
    Graham and another against Moore and others.
    In Error.
    
      Monday, October 12.
    ON a writ of error to the Court of Common Pleas of Cumberland county it appeared, that this was an ejectment brought by John Moore and others against William Graham and Samuel Eccles, to recover possession of a tract of land . . , . . contammg 129 acres ISO perches, situate m Middleton ship. The plaintiffs below claimed under a warrant to James Moore, for 50 acres, adjoining his other land and Wal7 j %i tj ter Deany in Middleton township, Cumberland county, dated June 9th, 1763, on which they alleged a survey had made by John Armstrong, deputy surveyor, the draft of which was burnt among his official papers, when his house was destroyed by fire in the month of November, 1763. support of this allegation, they gave evidence of several surveys as early as the year 1766, calling for the land in dispute as surveyed land. They also gave evidence, that the r J jo ' said James Moore held another tract of land on which were a mill and valuable improvements, surveyed in the year 1766, by virtue of a warrant granted in 1751. This tract contained J , . -T.L 567 acres, and was contiguous to the land in dispute, ihey further gave evidence, that William Graham, one of the defendants, a relation of William Moore deceased, who claimed both the above-mentioned tracts by a title derived from the said James Moore his father, was placed by the said William . Moore, as a tenant on that.part of the larger tract which was adjoining to the land in dispute. Graham cleared land over the dividing line of the two tracts, and having lived many years on the larger, he removed to a house built on the land in dispute, where he remained a long time as the tenant of William Moore during his life, and of the plaintiffs who claimed under him, after his death. At length Graham, considering the land in dispute as vacant, because, as he supposed no survey had been made on James Moore's 50 acre warrant, and because, as he also supposed, the warrant did not call for the land in dispute, took out a warrant on the 3d February, 1812, and on the 15th of the same month laid it on the land. The plaintiffs entered a caveat against the survey on this warrant, and the parties were heard before the board of property, who decided in favour of the plaintiffs. In consequence of this decision, a survey was made and returned for the plaintiffs in the year 1812, by virtue of which they now claimed.
    
      The Court are not bound to answer an tion^without" applyingtbe general prinforeThejury, and making such observations and dis-deem neces-
    totally63j abandonedungive no’r^[. b?tltmay g,ve a perfect right, if it has iíéTson^ able time by a survey, which has been desouTdfefouhof thewammtee; or it may give a even ■without a survey, if it describe the land with reasonable certainty, and the warrantee has taken possession under it, designated the boundaries in such a manner as to be well known to the neigh» tours, and retained a continued possession until the time of his survey in 1812.
    If the proprietor of a surveyed tract, passes over his line and cuts wood on the vacant land of the Commonwealth, he not only acquires no title to the vacant land, but is to be considered as a trespasser. If, however, he has enclosed the land, he may defend his possession against an intruder, without right; for where both are trespassers, potior est conditio defendentis.
    
    The draft of a deputy surveyor is only prima fads evidence of the situation of an adjoining tract, for which it calls as a boundary.
    A tenant, who endeavours to deprive his landlord of the benefit of possession, under a fraudulent pretence of giving it up, is still to be considered as a tenant, and cannot defend himself against hi& landlord in an ejectment, brought to recover possession.
    A person who comes into possession under a tenant, is in no better condition than the tenant, himself, and cannot defend his possession against the landlord»
    
      Some time before this suit was brought Graham gave notice to the plaintiffs, that he would give up to them the possession of the land which he held as their tenant, and it was contended on the trial, that he had given it up. On the other hand the plaintiffs denied that he had surrendered the possession, and insisted that instead of doing so, he had moved the fence, so as to throw his house out of the enclosed land, which he had occupied as the tenant of the plaintiffs, and retained possession of the house, alleging that it stood on vacant land.
    The defendants gave evidence tending to shew, that the land in dispute was not the land called for by James Moore's 50 acre warrant; and that James Moore had claimed other land by virtue of that warrant, and they relied much on the survey of Moore's larger tract, which they contended called for land lying in a different place from that now claimed by the plaintiffs.
    
      Samuel Eccles, the other defendant, came in under Graham.
    The Court were requested, by the defendants’ counsel, to charge the jury on the following points.
    
