
    Gonzalus and another against Hoover and another.
    
      Monday, July 3.
    to the jury by against whom the Board ?s°f given in evithe grónndseW upon which they proceedcd. An ex parte deposition before the Board of Property, may be read
    of a descrip-61' wlthoutsur* vey, who has thermits of ins claim by marked boundaries, taken up his residence on the lar^quantity* and cultivated ft"1s\npo°ssessi°n[0ftthet and if a third nothing-short of 21 years adverse possession, will bar the entry of . the warrant aeMeisno30 within the meaning of the 5th section of the act of limitations of 26th March, 1785.
    It is not the law of Pennsylvania, that by obtaining a patent, and selling to a purchaser for a valuable consideration, all enquiry as to adverse claims, founded on an equity arising previous to the patent, and of which the purchaser had no notice, is precluded. The title under the patent, may he controverted by one who claims under an imperfect title depending on a settlement, warrant or location without patent, and then the question will be, to whom the patent ought to have been granted by the land office.
    Constructive notice is matter of law for the decision of the Court; but if the Court leave it to the jury to decide, whether the defendant had received notice, actual or constructive, and at Ihe same time inform them, that notorious possession is constructive notice, it is not error.
    In Error.
    EJECTMENT for a tract of land.
    This cause was tried at a special Court for the county of Centre, held on the 21st October, ,1817, when it appeared, that the plaintiffs in error, who were also plaintiffs below, c^aimed under a location of the 3d April, 1769, No. 158, in the name of Benjamin Brown, for “ 300 acres of land on north side of Bald Eagle Creek, bounded by the Creek on the SOuth, the Narrows on the north, and the improvement of 7 7 r James Gould on the west, about five miles below the Bald Eagle Old Town.” On the 26th April, 1784, Brown conveyed t0 Richard Gonzalus, who soon after entered on the land, made improvements, and built a house, in which he resided; and remained in actual possession of the greatest par(; 0f the ianci from that time to the time of bringing ... u this ejectment, *
    defendants claimed under two locations of the 3d April, Í769; one of them, No. 1347, in the name of George Knight, the other, No. 1976, in the name of John Wilson. These locations were the property of Samuel Wallis, from whom the defendants deduced their title; and surveys were on them, by Charles Lukens, deputy surveyor, on the 8th and 9th November, 1769. On the 31st October, 1783, , patents were granted to Warns.
    
