
    [Sunbury,
    June 21, 1824.]
    SMITH against OLIVER.
    IN ERROR
    A. having’ a sheriff’s deed for a tract of land, described by certain boundaries, and said to contain 300 acres, conveyed it to B. by the same boundaries, but calling it 200 acres. He afterwards conveyed to C. an adjoinging tract, and the sheriff'’s deed for the first mentioned tract, deducting 'the 200 acres sold to B. It was afterwards agreed, between B. C. and D. (to whom B. had conveyed,) that the 200 acres should be laid off at the south, instead of the north end of the tract, so as to include certain improvements; and for the privilege of doing this, B. agreed to transfer to C. one of D’s. bonds to him for SO pounds. Held, that the whole tract, and not merely 200 acres, having been conveyed by A. to B., C. could derive no title to the land thrown out at the north end of the tract, either under A’s. deed to him or under the agreement.
    Where one has taken out a warrant which is illegal and void, under tlie act 22d September, 1794, which requires that a warrant shall be founded oii a previous settlement, he may, nevertheless, afterwards, acquire a title by improvement to the land described in the warrant.
    A man cannot be seized of an improvement right in trust for another. Therefore, where it was doubtful upon the evidence, whether an improvement made by a tenant, was made for the plaintiff' or his father, it was held to be error to instruct the jury, that even admitting the plaintiff to have been a trustee for his father, the action might be sustained in his name.
    The record of this ejectment having been returned on a writ of error to the Court of Common Pleas of Mifflin county, thematerial facts appeared to be these:
    
      William Smith, the plaintiff in error,
    having been prosecuted at November Sessions, 1811, for a forcible entry and detainer, by the defendant in error, James Oliver, it was subsequently agreed between them that the indictment should be discontinued, and an amicable action of ejectment entered of August Term, 1812, in which Oliver should be plaintiff, and Smith defendant, who was to derive no advantage from his possession, further than he could connect it with the alleged possession of his father, and with his title.
    The plaintiff below, James Oliver, claimed the land in dispute, under an improvement and settlement, in support of which he proved, that in April, 1808, one Samuel Keesman went on it and built a small cabin house and stable, cleared, the first year, an acre and a half of land, and made a garden and some other improvements. In the course of two years from' the time he went there, he raised some grain, and had a family on the ground, who continued to live there at the time of the trial. One of the plaintiff’s witnesses testified, that Keesman went into possession under James Oliver. But another of his witnesses swore, that he went in under John Oliver, the father of the plaintiff.
    The defendant derived title from Stephen Jordan, who claimed two tracts of land, adjoining each other, on the river Juniata, one by location, the other by improvement His claim under the improvement, extended northward to the Barren Ridge, and included, it was alleged, the land in controversy. In the year 1768, judgments were obtained against him, under which both tracts were sold by the sheriff, and purchased by William Lyon. The upper, or improvement tract, was described in the sheriff’s deed to Lyon, • which bore date, the 28th January, 1769, as u bounded on the east by John Armstrong, on the north by a barren ridge, on the west by Joseph Jacobs, and on the south by J. Jordan’s other tract, and containing 300 acres.” Lyon, by deed, dated 31st January, 1769, conveyed both tracts to Alexander Broion, who, by deed, dated 5th January, 1771, conveyed the improvement tract to Benjamin Brown. The description of the land in this deed, was substantially the same with that in the sheriff’s deed, except, that instead of 300 acres, it was called 200 acres. From a draft produced by the defendant, it appeared that the whole tract contained but 219 acres. In the year 1793, a survey was made for Benjamin Brown, by which it was ascertained, that to lay off 200 acres, at the north end of the tract, the improvements, which lay at the south end, would be excluded. After this survey, Benjamin Brown. conveyed to George Miller, describing the land in the same manner, that it was described in the sheriff’s deed, but calling it 200 acres.
    On the 15th March, 1780, Alexander Brown, conveyed the location tract, which he had purchased from William Lyon, containing 1471 acres, to William Smith, the father of the defendant, and under whose will he claimed; and on the 28th January, 1783, he conveyed to the same person, the sheriff’s deed for the improvement tract of 300 acres, with the deduction of 200 acres conveyed to Benjamin Broion.
    
