
    White and another against the Lessee of Kyle.
    
      Sunbury, Saturday, June 13.
    A settlement made on lands not purchased from the Indians, cannot be the foundation of any title, legal or equitable, less connected with a special promise from the proprietaries or their agents.
    A warrant calling for an improvement made by A, can- , , nolbe supported by an improvement made by B, nor can it be so connected with any after purchased improvement as to vest a title.
    Persons settled upon land not purchased of the Indians, and receiving from the proprietary agent a promise of confirmation, were bound to apply for the confirmation at the opening of the land office for those lands, or within a reasonable time afterwards, or they lost the benefit of the promise.
    IN ERROR.
    THIS was an ejectment for lands in Mifflin county, the J. title to which on both sides is state-d in the first volume of these Reports, p. 247.
    
    Upon the trial of the cause, the opinion of the court r ; was requested upon various points, of which two only are material. 1. Whether any improvement, made before the land on which it was made was purchased from the Indians, can vest any interest either in law or equity, unless connected with a special promise from the proprietaries or their agents. 2. Whether a warrant calling for an improvement made, can be supported by an improvement made by any other than by him named in the warrant? And whether an improvement purchased alter the date ol the warrant, can in any wise support an equity claimed under the warrant?
    
    On the 1st point, the court gave their opinion that such an improvement would vest an equity, without a special promise. On the 2d, that a warrant calling lor an ímproveraent made, could’ be supported by an improvement made by another person than by him named in the warrant; and tjjat an improvement purchased after the date of the war- ... . , , , . rant, will vest án equitable as well as a legal claim.
    defendants tendered a bill of exceptions; and the £. points were here argued on their behalf by Watts and Dun- and by Huston for the defendant in error, who was ’ J plaintiff below,
   Tilghman C. J.

On the trial of this ejectment, the opinion of the Court of Common Pleas was asked on seven points' on the part of the defendant, who is plaintiff in error in ’this court. But our decision is requested on only two of those points, viz. the 1st and 5th.

The 1st question is whether any title, legal or equitable, could be acquired by a settlement made on lands before they were purchased by the late proprietaries from the Indians, without a special promise from the proprietaries to the settler. The opinion of the court below was that an equitable title might be acquired.

This is a question of very easy solution. It was the uniform custom of the late proprietaries, not to exercise any act of ownership in the soil contained in their charter limits, before they had come to an agreement with the natives. They made no surveys on the unpurchased lands, either for themselves or others, without the consent of the natives; and this policy, founded on the plainest principles of justice and good sense, was adopted by the legislature. So early as the year 1700, an act of assembly was passed, declaring void all purchases of land made by private persons from the Indians, without permission of the proprietary. It appears that great discontent prevailed among the Indians at the intrusion by the white people on the very lands now in dispute. So much so, that in order to appease them, Richard Peters, then secretary of the land office, went with some magistrates, for the express purpose of removing the settlers, and they were removed, and their houses burnt. But in order to conduct tiie matter as speedily and'with as little disturbance as possible, Mr. Peters promised some of the setters, particularly William White, deceased, under whom the defendants claim, who had great influence, that ’if they would remove quietly, their lands should be granted to them after the proprietary should purchase them of the Indians. Now how is it possible, that a settlement made against law, against justice, against policy, and manifestly tending to involve the country in war, should ' be a ground of any title in law or equity? The very point was decided by this court before, when a new trial was ordered in this cause, 1 Binn. 246; and if it had never been decided, it is too clear to admit of the least doubt. It is one of those self-evident propositions, which cannot be rendered plainer by any process of argument. So at least it appears to me, and I cannot help supposing, that when the court below passed their opinion upon it, they took into view some facts not appearing on the record.

The other decision, which has been objected to, is as follow's. That a warrant calling for an improvement may be supported by an improvement made by a person different from the one named in the warrant, and that an improvement purchased after the date of the warrant, will vest not only an equitable but a legal title.

