
    Lessee of M‘Knight and another, Executors of M‘Knight, against Yingland and others.
    
      Sunbury, Thursday, July 13.
    THIS was an appeal from the decision of the late Mr. Tustice Smith, at a Circuit Court for Huntingdon in J ’ ° April 1807.
    
      j. and B. purc,)ase a warrant and survey as tenants in common. B. resides in England", and j. is the acting partnermPenncarries on all the correspondence with an agent in to the surveyed. A. ten years after the return of flc^Yy'lndorae ment thereon in the surveyor generars oriicc dedares “ that the “ lla¡ “ on the land ‘ “ for b "the warrant on “ which it is- re- “ turned, (which “ he thereby re. «same to a” B. did not dissent from the relinquishment, for 18 years, when he and A. conveyed the tract to a purchaser for a valuable consideration.
    It was an ejectment for a tract of land m the cosnty of Huntingdon, to which the plaintiff’s title was as follows:
    On the 28th July 1766, a warrant issued to Baynton and Wharton, calling for “ the Saplin land, and the Indian path ■ ° ' “ leading to the great island. Upon this warrant, 540 the land in question, were surveyed and returned L , J office the 4th December 1766.
    On the 30th April 1767, Baynton and Wharton conveyed to Richard Neave and Richard Neave junr. of London merchants, in fee simple as tenants in common. ' 4
    On the -7th March 1776, Richard Neave junr., who was then in Philadelphia, and who- had carried on with George Woods, the agent for this land, all the correspondence relating to it, his father Richard Neave residing in England, signed , ’ . . , , ° . , ° the following indorsement upon the survey in the surveyor general’s office: “ This survey not having been made on the il land located by the warrant on which, it is returned, I do “ hereby relinquish the right to the above to George “ Esquire. Richard Neave junr.;” and the fact, as it appeared in evidence, was, that the warrant was not laid upon the land for which it called.
    
      
      Held that the indorsement upon the survey by A. was an abandonment of the survey by bdth partners, and that their vendee could not recover any part of it.
    
      On the 1st March 1794, the Heaves conveyed all their land's in Huntingdon, describing this tract and others, to Robert M'-Knight, under whom the lessors of the plaintiff claimed.
    The title of the defendants was as follows:
    On the 1st May 1767, a warrant for 250 acres was granted to John Cochran, on which 323 acres were surveyed the 27th October 1767, being part of the land included in Baynton and Wharton’s survey.
    On the 10th October 1767, Cochran conveyed to George Woods. On the 8th March 1776, the day after Heave’s indorsement, Cochran’s survey was returned into office, and a warrant of acceptance issued to George Woods, in consequence of Cochran’s conveyance and of Heave’s indorsement. In this return of survey, the residue of the land in Baynton and Wharton’s-survey riot covered by Cochran’s warrant, was marked vacant.
    