      First point. That a warrant dated June 9th, 1763, on which no survey has been made until the 17th September, 1812, gives no right against a warrant dated February 3d, 1812, and surveyed on the 15th February, 1812.
    
      Answer. In the abstract, and without reference to this cause, this question might be answered m the negative. But we think a warrant reasonably descriptive of -the land, if it was early followed up by a survey, which has been destroyed without the fault of the warrantee, and of which the defendants had notice, would support this ejectment. If, however, the fact of a survey, which is submitted to the jury, should not be established, we think the ejectment may be supported, if the warrant was followed by quiet and undisturbed possession, particularly if the land was in the occupancy of the defendants as the tenants of William. Moore, and after his death, of the plaintiffs, who claim under him; and if it was designated by surrounding surveys, calling for it as the land of Moore.
    
    
      Second paint. That a tenant clearing over the patent line of his landlord, on the vacant land of the Commonwealth, can gain no right to such land.
    
      Answer. A tenant clearing over a patent line, accidentally, or by the direction of his landlord, into the vacant land of the Commonwealth, in itself and unattended by other circumstances, would not acquire any right to such land; perhaps, if a part were enclosed and reduced absolutely into possession, it might be defended against an intruder without right.
    
      Third point. That the words, “ the other land of James Moore J marked on the outside of the diagram of the survey made in 1676, on James Moore’s warrant of 1751, is such a designation of the land then claimed by James Moore, in right of warrant of the 9th June, 1763, as binds him to that particular place, and that the proprietaries and the Commonwealth were at liberty to grant any other land than that so marked on James Moore’s survey, to any other person.
    
      Answer. We cannot say such evidence would be conclusive, as one of the boundaries of the survey touches the claim of the plaintiffs. .Whether the warrant is descriptive or not, and whether the land is called for by it, are submitted as far as they are material, with the remarks of the counsel i'especlively, to fhe attentive consideration of the jury.
    
      Fourth point. That a tenant, after having delivered up possession of the land, agreeably to his lease, is no longer a tenant; but has a right to enter upon the land and maintain any right he may have acquired, either by descent or by pur- . chase from a stranger.
    Answer. A tenant, who has fairly delivered up possession of the demised premises, by quitting the same, and notifying his landlord thereof, can no longer be considered in the relation of a tenant. But if, with a fraudulent intent, he gives such notice, and in contravention thereof holds possession, and builds a house within the actual enclosures occupied by him as tenant; if he has never removed from the premises, and has declared he never would, until compelled, he cannot defend himself as a stranger, nor prevent, by any pretence, under such circumstances, his landlord from regaining possession.
    
      Fifth point. That William Graham, jun. not being a tenant, had a right before the 15th February, 1812, to enter upon the vacant land of the Commonwealth, and improve the same, and continue that improvement with intent to consummate his title.
    Answer. The Court has no evidence in this cause, of his right, if he has any, further than that the defendants, by an admission of their counsel, were in possession. The name of William Graham, jun'. is not mentioned by any witness in the cause, nor any title given in evidence under which he claimed. If in possession by, or under Eccles, he must be considered as an intruder, and with the warrant and continued possession for more than twenty-one years, with the lines ascertained in the manner herein-before stated, a re-survey under the direction of the board of property, would, against such a person, support the ejectment.
    The defendant’s counsel excepted to the opinion of the Court, and on the removal of the cause to the Supreme Court, it was argued by Metzgar and Watts, for the plaintiffs in error, and by
    
      Mahon and Carothers, for the defendants in error.
    They cited Lowry v. Gibson.
      
       Kyle's lessee v. White.
      
       Steinmetz v, Toung.
      
       Jackson v. Dobbin.
      Merchant v. Millison.
      