In order to understand this opinion, which stands in the form of an abstract proposition, we must consider the evidence to which it referred, James Kyle took out a warrant the 23d of October 1765, for 200 acres including his improvement. Previous to that time, he had made an improvement of his own, to which the warrant was applicable. But in September 1766, he obtained a conveyance of the right of George Gabriel, who is said to have made some kind of improvement before the proprietary’s purchase from the Indians in the year 1754, and the plaintiff’s counsel contended that Mr. Peters had promised Gabriel that his title should be confirmed. It was competent to Kyle to purchase as many titles as he pleased, and to defend himself under all or any of thém. But they must be considered as distinct titles. He cannot take a warrant for his own improvement, and connect it with an after purchased improvement, because such was not his contract with the proprietary, who might have reasons for confirming the title of one improvement though not of the other. But as to Gabriels improvement, if he received a promise of confirmation from Mr, Peters, he ought to have applied to the land office, at its opening for the sale of these lands in February 1755, or within' a reasonable time afterwards. By not making such application he lost the benefit of the promise. It would be altogether unreasonable to call for a confirmation after a delay of ten years. In no point of view, therefore, could Kyle attach the improvement of Gabriel to his warrant taken out in the year 1765.

I am of opinion that the decision of the court below was erroneous on both points, and therefore the judgment must he reversed, and a venire facias de novo be awarded.

Yeates J.

It has been admitted in the course of this argument, that no right of pre-emption could be founded on a settlement made on lands comprehended in the Indian purchase of November 1768, at Fort Stanwix; but a distinction has faintly been attempted between that and other purchases made of the natives. I can see no ground whatever for a difference between the cases. At all times it has been declared unlawful to settle upon lands unpurchased from the Indians; even hunting upon them has been prohibited bylaw. The proclamations of the different governors were opposed to such conduct, as inimical to the interests of the late proprietaries, and of the province in general, and of sound policy. In Bonnet's Lessee v. Devebaugh and Smith, 3 Binn. 187, I have endeavoured to show that the origin of improvement rights was to be imputed chiefly to the uniform usages of the land office, and the encouragement given by the proprietaries and their agents to settlements; but it will not be hazardous to assert, that no encouragement has ever been given by the proprietary officers, to settlements on lands unbought from the Indians, unless under military permits for the convenience of the army, and that no decision of the board of property, or of any court of justice, has ever favoured a different doctrine. I have no hesitation therefore in declaring, that the opinion of the Court of Common Pleas, that an improvement made on land before it was purchased from the Indians, would vest an interest in equity, without a special promise from the proprietaries or their agents, was erroneous.

The court’s answer to the fifth question proposed by the defendant’s counsel, I also consider as erroneous. This will be more intelligible by attending to the evidence given on the trial.

The lessor of the plaintiff claimed under two warrants, one dated the 3d of June 1762, and the other dated the 28th of October 1765. It is material to consider the latter only, on the present question. It issued to James Kyle for 200 acres of land, including his improvement on the north side of Juniata, settled in 1754, interest to be computed from the 1st of March 1755. On the 22d of September 1766, George Gabriel executed a deed poll to Kyle of his improvement right in consideration of Si. And the point of enquiry was, whether the plaintiff could connect the warrant right of Kyle with the claim of Gabriel. From the pronoun his in the warrant, it is evident, that it must refer to an improvement then belonging to Kyle, and not to one bought up by him nearly one year afterwards. It is admitted that a suitor mav buy in an elder right to strengthen his own claim; but he can succeed to no greater interest than the vendor himself had. If Gabriel therefore was entitled to any of the advantages, promised to the settlers on Juniata by the proprietary agents on the condition of quitting their settlements, he ought to have pursued his claim by applying for the land when the office opened on the 3d of February 1755. Failing herein, and not resuming his possession, he forfeits his claim by abandonment, and the warrant of October 1765 would be no prosecution of his supposed equitable interest. The claim under it must stand on its own merits, independently of the warrant, and Kyle, as the purchaser of the improvement right, must stand precisely in the same situation as Gabriel on the 22d September 1766.

I think the Court of Common Pleas erred in saying that the improvement purchased after the date of the warrant, would support an equity claimed under the wqirant; and therefore concur in opinion that the judgment of the Court of Common Pleas should be reversed and a venire facias cieno vo be awarded.

Brackenridge J. gave no opinion, having been unable from sickness to attend the argument.

Judgment reversed.  