
    Lessee of David Gilliland v. David Hanna.
    This was an ejectment for 300 acres of land on a demise dated 20th January, 1793, for five years.
    The plaintiff produced a warrant for 150 acres of land on the waters of Turtle creek, in Pitt township, Westmoreland county, joining John Roadarmer and others, dated 2d May, 1785, in name of Adam Gilliland; and a survey on it of 133 acres and 149 perches, made 18th September, 1786.
    He then offered Adam Gilliland as a witness to prove that the warrant was taken out in his name, as a mere trustee, and that David Gilliland was the real owner.
    
      
      2 Ventr. 361. 1 Vern. 367. Dall. 72, 424.
    This was objected to without a conveyance.
    
      Brackenridge, for the plaintiff.
    By the regulations of the Land-Office, a man could take out but one warrant in his own name. This is a trust. The title is really in the cestui que trust. Why should he not support an ejectment? The case of a trust is out of the statute of frauds.
    
      Woods, for the defendant.
    It is the plaintiff’s own fault, that he had not a title, when he commenced this ejectment. The statute of frauds precludes any parole evidence of title.
   President.

It will be best to receive the testimony, but reserve the point for argument, if there should be a verdict for the plaintiff; and if afterwards, on argument, the testimony should be thought inadmissible, judgment of nonsuit will be entered.

Adam Gilliland then proved, that he did not take out the warrant or pay any money on it; and that, in 1785, he heard David Gilliland say, he would take out a warrant in his own name. Another witness proved that David Gilliland paid for the warrant.

The defendant produced a location, or order of survey, No. 1486, dated 3d April, 1769, in name of George Thomson for 300 acres adjoining John Fraizer and William Powel, on both sides of Turtle creek, about three quarters of a mile from the mouth; and a survey made by William Thomson (the father of George, and then the surveyor of the district) 17th April, 1769, of 252¾ acres, near Turtle creek, Westmoreland county; and a warrant of acceptance, 2d January, 1788, of this survey made on No. 1486, dated 3d April, 1769; and a patent, dated 2d January, 1788, on this survey, and location No. 1486.

The plaintiff then produced,

1. A release or assignment by George Thomson to John Perry in fee-simple, dated 23d April, 1784, reciting,-“Whereas, on 3d April, 1769, William Thomson procured an order in my name, for 300 acres of land, situate on both sides of Turtle creek, joining John Frazier and William Powel, which said William Thomson conveyed to Conrod Winemiller, and whereas said Conrod conveyed to John Perry and Daniel M'Clintock, and Daniel M'Clintock conveyed his half to John Perry; now I do assign and release all my right and title to same land to John Perry his heirs and assigns.”

Lessee of Waddle v. Gray. Ante p. 248.

2. A conveyance by William Thomson to Conrod Winemiller, dated 3d May, 1771, for the consideration of 25l. “of all his right to a certain tract of land situate on both sides of Turtle creek, and joining lands of John Frazier and William Powel, containing 300 acres more or less, being the same granted to me by an order of survey, dated 3d Aprils 1769, No. to have and to hold, &c. subject to purchase money, &c.”

3. An order of the Board of Property, dated 6th January, 1794, "John Perry stated to the Board, that two surveys being made of two different tracts of land, on an application of George Thomson, No. 1486, dated 3d April, 1769, the right to one of which is vested in him, and that George Thomson has obtained a patent for the other tract. And on examining the surveys and transfers, it is thought proper to allow Perry, or those representing him, a patent, on payment of the purchase money and fees of office, according to the terms on which said application was entered.

Evidence was then given of an improvement on the land in question, in 1771, made by one John Hucheson, who cleared ten acres, had a house and garden, raised grain on it, and lived on it three or four years, after which he lost his senses, and his wife sold the land to William M'Fatrick, who lived on it a considerable time, till killed by the Indians, leaving a daughter yet alive. His executor put a tenant on it, in 1786, who lived on it two years. Then Thomson brought an ejectment against him, and, the executor having no money to maintain the law-suit, the tenant gave up to Thomson, and became his tenant.

Woods, for defendant. There are not two surveys on the location No. 1486, but only one made on the land in dispute, on which, as was determined yesterday, Thomson had a right to lay his location, waving the land originally intended. And from this survey, made 17th April, 1769, George Thomson derives a good title. If he did not, an equitable title is in the heir of M'Fatrick, and the defendant may keep possession, till this heir claims it.

Brackenridge, for the plaintiff, The transfer, made by William Thomson to Conrod Winemiller, of the land described in the location, and referring to it, being notorious in the country was a notice to all men, that the land now in dispute was clear of this location, and might be taken by any other title. Therefore this location being otherwise satisfied, by the land described in it, and now held by the assignee of William Thomson, the real owner of the location, George Thomson, his son can from this location derive no title to the land in dispute; for an attempt like this, to cover two separate surveys under one location, will not be countenanced.

Runnington 15

I Vesey 454.

To suffer George Thomson to shelter himself under the equitable title of M'Fatrick, is carrying the title arising from settlement farther than it ever has been carried. The reason why settlements are regarded is that it would be iniquitous to take from a man the fruits of his labour. But that is no reason why the land should not be taken from another man, who never expended any labour on it.

President. It does seem, from the papers produced, and especially from the order of the Board of Property, who had all the means of information, that two surveys have been made by William Thomson, on one location; that he sold the land for which the location was taken out, for 25l.; and afterwards laid this location on the land in dispute, for which he has since obtained a patent. It is not necessary, at present, to give any opinion on this.

For it is a general principle, that, if there be, out of the plaintiff, a better title in any man, than the plaintiff’s, the defendant shall keep possession against the plaintiff, until the better title appear.

The claim arising from the settlement of a new country, by the permission of the proprietor, is meritorious. Lord Hardwicke, in the case of Penn v. lord Baltimore, says, that, in cases of two great territories held of the crown, long possession and enjoyment, peopling and cultivating countries, is one of the best evidences of titles to lands, or districts of lands, in America, that can be; for the great beneficial advantages arising to the crown, from settling, &c. is that the navigation and the commerce of this country is thereby improved.—Those persons, therefore, who make these settlements, ought to be protected in the possession, as far as law and equity can.

Courts of justice in Pennsylvania have recognized settlements, as equitable titles, or claims of preference.

On 2d May, 1785, this land was settled, and Gilliland could not take it as vacant land; nor does he derive any claim from the settlement on it. It is iniquitous to take the settlement of another. It was iniquitous in Gilliland, to attempt to take it away from the heir of M‘Fatrick. The title of Thomson, if any, existed previous to M‘Fatrick’s settlement. Therefore the iniquity, if any, in Thomson, respecting M‘Fatrick, is less than that of Gilliland: because Thomson only prosecutes a title which commenced before M‘Fatrick‘s equity; while Gilliland prosecutes a title which commenced after the equity of M'Fatrick. Whatever Thomson’s title may be, Gilliland’s is bad, and the defendant is not to be disturbed by it.  