    On the 9th March 1776, the tract of 323 acres was patent'* ed to Woods, who on the same day conveyed to Harry Gordon,, under whom one of the defendants claimed.
    The other defendants claimed under a settlement and improvement in the year 1784, on that part of the survey relinquished by Heave, which was not included in Cochran’s survey, but was marked in the return of that survey as vacant ground.
    By a letter from George Woods to Richard Heave junr., produced in evidence by the plaintiff, it appeared that after Heave made his relinquishment, his warrant was put into the surveyor’s hands to be laid on other lands, and was actually laid by mistake on land which belonged to him and his father, and returned into the surveyor general’s office.
    Upon these facts it was conceded at the trial by the plaintiff’s counsel, that as to one half of Cochran’s survey claimed under Harry Gordon, the plaintiff could not recover; because Richard Heave junr. had a right to relinquish a moiety, and had relinquished it to George-Woods; but as to the moiety of that survey belonging to Richard Heave the elder, and as to the whole of the 217 acres covered by improvement, it was contended that the plaintiff ought to recover, because the son had no authority, to relinquish his father’s interest, and in fact had only relinquished to George Woods, whose claim went no further than Cochran's survey.
    By the defendants’ counsel it was argued, that Richard Reave junr., who. was the acting partner, and exclusively managed the partnership interest in this land, had a right under the circumstances to relinquish the whole, and had relinquished the whole. That until a patent was obtained, the title was not complete as between the purchaser and the proprietaries, and that before that event it was competent to one of two holders of a warrant, certainly to the acting partner in the concern, to reject a survey improperly made. That Reave the son had relinquished the whole, not only in térros but in effect; because George Woods, the agent of the Reaves, had returned the 217 acres as vacant ground, which was a declaration by the Reaves that the old survey was completely rescinded, and that the defendants who claim' by settlement, might enter and improve the land. That the proprietaries had accepted the relinquishment by accepting Woods’ survey under Cochran’s warrant; and that Reave the father, had never dissented from the act of the son. That the plaintiff could therefore recover no part of the claim.
    His.Honour charged the jury, that if the writing executed by Richard Reave junr. was to be considered as a conveyanee of the land, it could pass no more than his moiety; but that the real question was as-to the power which one tenant in common has over a partnership warrant under the practice in this state; and as to this, the inclination of his mind was,,. that under the circumstances of this case, Richard Reave the son had sufficient power to relinquish the whole survey, and had actually relinquished the whole. The land called for by the warrant had not been surveyed; the indorsement was a public recognition of the fact, and the evidence given upon the trial confirmed it. In Pennsylvania one partner generally superintended the survey of a company warrant; and it had been the universal practice, if he acted without fraud upon his partners, to consider his act as the act of all. He might order the -survey in such shape or figure as pleased him; and if he should find that it had not been made upon the ground called for by the warrant, it appeared to his Honour that he might refuse to accept the survey, that he might demand the land called for, and of course might relinquish 'the survey which gave him other land. It was a matter of fact, his Honour said, for the jury to determine, whether Richard Reave junr. had not been the acting partner, and whether the father had not acquiesced in the son’s act. The whole turned upon the difference between conveying lands, and making a disposition of a survey in Pennsylvania. If the jury were of opinion that Reave the son was the acting partner, that he had been guilty of no fraud, and that his co-tenant had acquiesced in his act, his Honour was then of opinion that the. indorsement was a refusal to accept any part of the survey, or a relinquishment of the whole, that the survey thereupon became a nullity, that other land might have been surveyed upon the warrant, and that even if the defendants had no title, the plaintiff could not recover: certainly he could not recover more than a moiety of the tract of 540 acres, as at all events there was a relinquishment of the son’s right in the whole.
    The jury found for the defendants. A motion for a new trial was then made and overruled, and the plaintiff appealed to this court.
    It was argued at the present term by Watts and Riddle for the plaintiff, and by S. Riddle and Duncan for the defendants;, and the Chief Justice, after stating the titles and facts, now delivered judgment.
   Tilghman C. J.

It will not admit of a moment’s doubt, that the plaintiff who claims under a deed from the two Reaves to Robert Knight, now deceased, must be barred as to one half of his claim; because when Richard Reave junr. relinquished the survey returned on the shifted warrant of Baynton and Wharton, he was tenant in common with his father of an undivided moiety. But it is contended that he could not affect the title of his father, who was entitled to the other moiety. This in truth is the only point worthy of consideration, and it appears to us that there is very little difficulty in it.

The title of a person who takes up land, is not complete before he obtains a patent, although he may maintain an ejectment upon a warrant and survey. It is not uncommon to make alterations by permission of the land office, after return of the survey; and in no case can it be more proper than ¿ft the present, where the survey has been executed on land not called for by the warrant. Under such circumstances, where one of the owners of the survey was residing in E'n-gland, and the other in Pennsylvania, where all the correspondence with George Woods the agent, touching this land, was carried on by the partner residing in Pennsylvania, and where the other partner never by word or deed expressed 'any dissent from the relinquishment of the original survey, before the year 1794, it is not unreasonable to presume that such relinquishment was approved of by the partner residing in England. The officers of the proprietaries’ land office consented that the survey first returned should be given up, and the very next da}' granted part of the land so given up, to another' person. They consented also that Messrs.,< Neave should lay their warrant on other land; it was so understood by Neave junr., who accordingly took measures for procuring another survey.

Upon all the evidence given in this case, Judge Smith declared his opinion to the jury that the first survey was to be considered as abandoned by Messrs. Neave, and consequently the plaintiff was not entitled to recover any part of it. We fully concur in this opinion. The judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.  