
    ALLEGHENY COUNTY,
    December Term, 1798.
    Joseph Marshal v. James Sprott.
    THIS was an action of indebitatus assumsit, for money had and received.
    3 St. L. 209.
    
      3 St. L. 488.
    
    When the law of 3d April, 1792, opened the Land-Office for the disposition of land west of the Allegheny river, many supposed, that each person had a right to appropriate to himself, by settlement only, as well as by warrant, as many tracts of land as he could procure to be settled. This principle, taken as certain, was immoderately abused. And a great number of tracts were so claimed by each of many individuals, by means of trifling cabbins, deadenings, &c. which they called improvements ; but which had no kind of resemblance to what the law intended, “an actual personal resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family.”
    Of these the defendant seems to have been one, and, by such improvements, claimed several tracts, which he proposed to fell to settlers. Two hundred acres, the half of one of his tracts so claimed, he sold to the plaintiff, for 200 dollars, by an article dated 24th February, 1797, binding the plaintiff to clear ten acres, and reside on the land five years. This settlement and residence would have intitled the settler, and, as Sprott conceived, would have intitled him, under the law, on the payment of the purchase money, to a patent for 400 acres.
    In April, 1797, Marshal, going to settle on this land, found one Lowry, with his family, residing there ; who, having raised a crop of corn there, the year before, claimed a tract of 400 acres. There were other settlers round, and there was no reason to believe, that Lowry could have more land to his settlement, out of their boundaries, than 400 acres. In February, 1797, one Willis had applied to Sprott for the land. Sprott told him, he had promised it to Marshal, the fall before, and if he stood to his bargain, he would not give it to another. They went to Marshal, and he stood to his bargain, and paid Sprott part of the money. There was no evidence, that Marshal knew any adverse possession.
    
      Brackenridge, for the defendant,
    offered to prove a parole contract previous to the article.
    President. The parties have reduced all their previous negotiation to the points stated in the article.—There is no suggestion of fraud.
    
      Brackenridge then called a brother of the defendant, to prove, that, at the time of the payment of the money, Sprott offered to Marshal, to give up the bargain, and demand no money, if he relinquished his claim to the land.
    Semple, for the plaintiff,
    objected to this testimony, and stated, that Sprott had brought an action against Marshal on the article.
   President.

If an action be brought on the covenant, Sprott can recover damages for any default of Marshal. Marshal, having no knowledge of any adverse possession, went to make a settlement according to his article. He found another in possession, and could not proceed to make his settlement, without taking possession by force, (which would have been an offence) or prosecuting an ejectment. He was not obliged to do this ; but, in such a case, had a right to say, that the bargain, from this material defect, an adverse possession, became void, and he had a right to demand back his money. The defendant seems to have been conscious of this, and proposed to do precisely the same thing. I can see no use in the evidence offered. But, if the defendant’s counsel think otherwise, we will reserve the point.

There was a verdict for the plaintiff.  