
    Lessee of Jacob Welker v. Priscilla Coulter.
    THIS was an Ejectment for a messuage and 300 acres of land, in Franklin township, brought to March term, 1798.
    
    The plaintiff shewed a warrant, dated 8th January, 1773, for 100 acres of land, on a branch of Turtle-creek, on the north side of general Forbes’s old road, and on the south side of the path leading to Plumb-creek; including a white-oak, marked J. W. standing on the west side of the bottom of said branch; in Fort-Pitt township, in the county of Westmoreland. He then shewed a survey of 255 acres and the allowance, made, on this warrant, 25th June, 1773, by Eli Coulter, deputy of Robert M'Crea, who was deputy surveyor of the district in which the land is.
    The defendant, (who is the widow of Eli Coulter) claiming under the same title produced a conveyance, dated 26th July, 1787, for the consideration of 20l. by Jacob Welker to Eli Coulter, of this warrant and all the land surveyed or to be surveyed on it; and a patent to Eli Coulter, on the survey made by him, dated 31st March, 1789.
    The plaintiff’s counsel then proposed to prove, that the conveyance from Welker was fraudulently obtained. And evidence was given, that, in April, 1787, when a deputy surveyor came to make a survey of this land for Welker, on his warrant, E. Coulter represented, that he had a survey of it made on an early location, and that perhaps then there was a patent; that, however, as he could lay Welker's warrant on adjoining land, which would be useful to him, he would buy his warrant, and put an end to dispute ; that he did then buy it, for 20l. and had a survey of 40 acres adjoining made on it; and that he afterwards returned his former survey of 255 acres on Welker's warrant, and took out a new warrant for the 40 acres.
    It was then proved for the defendant, that E. Coulter had an old improvement and settlement, which had been begun in 1772 ; that a cabbin was then built, and three acres of land deadened. In 1773 Coulter and another man with him worked occasionally on the land, cleared out the three deadened acres, sowed that with turnip seed, and, in the fall, with rye. In 1774, the inhabitants of that part of the country were driven off by the Indian war. In the spring of 1775, Coulter put a tenant on this land, who resided on it, cleared out the old ground and 5 acres more, planted 4 acres in corn, and that and all the rest in fall grain. In 1776, another field of 4 acres was cleared by Coulter. In 1777, Coulter’s tenant was driven off by the Indian war; and that part of the country being generally deserted, till after the war, nothing more was added to the improvement, till about nine or ten years ago, when Coulter put a tenant on it, who yet remains. There are now 30 acres of up-land, and 10 acres of meadow, cleared, fenced, and cultivated.
    
      Coulter had no tenant living on the land in 1787, when Welker came to survey; and there was contradictory testimony as to the extent of his improvement in 1773, when Welker first visited the land, found Coulter working on it, and told him he had a warrant for it.
    There was testimony also, that, at the time of making the purchase of Welker’s warrant, Coulter represented his title as resting on his settlement; but said also; should that fail, he had, or he could have, an old location ; the witness who proved this did not hear him speak of a patent, but had heard him say, before he saw Welker or knew any thing of his claim, that he had a location in the name of James M'Clure. Coulter’s survey was made in 1772. He died seven or eight years before this ejectment was brought.
    The description in the warrant did not precisely and exclusively designate this land, and there was no evidence of a tree marked J. W. on it.
    
      Brackenridge and Morrow, for the plaintiff,
    stated, that the purchase being founded on a gross misrepresentation, a suggestio falsi, by Coulter, in saying he had a title, when it is evident that he had none, is fraudulent, and therefore void: and the title of Welker stands as if he had made no conveyance.
    No subsequent transactions will confirm a fraudulent bargain, nor length of time bar a claim of relief against it. Equity relieves against a mistake or misapprehension of title, against undue advantage taken of necessity, or where weakness of understanding founds a presumption of undue influence.
    
      
      1 Wils. 239. 1 Fonbl. 113, 128.
    
    1 Wils. 320. 1 Fonbl. 322, 106, 60. 1 Wils. 295.
    
      2St. L. 282.
    1 Fonbl. 319.
    
      Young and M'Keehan, for the defendant.
    The act of assembly bars any action for land, on a claim founded on a warrant without a survey, unless the party has been in possession within seven years. It is in proof, that Welker never had a survey nor possession. Laches are not indulged. Welker has lien by an unreasonable time, not only during the life of Coulter, but since his death ; and there is reason to suspect, that he is not the person really interested in this suit, and that others have stirred it up. If E. Coulter had been now alive, he could have explained and established the representation of his claim, which he made to Welker : and we are not to believe, that, before his purchase of Welker’s warrant, Coulter had no location for this land, because he afterwards returned his survey on this warrant. He had paid a great price for the warrant, and was right in making the best of it. It has been a very general practice in this country, for persons who had old locations, in order to evade the payment of interest on the purchase money, to take out new warrants for their land. When the state had given the Virginia claimants their lands fo cheap, it was thought by the Pennsylvania settlers, that the cheapest method to them was fair.
   President.

It is not necessary to embarrass the deliberations on the facts with any consideration of the limitation of this action, as, it being clear that the plaintiff never was in possession, this is a mere question of law.

If E. Coulter obtained the conveyance from Welker by a fair contract, or, though the contract was not fair, if, at the time of the purchase, he had a better title than Welker, there must be a verdict for the defendant.

It is generally understood, that many possessed of old locations have abandoned them, and taken out patents on new warrants. How far this is a fair practice, as respecting the state, is not material, in this action, to enquire. You have evidence, that before Coulter knew of Welker’s claim, he said, that he had a location in the name of one M'Clure. This may have been true, and on this location he might have intended to return his survey of this land. But after the purchase of Welker's warrant, for which 5l. sterling must have been paid to the Land-Office in 1773, he might have thought it more advantageous to abandon this location, or apply it else-where, and return his survey on Welker's warrant. If such be the truth, the transaction is fair, and Coulter’s title good.

But if E. Coulter represented to Welker, that he had an old title, when, in fact, he had none; and if this was the only or the principal motive which induced Welker to sell his title; if, without this motive, Welker would not have transferred his claim; this is such a fraud as renders the purchase void, and all the title, which Welker then had, yet remains in him.

But as fraud in Coulter cannot make Welker’s title better than it was, and every plaintiff in ejectment must recover on the strength of his own title, even though this purchase were fraudulent, if Coulter had then a better title by a prior settlement (or location and survey) his fraudulent purchase of the warrant will not destroy his prior title by settlement.

This warrant is not so specially attached to this land, by its description, as clearly to point out this as the land claimed by it, and exclude any other title from it. Before a survey made on this warrant, it does not exclusively affect this land. Coulter returned his survey on Welker's warrant, in consequence of his purchase of this warrant: and, if the purchase be void, Coulter’s survey must be detached from Welker’s warrant. Welker never made a survey on this warrant; and he made no attempt to survey, till in 1787; and before that, and certainly in 1775, an actual settlement was made by E. Coulter.

The jury returned to give a verdict, but the plaintiff being called, appeared not: and there was judgment of nonsuit.  