    
    
      
       2 Sm. L. 152, 3.
    
    
      
       2 Sm. L. 165. 1 Binn. 246. S. C.
    
    
      
       2 Sm. h. 166. 2 Binn. 523. S. C.
    
    
      
      
         3 Johns. 223.
    
    
      
       2 Sm. L. 165. 3 Teates, 73. S. C.
    
   Tirghman C. J.

after briefly stating the case, and readIng the first point proposed, and the opinion of the Court below on it, delivered the opinion of this Court, as follows This was an abstract question which the Court are never bound to answer, without applying the general principle of law to the case before the jury, and making such observations and distinctions as are necessary. Thus, after saying that this question, might in the abstract, be answered in the' negative, the Court went on to explain to the jury, that under .certain circumstances, the same question might be answered in the affirmative. A warrant dated- in June, 1763, and totally abandoned until September, 1812, might give no right, and yet it might give a perfect right, if it had been followed up in a reasonable time, by a survey which had been destroyed without the fault of the warrantee, or it might give a right even without a survey, if it described the land with reásonable certainty, and the warrantee took possession under it, designated the boundaries of the land in such a manner as to be well known to his neighbours, and retained a continued possession until the time of his survey in 1812, and more especially it would entitle the plaintiffs to recover against the defendants, if they came to the occupation of the’ land in dispute, as tenants of the plaintiffs. Now this is just what the Court said, and, in my opinion, with great propriety. In the case of Blaine v. Johnson, 3 Binn. 103, it was laid down for law, that a notorious and well established possession, under a location descriptive of the land, was. an appropriation sufficient to support an ejectment. Whether there.had been such a possession in the present ^instance, was a question for the jury, but the charge of the Court was, in point of law, correct. ,

2. [Here the Chief Justice read the second question, and the answer of the Court.]

If the proprietor uf a surveyed tract, passes over his line, and cuts wood upon the vacant land of the Commonwealth, so far from acquiring a right to the vacant land, he is to be considered as a trespasser. The second question was, therefore, answered rightly. But after answering it, the Court proceeded to say, that “ perhaps, an inclosed piece of land might be defended against an intruder without right.” This is surplusage. 'An opinion was not asked on such a case. The law, however, was not mistaken. Where both are trespassers, potior est conditio defendentis.

3. [Here he read the third question, and the answer of the Court.] J

The draft of James Moore’s larger tract, called for his other land, (the land in dispute,) on one of its lines, where Ephraim Blaine has a survey; therefore, the defendants inferred, that' the land in dispute was taken away by Blaine’s survey, and the plaintiffs had no right to shift it; and they insisted, that the plaintiffs were estopped from denying what was asserted on the face of James Moore’s draft. In this they went too far. The draft is evidence, but not conclusive. It is the act of the surveyor, who may possibly have been mistaken as to the owner of the adjoining tract. Besides, there was a particular reason why the plaintiffs should not be concluded from locating the land in dispute as they have done; part of it does, in fact, adjoin James Moore’s larger tract, on the line which calls for it, although Blaine’s survey, also, adjoins another part of the same line. After all, the situation of the land in dispute, and whether it agreed with the description in the warrant, were facts to be decided by the jury, and the Court submitted it to them.

4. [Here he read the fourth question, and the answer of the Court.]

This point is too plain to admit of argument. A tenant who contrives to deprive his landlord of all the benefit of possession, under a fraudulent pretence of giving it up, cannot be said to have complied with his duty.

5. [Here his honour read the fifth question, and the answer of the Court.]

In this question, the defendants assume the fact of William Graham, jun. not being a tenant. The Judge says, that no such man as William Graham, jun. was mentioned by a single witness in the cause, nor was there any evidence of title in him. But, if he came in, under Eccles, who came in under William Graham, jun., who was the tenant of the plaintiffs, he is in no better situation than the tenant, and cannot defend his possession against the landlord. And at all events, after the long possession of the plaintiffs under James Moore’s 50 acre warrant, (if th'e jury should think the warrant descriptive, and should believe the plaintiffs witnesses who swore to the possessipn,) the plaintiffs would be entitled to recover. This question is not answered so distinctly as it might have been. Yet as it is in substance said, that William Graham, jun. .could not withstand the plaintiffs’ action, and considering the situation in which he stood, it appears, that the plaintiffs were entitled, to recover against him, the jury could not have been misled to the injury of the defendants; and, therefore, there is no cause for reversing the judgment, for any defect in this part of the opinion.

Upon the whole of this case, I am of opinion, , that the judgment should be affirmed.

Judgment affirmed.  