
    Simpson against Wray and Kelly.
    
      Monday, October 15.
    In ERROR.
    An order of Propertymid proceedings thereon, tor a resurvey of a warrant, noting the interference with another survey, on which 755 acres were surveyed on a 420 acres warrant, is prima facie evidence against a surveyor claiming under the latter, though the order was made without notice to such party.
    
      Robert Wray and Moses Kelly, brought this action of ejectment in the Court of Common Pleas of Huntingdon county, and recovered 100 acres of land in that county, and ' J this writ of error was. brought by James Simpson, the defendant below7. As the paper title of James Simpson was the oldest, the case will be best understood, by stating that title in the first place, and then shewing in what manner it was encountered by' the title: of the plaintiffs below.
    
      If the opinion of the Court be requested on a point' by one party, and the Court in answer say, th e adverse party has given a certain answer to it, which is also stated, it is error.
    A survey of 750 acres, on a warrant for 420, ought tobe inquired into by the Board of Property, and the bare acceptance of it, without patent, where the'.parfy had notice of an adverse claim, is not sufficient to vest title, to the injury of such claim. ‘ -
    
      The title of Simpson vras as follows :—On the 14th- December, 1793, John Cadwalader took out a warrant for 400 acres of’land, on which a survey was made on the 5th January, 1794, and returned on the 10th January, 1795, as a survey containing420 acres, although in fact it contained 750 acres. On the 12th March, 1807, Cachvalader, in consideration of 200/., conveyed this tract of land to' Alexander Simpson, Robert Simpson, jun., and James Simpson. ■ Not long after this conveyance, possession was taken, which had been continued1 by clearing and-improving'part of the land, down to' the time of bringing this ejectment;
    The plaintiffs7 claimed under an improvement made by Henry Day, about the year 1801, or perhaps before, which-was conveyed to James Kelly on the 12th January, 1803» who sold a moiety to Robert Wray on the 6th January,■ 1813. The possession under - Day’s improvement had been continued by him, or those claiming under him, without’ interruption. .On the 15th March, 1815, a warrant was taken out by Robert Wray and James Kelly, the- plaintiffs, for 400 acres of land founded on Day’s improvement, on which a survey of 439 acres was made on the 9th June, -1815, including the 100 acres in dispute, which were also included in Cadtbalader’s survey. The plaintiffs contended, that when Cadwalader’s survey was returned to the land office, the officers of the Commonwealth were imposed on by the assertion of the deputy surveyor in his return, that the survey contained only 42© acres, and that being afterwards informed of this, the Board of Property made' an order on the 14th March, 1815, (the day of the date of the plaintiffs’ warrant’,) to resurvey Cád■walader’s warrant, and make return to them of that resurvey together with a survey on. the plaintiffs’ warrant, noting the interferences, and shewing the exact quantities in each. This evidence with the proceedings thereon, the plaintiffs offered to give in evidence, but the defendant objected to it. because the order was made without notice to Cadzvalader or to himself. The Court admitted the evidence, and the defendant’s counsel excepted to their opinion.
    Evidence was afterwards given by the plaintiffs, to shew that the defendant had notice of the claim set up under Day’s improvement, before any part of the 100 acres was cleared or improved. When the evidence was closed on both sides, the defendant’s counsel proposed three points to the Court, on which they requested them to deliver an opinion to the jury. The third point was the following.
    Although the survey under which the defendant claims contains more land than is stated in the return, yet the Commonwealth having received the return, and the defendant being a bona fide purchaser, and having made valuable improvements upon the land, it would be against equity in the Commonwealth to compel the defendant to throw off the surplus in any particular place, or do ariy thing more than compel him to pay for the surplus when the land, should be patented, or at most, to throw it off at such parts as the defendant might elect.
    