      
      Robert Robison, a witness produced by tbe defendant, testified, that in a conversation he had with Judge (John) Oliver, he informed him, that at the time Benjamin Brown sold to George Miller, a surveyor was brought on the ground,, who commenced his survey, at or near the ridge, and measured south so as to take in 200 acres. But Brown’s orchard, spring, and a certain portion of cleared land, being excluded by this survey, which he desired to be embraced by his 200 acres, he requested William Smith to permit him to begin his survey at the south side of his improvements, and continue it northward, so as to comprehend the improvements in his survey. To this arrangement, Smith agreed, on certain conditions. That on the morning Brown was about to move away from the country, he came to Oliver’s house, and told him that Smith had called on him, and desired him to give to him a bond of George Miller, for fifty pounds, for the liberty he had given to him of including his improvements in his survey, and of cutting timber on land south, claimed by Smith; and had threatened, in case of his refusal to give the bond, to send the sheriff .to him. That Oliver then told Brown, that Smith would no doubt do as he had threatened, and the better way would be, to give Smith the bond, and leave the matter for him, Oliver, to manage afterwards. That Brown, accordingly, gave Smith the bond, which after his death, came into the hands of his executors. That some time after the death of Smith, ‘ a person came to receive the money due op Miller’s bond, and called on Oliver with respect to it. That Oliver accompanied him to the executors of Smith, and stated to them, that he believed the bond to have been fraudulently obtained from Brown. That the land for which it was given, was his, (Oliver’s) property. That he had a title from the commonwealth, and in^is his opinion, it would be unjust to take the money from the heirs of Brown, and give it to the heirs of Smith, when Smith had no title to the land. That the executors of Smith were of the same opinion, and gave up the bond to ' the heirs or agent of Brown. The conversation detailed abovej' took place in 1807 or 1808.
    Another witness, William Jones, testified, to judge Oliver having informed him of the arrangement between Benjamin Brown, William Smith, and George Miller, by which Miller’s bond for fifty pounds, was to be given to Smith, as a consideration for his permission to lay off the 200 acres at the south end of the tract.
    Evidence, besides that which has been stated, was given by the plaintiff, to prove that the improvement under which he claimed, was made for himself; and the defendant gave further evidence to show that it was made for Judge Oliver, the plaintiff’s father. In pursuance of this object, the defendant, after some evidence had been given of the loss of the record, offered parol evidence, to show, that certain proceedings under the landlord and tenant law, were commenced by judge Oliver. The evidence was objected to by the counsel for the plaintiff, and rejected by the court, who sealed a bill of exceptions.
    The defendant also proved, that prior to the plaintiff’s improvement, viz. on the 29th .December, 1794, a warrant was taken out in the name of James Oliver, though, it was contended, really, for John Oliver, for 290 acres, including the land in dispute. This warrant, it was admitted by the counsel for the plaintiff, was void, in consequence of having been issued after the passage of the act of 22d September, 1794, without having been founded on a previous settlement. The application for this warrant was made on the certificate of William Smith and John Culbertson, that the land was vacant and unimproved.
    The court below charged the jury in favour of the plaintiff. Those points of the charge, which are now material, were to this effect:
    The quantity called for in the deed from Alexander Brown to Benjamin Brown, is only matter of description, and the deed in law transfers the whole tract, whether it calls for 200 or 800 acres. If this tract had contained a less quantity than 200 acres, it is doubtful, whether Alexander Brown would be responsible upon the general warranty contained in the deed, for such deficiency. It is however, certain, that the deed from Alexander Brown to Benjamin Brown, did convey the whole tract, according to the boundaries set out in it. But it is said the acts of the parties show, that only 200 acres, part of the tract, were sold, and that he and those under him, claimed only to that extent.
    It is evident, that if Alexander Brown’s deed, of the 5th January, 1771, conveyed the whole improvementtráct, embracing the land in dispute, to Benjamin Brown, his subsequent deeds of 1780 and 1783, could convey no part of it to William Smith. A person cannot convey a right, which he has already parted with. According to the evidence in the case, which has not been controverted, these deeds passed no interest to William Smith. It does not appear from any part of the evidence, that William Smith ever had possession of any part of the improvement tract, or land iñ dispute, in his life time. Holding an adjoining tract, under warrant and survey, could give no right, either legal or equitable.
    This view of the case is strengthened by the certificate of William Smith, (if the same person, which has not been disputed,) dated, 19th of December, 1794, that the land described in it is vacant and unimproved. Whether it describes the land in controversy, is to be decided by the jury. If it does, what stronger evidence can there be, that William Smith had no claim to the land in December, 1794, than his certificate, that it was vacant and unimproved?
    It is said by the defendant, that a compromise or agreement took place, by which Benjamin Brozcn was to háve his survey of 200 acres confined to the south end of the tract, and the land in dispute was to be throwp out. If it was thrown out, it does not follow, that it was to go to Smith. If at the dates of the deeds from Alexander Brown to William Smith, and before, the land in controversy was sold to Benjamin Brown, those deeds could vest no title in Smith. The title was a mere equity, connected with an improvement. The improvement, it is admitted, was transferred to, and vested in Benjamin Brown. If so, and a surplus did exist as appurtenant to the original improvement, but on an agreement with Benjamin Brown, separated from it, the conveyance to William Smith of such surplus, would give him only a pre-emption right, which required diligence in him in pursuing it, to consummate a right or title. The defendant says, it was separated from Benjamin Brown’s survey in 1793, and it is not pretended, that any possession was taken by William Smith, in his life time, or by his representatives, after his death, until about 1810 or 1811. Under the circumstances in evidence, it presents a case in which an abandonment may be inferred; but this is matter not for the court, but for the jury.
    But supposing the land to have been thrown out of the survey of Brown and Miller, and relinquished by them, how would that give a right to William Smith? It being a mere equity, appurtenant to an improvement, and separated from it, if it was originally included in the deed to Benjamin Brown, as admitted by the defendant, and William Smith had no right under his deed, it would require a conveyance, or sale, or transfer to Smith, to give him that equity or pre-emption. The mere circumstance of the land being thrown out by Brown or Miller, would not transfer it to Smith, or vest any equity in him, under his previous deed. And if it had, his suffering it to lie for nearly twenty.years, without taking any kind of possession, would be strong and satisfactory evidence of abandonment. If Smith did not take it on its being thrown out, it would become vacant, and liable to be taken up by improvement.
    The plaintiff claims by improvement and settlement, having an actual residence on the ground. Improvement rights have become incorporated with the land titles of the state, and many tracts are held in that way. A plaintiff in actual possession, has a right to claim a reasonable quantity of land around him, not exceeding 400 acres. Upon the survey made upon James Oliver’s warrant, calling for the adjoining tracts, it would seem, that the plaintiff’s claim embracing the land in dispute, probably does not exceed 150 acres; perhaps it is less.
    Two objections are made to the plaintiff’s settlement.
    1. That it was made under a warrant and survey, which were void in law.
    