    The plaintiffs gave evidence tending to prove, that Brown's location was descriptive of the land in dispute, and that in fact, Charles Lukens, the deputy surveyor, did in-elude it in a survey made by him on Brown’s location, which survey, he afterwards improperly returned for Samuel Wallis, on one of the locations before mentioned. The plaintiffs also gave evidence to shew, that Charles Lukens, had ° , . — by mistake, given the draft of this survey to George J?rey9 who had a location for land on Bald Eagle Creek, in consequence of which, Frey claimed it. But Lukens afterwards corrected the mistake, and returned a survey on Frey’s location in its proper place. Brown, knowing that Frey claimed the land now in dispute, entered a caveat against him on the 15th March, 1771, which was depending until the 3d November, 1788, when it was agreed between Gonzalus, who had purchased of Brown, and George Frey, that Gonzalus, was to withdraw the caveat, and relinquish all claim to the survey which had been made on Frey’s location, in its proper place, (higher up the Bald Eagle Creek,) and Frey was to relinquish all claim to the land on which Gonzalus lived, which was the tract comprehending the land now in dispute.
    On the trial, the defendants’ counsel offered Lawrence Bathhurst as a witness, to prove, .that in the year 1786, one Paul Wilcot, lived on the land in controversy, how long he lived there, and who came into possession after him. The plaintiffs’ counsel objected to that part of the evidence, which went to prove who succeeded Wilcot in the possession. But the Court overruled the objection, and admitted the whole testimony; upon which, an exception was taken to their opinion.
    The defendants having given in evidence a caveat, entered on the 6th .November, 1788, by Richard Gonzalus, against James Packer, who had purchased Wallis’s title, and the following decision of the Board of Property on the 4th May, 1789, “ It appearing, by the affirmation of Samuel Wallis, Esq., that Benjamin Brown, under whom Gonzalus claims, in the year 1769, set up a claim under that application, to a tract in a different place from that now claimed by Gonzalus, and that a part of the land now claimed, is already patented, therefore, his caveat is dismissed, and a patent allowed to Packer,” the plaintiffs’ counsel proposed to .read to the jury the deposition of Samuel Wallis, referred to in the decisión of the Board of Property. To this, the defendants objected. The Court sustained the objection, and sealed a bill of exceptions.
    After the evidence was closed, the Court, (Chapman, President,) delivered a charge to the jury, of which the parts which follow, were contended by the counsel for the plaintiffs in error, to be erroneous."
    “ Whether the plaintiffs ever had a survey upon the land in dispute, is a fact for the jury to determine, and if they believe they had no survey by proper authority, there is an end to their claim; they would be barred by the statute of limitations, from the length of time the defendants have been in possession. If a person has no other claim than the right of pre-emption, commonly called an improvement right, or warrant without a survey, (and applications cannot be considered in a better situation than warrants,) by act of assembly, seven years adverse possession would bar a recovery ; and in this case, if the jury believe the evidence, the possession of the defendants has been much longer.
    c« The defendants, Hoover and Binder, are considered as the tenants of Jacob Byers and John Nisiey. Before the plaintiffs can recover, they must shew a good, legal, or equitable title to the land vested in themselves ; but the defendants are entitled to hold the possession, provided they can shew a title in themselves, or in any other person or persons superior to that of the plaintiffs, and in this case, a legal title has been shewn in Byers and Nisiey. Bona Jide purchasers for a valuable consideration of a legal estate, will be preferred to a latent equity, of which they had no notice,- either actual or constructive. That Byers and Nisiey, are bona Jide purchasers of a legal estate, has not been disputed. It therefore, becomes a question for the jury to determine, whether they have had either a constructive or actual notice of the equitable claim of the plaintiffs. By examining upon the ground, they could have found marked trees, but upon applying to the deputy surveyor’s office, they could not have found by whom the marks were made, or for wham; for it appears, that the draft corresponding with these lines, neither had the name of Benjamin Brozvn, nor any other namej and as there is no return of survey, nothing could be found in the surveyor general’s office. ' If either of the plaintiffs have had actual possession of any of this land, the Court leave it to the jury, to say, whether that would not be suffi- ' cient notice, to put the defendants upon an enquiry. Notorious possession has been considered sufficient notice. Inan. order of the Board of Property, upon a caveat against Joseph Wilson, the name of John Wilson, is inserted; but that caveat was dismissed so long since, that it could not be considered as constructive notice. Upon the whole, the jury are to determine, whether the defendants, or either of those -tinder whom the defendants claim their possession, have ever had either actual or constructive notice of the claims of the plaintiffs, before they became purchasers of the legal estate, and paid their money for it.”
    The cause was argued by Potter and Burnside, for the plaintiffs in error,
    who cited, Richardson v. Stewart.
      
       Gordon v. Moore.
      
       Lessee of Packer v. Gonzalus.
      
       Act of 26th March, 1785.
      
       Attorney General v. Grantees, Uc.
      Lessee of Willis v. Bucher.
      
       Bixler \. Baker.
      
       Lessee of Maclay v. Work.
      Duer v. Boyd. 1 Atk. 490. 2 Fonbl. 153. Sugd. 498, 499.
    Hale, for the defendants in error,
    cited Billington v. Welsh.
      Graff v. Smith's Administrators.
      
       i Wash. Rep. 41.
    
      
      
        4 Binn. 201.
    
    
      
      
         5 Binn. 136.
    
    
      
       1 Serg. & Rawle, 526.
    
    
      
       2 Sm. L. 300.
    
    
      
       4 Dall. 244.
    
    
      
       2 Binn. 466.
    
    
      
       4 Binn. 213.
    
    
      
       5 Binn. 154.
    
    
      
      
         1 Serg. & Rawle, 203.
    
    
      
       5 Binn. 129.
    
    
      
       1 Dall. 485.
    
   The opinion of the Court was delivered by

Tilghman C. J—On

the trial of this cause, in the Court below, the counsel for the plaintiffs took two bills of exceptions, and they have now made three' objections to the charge of the Court.

