided among them according to an instrument drawn and in the hands of the heirs of Daniel McDaniel, deceased. The Court was requested to direct the jury, “ that this devise passed no title to the land in dispute, as the testator had been dispossessed of the land in dispute, four years before the date of the devise.”—It may be proper- to mention here, that the defendant had given in evidence, the record of .an action of ejectment, -in which Samuel Mitchell, claiming under James MlFarlane, had recovered the 44 acres now in dispute, from John MlFarlane, the testator. The Court below, no doubt through inadvertence, gave no opinion what ever on the point proposed, and the question being material to the support of the plaintiff’s title, the withholding of the opinion was error. Of the right of a testator to devise land of which he has been disseised, I think there can be no question. The tenures attached to the feudal system, never having prevailed in Pennsylvania, we have paid no regard to that principle of the English law, which requires seisin in order to authorise the alienation of land by deed or will. Our statute of wills, made in 1705, enacts, that “ all wills in writing, wherein or whereby any lands, tenements, or hereditaments within this province, have been, or shall- be devised,' being proved by two or more credible witnesses, &c. &c. shall be good and available in law, for the granting, conveying, and assuring of the lands or tenements, thereby given or devised.” In the case of Stoever (in error,) v. The lessee of Whitman, 6 Binn. 416, it was made a question, whether one out of possession could convey land by deed, and decided by this Court in the affirmative. The following is an extract of the opinion delivered by the Cpurt. When deeds and devises of land have been considered by our Courts, it has never been made a question, whether the grantor or devisor, was in, or out of possession; and to make it now, would be to disturb what has been looked upon as settled.” Nevertheless, the Court should have instructed the jury, in what manner the will of John M1-Far lane was to be construed. The testator having devised “ all that messuage and tenemen¿^ -whereon he lived, with the appurtenances,” if the 44 acres now in dispute, were at that time separated from the plantation on which he lived, and he did not. keep up his claim, they would not pass by the will; but if he did keep up his claim, they might pass. It was a question of intention, involving a fact on which the jury might decide. Whether an estate passes, is matter of law, but where that estate lies, or what is the extent of it, is fact. Light might be thrown on the intent, by reference to the instrument in the hands of the heirs of M'-Daniel; but without doubt, the defendant had a right to the opinion of the Court on the point proposed. Upon the whole, I am of opinion, that the judgment in this case, should be reversed, and a venire facias de novo awarded.

Judgment reversed, and á venire facias de novo awarded.  