      3. That the improvement was made for John Oliver, and not for James, the plaintiff.
    The mere circumstance of the former warrant and survey, and their illegality, do not constitute a valid objection to the settlement, if otherwise good. The cases to which they have been compared, of settlement on Indian lands, are not parallel. Such settlements were prohibited under highly penal acts of assembly. No such prohibition existed in this case. It has been well answered to the other objection, that admitting James Oliver to be the trustee for the use of Ms father, an ejectment may well be sustained in the name of the trustee. If James is the real owner, then the objection fails.
    As to the conduct of Judge Oliver. He was right in his advice to the executors of William Smith, as detailed by Robert Robison. He did not state that Smith and Benjamin Broivn exchanged. Brown obtained the privilege of including his improvement. This he had by his deed. Brown’s deed to Miller, is up to the Barren Ridge. If he had exchanged the upper for the lower end, his deed would have excluded it. His deed is dated a few days after the survey.
    The counsel for the defendant excepted to the charge, and on the removal of the record to this court, Alexander and Burnside, for the plaintiff in error, contended,
    1. That the.Court of Common Pleas erred in rejecting evidence to show who conducted the proceedings under the landlord and tenant law. It was material to the defendant to show, that John Oliver was the real owner of the land, because if so, this suit could not be supported in the name of James, the plaintiff; and as these proceedings were evidence of ownership, the defendant ought to have been permitted to show, b)? whom they were conducted.
    
      2. It was error to instruct the jury, that the quantity of land called for in the deed from Jllexander to Benjamin Brown, was but matter of description, and that the deed conveyed the whole tract. What was conveyed did not depend on the deed alone, but on a variety of acts of the parties, from which their intentions were to be inferred. These facts should have been left to the jury, who were to draw their own conclusions from them. In a case like this, made up of written and parol evidence, the court are not to decide, because the decision involves the determination of facts. Brown v. Campbell, 1 Serg. 4' Rawle, 178.
    3. It was error to say, that Smith, residing on one tract of land, could not hold part of another, purchased from another person, who had acquired his title by improvement, and who continued to keep up his settlement on the part unsold. There was no abandonment of this part of the tract. Taking a warrant for part of an improvement, is not conclusive evidence of an abandonment of the residue. Porter v. MiIlroy, 4 Serg. 4’ Rawle, 436. Graham v. Moore, Id. 467.
    4. Abandonment is a question of intention, to be decided by the jury upon the evidence, and the court erred in saying, that this was a rase in which it might be presumed.
    
