
    Lessee of Frederick Merchant & Peter Bright v. Jacob Milliron’s Executors.
    THIS was an ejectment for 250 acres of land.
    The plaintiff’s title was a warrant to Merchant and Bright, for 250 acres of land on the waters of Big Sawickly, adjoining land of Jacob Milliron, &c. dated 10th February, 1786; a survey of 268 acres and 155 perches, and allowance, made 12th April, 1786 ; and a patent 27th October, 1787.
    The defendant also shewed a warrant in name of Jacob Milliron, in trust for the heirs of his father, dated 23d August, 1786, for 200 acres ; a survey on 12th September, 1786, of 220¾ acres ; and a patent 12th October, 1786.
    It appeared in evidence, that, upwards of twenty years ago, Jacob Milliron bought from William Thomson his claim to a certain trail of land. Thomson, who was surveyor of the district, surveyed it. And there was no other claim to it ; nor was there any dispute with any of the neighbours about the boundaries. In March, 1780, Milliron had a house, a barn, and sixty acres of land cleared on it. On 4th December, 1784, Milliron, who had several sons, got two warrants (one in the name of one of his sons) of 300 acres each, charging interest from March, 1780. On these he had his whole claim surveyed on 26th April, 1785. This survey was found to contain 900 acres. The surveyor told the Millirons, that he could not return so much on their two warrants, and they must get another for the residue. He returned more than 300 acres on each, and run a line, by their directions, dividing the returned land from that not returned. This line was within 50, or 60 perches of Milliron’s house, and cut off a small part of his meadow, and a piece of good bottom land, such as would be chosen as part of the place. Merchant and Bright never had any claim to any part of Milliron’s claim, till they took out their warrant. And the surveyor never went on the land after the date of their warrant, but returned their survey, from the plat he had made for the Millirons. The plaintiff’s warrant, and Milliron’s warrant of 23d August, 1786, were both for the land in Milliron’s claim, not returned on the two first warrants; and this was the land in dispute.
    
      Brackenridge and Galbraith, were for the plaintiff.—Ross and Young, for the defendant.
    
      Brackenridge objected to the reading of Milliron’s two first warrants, because it had been proved, that they were laid on other ground; and to any evidence of his improvements, unless they were within the disputed ground.
    
      2. St. L. 316.
   President.

The defendants may controvert the proof of the warrants being laid on other ground, we cannot prevent their attempting it, the jury will judge. Let testimony also be admitted to shew where the improvements named in the warrant are, whether within or without the disputed lines, and how near them ; that from their proximity or distance, with respect to the disputed lines, the intention of the Millirons expressed in the warrants, may be known, as to what ground is included in the warrants, whether the disputed land of not.

Ross. The land-office will receive returns of survey to the extent of 400 acres and allowance, and even upwards, though the warrants call but for 100 acres: and the claimant will obtain a patent for the whole. But if less has been returned, and a speculator steps in, and takes the surplus of a fair claim, he has committed a fault, and will you not lay hold of the slightest circumstance, to defeat him. The 9th section of the act of 8th April, 1785, makes void every survey made before the warrant comes into the hands of the deputy surveyor,or without going on the ground. The plaintiff’s survey is therefore void, as the surveyor never was on the land, after the date of the warrant. Of course the patent is void.

Brackenridge. The original ideas in this country, supported by the habits of thinking East of the mountains, and the opinions of courts and juries here, made it long be considered as the law of the land, that an actual settlement gave a title. But when the judges of the Supreme court came here, this doctrine was overset; and the law is now settled otherwise. Until those decisions of the judges of the Supreme court, our legislators never thought of any precaution, to protect settlements against titles ; because they thought it as impossible, that they could be hurt, as that the winds could sweep away the mountains. In the end of the year 1786, I brought forward the law, which has ever since been continued in force, to protect settlements. I consulted the judges, to know whether they would permit evidence of improvement against title. They said no : our system is otherwise. The earliest title must hold. But this is not a case of settlement. It is not a claim of 300 acres, but of 900, three times a reasonable claim.

Note.—I have since understood, that it has been decided, by the judges of the Supreme court, that the act of 8th April, 1785, extends only to the new purchase, the land proposed by that law to be sold. If so, the point, on which this case was put to the jury, was wrong. But it has since been determined by judges of the Supreme court, that, under the act of 26th March, 1785, and other acts giving sanction to improvements or settlements, evidence of improvements or settlements, without office titles, might be given. And in the case of Wells v. Wright, in Washington county, at a court of Nisi Prius in May, 1793, it was held, that a warrant taken out by one man, for the actual settlement of another, before the law of December, 1786, was void.

President. The full extent of the claim of old Milliron, an early settler in this country, is but a reasonable provision for himself and his family of sons; and ought to be protected if possible. The disputed land is contiguous to the house, and such as would naturally be chosen as part of the place. If the plaintiff’s survey had been regular, we should have thought ourselves bound by former decisions, to say, that the title is in the plaintiff. But, as the survey is void, you may perhaps consider yourselves as standing in the situation of the board of property; and give such decision by your verdict, as the board would have given, if the case had come before them.

The jury found a verdict for the defendant.  