      Anszuer of the Court. To this the plaintiffs answer: whether the defendant is a bona fide purchaser without notice, and whether he has made valuable improvements, are questions for the jury. If the jury should believe some of the witnesses, viz. William Grady, the clearing was made after seeing the plaintiffs line. The law will be as the jury find the fact, with this exception, when double the quantity is returned which is "stated in the return, the jury will judge whether the fraud is not so manifest as to affect any person on the ground with notice of a fraud.
    The plaintiffs have also requested us to instruct you, See.
    
    Tod, for the plaintiff in error,
    now contended, first, that the Board of Property had no right to issue an order for a resurvey of Cadzvalader’s land without notice to him : and secondly, that t.he Court below gave no opinion oii the point proposed to them on behalf of the defendant. He further contended, that the answer was not correct, and cited 2 Sm. 
      
      ■L. 141, 142, note, 143. 164. 6 Binn. 102.407.114. 1 2 cates, 322. Boar v. Moore’s Administrators, 1 Serg: c£? Rawle, 166.
    Burnside, contra,
    insisted, that the Board of Property may at any time before the issuing of a patent, correct errors or relieve against frauds, and for that purpose, may order resurveys. On-the return of the resurvev, the party might.appear, and would be heard. He cited 2 Teates, 86. On the other point he contended, that the Court below after stating the point proposed by the defendant, having then stated the answer given by the plaintiffs’ counsel, intended to adopt the answer, and it- is to be considered as theirs. . On the subject of the correctness of the answer, he. cited Acts of Assembly, 8th1 April, 1785, Purd. Dig. 378. 3d April, 1792, Purd. Dig. 484. 13th March, 1817, Purd. Dig. 406.
    
      
       The President of the Court was absent.
    
   The opinion of the Court was delivered by

Tilghman, C. J.

I think there can be ho doubt that the evidence was properly admitted. Upon a suggestion of imposition by so great a quantity of surplus in Cadwalader’s survey, it was not only the right, but the duty of the Board to have the matter inquired into; As to notice to the defendant, it would be sufficient, if he had an.opportunity of appearing before the Board of Prbperty, and making defence, on the return of the resurvey ordered by th.em. At all events the determination of the Board was not conclusive, but might be controverted ‘ in an action of ejectment. It has always been the practice of our Courts, to. permit the proceedings of the Board of Property, even thoügh irregular, to be given in evidence, and to instruct the jury as to the legal operation of them. There was no error therefore, in the admission of this evidence. If the surveys made in pursuance of the Order of the Board of Property stand good, the plaintiffs ■ will take 100 acres of the defendant’s original survey, bqt the defendant will still hold 650 acres, under Cadwalader’s warrant for 400 acres. The plaintiffs afterwards gave evidence, that the defendant had notice of the claim under Day’s improvement, before he had cleared or improved any part of the 100 acres in dispute. After the evidence was closed on both sides, the defendant’s counsel stated several questions on which they requested the opinion of the Court to be given to the jury. It is assigned for error, that those questions were not answered, and without doubt the third, question was not, whatever may be said as to the others. The third question is stated by the Court, after which, they say, that the plaintiffs’ counsel have given a certain answer to it, which is also stated; but the Court gave no opinion of their own. It is now said, that the Court intended to adopt-the answer given by' the plaintiffs’ counsel. It may be so, but it does not appear so by the record, and therefore we cannot say that the question was answered by the Court. It is with regret, that for a slip of this kind, we are obliged to reverse a judgment, the merits of which, so far as we can judge from the evidence, were strongly with the plaintiffs. It is very clear, that a survey containing on its face 420 acres, but in fact 750, ought to be inquired into. The bare acceptance of it in the surveyor general’s office, without patent, could not be obligatory in a case like the present, where the person claiming tinder it, had notice before he hád gone to any expense, in improvements, of an adverse claim, which although it might take part, would yet leave more than appeared on the face of the draft, to be contained in the survey. These remarks are confined to the case before the Court, and by no means intended as an intimation of any opinion that the Board of Property possess a general power to cut off the surplus in ancient surveys which have not. been patented.

I am therefore of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a v.enire facias de novo awarded.  