      5. The court erred in their opinion, that the arrangement conducted with the knowledge of Judge Oliver, and under his superintendance, by which the land in dispute was thrown out of Benjamin Brown’s survey, gave no title to William Smith. He had Alexander Brown’s title to the whole tract, except the 200 acres previously conveyed to Benjamin Brown, and he agreed, in consideration of the bond for fifty pounds, to exchange the southern for the northern end of it, in order to accommodate Miller.
    
    6. The opinion, that it required a deed, sale, or transfer to vest the equity in the land in dispute, in William Smith, was erroneous. Co. Litt. 171. The transfer of an imperfect right may be by parol. Whart. Dig. 391, No. 109. Qilday v. Watson, 5 Serg. fy Rawle, 267.
    7. Oliver had no right under his improvement to cross the line, and enter upon ground which he knew was Brown’s; and the court erred in instructing the jury to that effect.
    S. James Oliver was not the trustee of his father, and therefore, the court erred in charging, that an ejectment might be supported in his name, for the use of John Oliver. An illegal warrant could create no trust.
    9. The docket entries of the forcible entry, ought not to have been admitted. There was not sufficient proof of the loss of the record.
    
      Hale, for the defendant in error.
    1. It being the duty of justices acting under the landlord and tenant law, to make a record of their proceedings, the record itself, ought to have been produced, or proved to have been lost. But if it had been produced, it would not have been evidence in this case. The proceedings were between other parties, and took place after the commencement of this suit.
    2. The construction of deeds belongs to the court, who decided rightly in this case. All the lands embraced by the boundaries set out by the deed passed, whether there was more or less, than was called for. 5 Mass. Rep. 355. 2 Mass. Rep. 380. 6 Mass. Rep. 131.
    3. All that the court said on this point was, that if Smith purchased from the improver or his assignee, the right of pre-emption in the land in dispute, some act on his part, such as obtaining a warrant and survey, was necessary to complete his title, and his neglecting'to do so was strong evidence of abandonment. In this they were clearly right.
    4. The arrangement connected with the transfer of the land for fifty pounds to Smith, gave him no title to the land in dispute. He had no title to any part of the tract, and therefore, was incapable of exchanging one part for another, or of making any transfer of it whatever.
    5. If nothing was done by Smith, to secure the title from 1783, until 1811, and no act of ownership exercised by him, it was certainly a case in which the jury might presume an abandonment, and the court were right in telling them so.
    6. The court did not say, that the plaintiff had a right to cross the line and enter upon land which he knew belonged to Brown. This error is unsupported in point of fact.
    7. It is likewise a mistake to suppose, that the court charged, that James Oliver was a trustee for his father, and therefore, that the suit might be maintained in his name, for the use of his father. The charge was, that if he was a trustee, an actiommight be maintained in his name, which was clearly right.
    8. The docket entries were properly admitted, because proof had previously been given of the loss of the agreement.
   The opinion of the court was delivered by

Gibson, J.

Many of the errors assigned have been abandoned, and of those that remain, I shall notice only such as are connected with the merits.

The case is this. By a conveyance from a person, who had purchased at sheriff’s sale, a certain Alexander Brotan became the owner of two adjoining tracts of land, the one held by location, the other by improvement, both being described in the sheriff’s deed by particular boundaries, and as containing a certain number of acres. Alexander Brown conveys this last tract (the improvement tract,) substantially by the boundaries contained in the sheriff’s deed, and in the deed to himself, but as containing 200 instead of 300 acres, (the quantity mentioned in the sheriff’s deed,) to Benjamin Brown, who afterwards sells to Miller. Alexander Brown subsequently conveys the location tract to Smith, (the defendant’s father,) together with the sheriff’s deed for the improvement tract, as containing 300 acres, deducting 200 acres before sold to Benjamin Brown. On surveying the improvement tract, it is found to contain more than 200 acres, and less than 300, and that to lay off 200 acres according to the boundary called for on the northern side, (the side furthest from the location tract,) would exclude the improvements by which the tract is held; and under a supposition, that only 200 acres, and not the tract, had been conveyed to Benjamin Brown, it is agreed between, Smith standing in the place of Alexander Brown, Benjamin Brown, and Miller, who purchased from him, that the 200 acres should be laid off on the side next the location tract; thus leaving out the land in dispute: and for the privilege of doing this, Benjamin Brown agrees to assign to Smith one of the bonds due to him by Miller, for fifty pounds. The defendant claims the residue of the improvement tract under the sheriff’s deed, and under this agreement. Now it is evident, the agreement arose from the common error of all parties, in supposing, that Benjamin Brown was the owner of a part, and not the whole of the improvement tract. When the land was levied and sold at sheriff’s sale, the quantity was not known, and this improvement tract was described in the levy, and in the sheriff’s deed, by particular boundaries,.and as containing 300 acres ; and when it is sold by Mexander Brown to Benjamin Brown, it is described in the conveyance by the same boundaries, but as containing only 200 acres. On actual measurement, it is found to contain more than 200, but less than 300 acres. In all the conveyances, therefore, the quantity, as it most usually is, was only matter of description: it was the tract, and not any particular number of acres, which was the subject of the grant; and the whole passed to Benjamin Brown, and from him to Miller. Under these circumstances, Smith could derive no title from the agreement. Benjamin Brown had assigned to him, a bond of fifty pounds, for what ? For the privilege of including a part of his own land in his survey, and of throwing another part of it away, which he might just as veil have retained. This is the land in dispute: and al though the exclusion of it is such a designation of boundary as will preclude any one holding under Benjamin Brown or Miller, from claiming it against a person who may have subsequently acquired title to it from the Commonwealth, still it can give no title to Smith, or any one claiming under him, because his conveyance of the sheriff’s deed, by Mexander Brown, passed no interest in any part of the improvement tract, the whole of which had before been conveyed by Mexander Brown to Benjamin Brown. The case then, of a parol substitution of one part of a tract, for another that had been conveyed, which it is contended, would ipso facto re-vest the part on which the conveyance had first operated, was not before the jury; and if there was any misapprehension of the law which would arise out of such a case, it is not the subject of error here. In this view of the case, therefore, it is manifest, that the effect of want of possession by Smith, or of any supposed abandonment, or of Judge Oliver’s acts in relation to the transaction in regard of the fifty pounds bond, is entirely out of the question: the defendant had shown no title under the conveyance of the sheriff’s deed from Mexander Broion, or under the agreement with Miller and Benjamin Brown.

But the plaintiff could recover only on the strength of his own title, which is said to be defective. He claimed by an improvement that was made after a warrant had been taken out in his name by his father. This warrant, it is conceded on all hands, was absolutely void, in consequence of its having issued after the passing of the act of the 22d of September, 1794, without being founded on a previous settlement: and it is contended, that the subsequent improvement having been made in prosecution of an illegal title, can give no right. There is no force in this. The warrant was merely void, and there was nothing criminal, or even immoral in taking it out. The object could not have been fraudulent; for without reciting a previous settlement,, a warrant issued at this time, would be altogether inoperative, and the plaintiff did not pretend, that this warrant was founded on a settlement. There is, therefore, no colour to say, he might not afterwards enter on the land as an improver. The improvement, however, was made by a tenant, who entered under a lease from the plaintiff’s father; and the latter is, therefore, said to be the real owner. If the fact be so, it is a bar to the plaintiff’s recovery. On this part of the case, the judge directed the jury, that “ admitting the plaintiff to be a trustee for his father, the action might be sustained in his name.” This, as an abstract position, is undeniable; but in reference to the circumstance which were in evidence, it had a direct tendency to mislead the jury, by withdrawing their attention from the consideration of the question, whether the father or the son were the owner of the land. How could the plaintiff be a trustee? A trustee is always seised of the legal estate; and if the matter had stood on the warrant and survey, which, as to third persons, is a legal title, all might have been well enough; but that rvas conceded to be absolutely void. An improvement right is a mere equity, the commonwealth being seized in trust for the improver: and strictly speaking, she cannot be seized to the use of A. in trust for B. The judge seemed to think, that the warrant, although void for the purpose of conferring title, might operate as a declaration, as to whose use the entry was, which was made for the purpose of commencing the settlement, and so indeed it might, as a circumstance before the jury, although it would be far from conclusive; but it could have no operation in law, to show that the son was the owner, much less, to give colour of legal title, so as to enable him to be a trustee. If he was the owner of the improvement, he was so to every intent: if he was not, he should not have recovered. Putting the case to the jury then, on a supposition, which was impossible, was an error, for which the judgment is reversed: but we are of opinion, that no other exception has been sustained.

Judgment reversed, and a venire de novo awarded.  