First bill of exceptions. The defendants offered to prove, by the testimony of Lawrence Bathurst, that in the year 1786, .a certain Paul Wilcot, lived on part of the land in dispute, and also to prove, how long Wilcot lived there, and who were in possession after him, and generally to prove, who were in possession from time to time. The plaintiffs objected to any evidence of possession, after the time of Wilcot, but the Court overruled the objection, and admitted the evidence. It was very material for the defendants to prove the possession, as they depended on the act of limitation, nor do I see any reason for rejecting the evidence of possession after the time of Wilcot. Indeed, the plaintiffs’ counsel have not insisted on this exception, as the bill is so drawn, as to omit the point on which their objection was founded.—They say, they intended only to object to the evidence of any possession after Wilcot, unless it was shewn, that such subsequent possession was so connected with Wilcot, as to be a continuation of his possession. But as the exception is not so stated on the record, it is now relinquished.

Second bill of exceptions. The defendants gave in evidence, a caveat by Richard Gonzalus, against James Packer, £who had purchased of Samuel Wallis,') entered in the land office, 6th November, If88, and the decision of the Board of Property thereon, 4th May, lf89, to the following effect. « It appearing by the affirmation of Samuel Wallis, Esq., that Benjamin Brown, under whom Gonzalus claims, in the year lfff9, set up a claim under that application, to a tract in a different place from that now claimed by Gonzalus, and that a part of the land now claimed, is already patented; therefore, his caveat is dismissed, and a patent allowed to Packer.” The plaintiffs then offered to give in evidence, the deposition of Samuel Wallis, referred to in the decision of the Board, to which the defendants objected, and the Court rejected the evidence. If this evidence was material in any point of view, it ought to have been received •, and that it was material to one purpose, is very evident. The decisions of the Board of Property are allowed to be read in evidence, but are not conclusive. ■ The Court and jury allow them just such weight, as in their opinion they deserve, and no more. It is of importance, therefore, to shew all the circumstances-attending those decisions—whether they were made ex parte, or after hearing the parties, or giving them due notice— whether the evidence before the board was legal, and pariicularly, whether it was ex parte. Now the plaintiffs contend, that this deposition of Samuel Wallis, was made before his brother, Joseph J. Wallis, without notice to Gonzalus. If that was the case, the decision of the Board, which professes to be founded solely on that evidence, was of very little weight. I am therefore very clear, that the evidence ought to have been admitted. Indeed this very point was decided by this Court once before, when a former judgment in this cause was reversed, and a venire de novo awarded. I presume that this decision was unknown to the Court of Common Pleas, or they would have spared us the trouble of deciding it over again,'and spared' the parties the delay and expense attending another trial.

I will now consider the objections to the charge of the Court.

1. The President charged the jury, “ that if they should be of opinion, that the plaintiffs had no survey made by legal authority, seven years adverse possession would bar them, by the act of limitations ; and in this case, if the jury believed the evidence, the possession of the defendants had been much longer.” Before I examine the correctness of this opinion, it will be proper to consider, what the evidence was. The defendants had been proved to be in possession of a small part, to recover which, this suit was brought, and the plaintiffs had been in long possession of the residue of a tract of land, claimed under a warrant alleged by them to be descriptive, and the boundaries whereof had been proved to he ascertained by marked lines. The act of limitations, f26th March, ±785, 1 Sm. L. 300,) requires 21 years adverse possession, to bar an ejectment, in generaW-but in certain cases, mentioned in the 5th section, seven 3'ears are sufficient. It is enacted, “ that any person who then had any claim to the possession of any lands, or the pre-emption thereof from the Commonwealth', founded on any prior warrant, whereon no survey had been made, or in consequence of anyT prior settlement, improvement, or occupation, without other title, should not thereafter enter, or bring any action for the recovery thereof, unless he or his ancestors or predecessors, had the quiet and peaceable possession of the same, within s.even years next before such entry, or bringing such action.” The meaning of,the act is, that in case of a warrant, the claimant might enter or bring his action, in case he bad a survey, or in case he had quiet and peaceable possession within seven years, although there had been no survey. This was thought reasonable, because it was well known, that in many instances, persons who had descriptive warrants, had entered and held the possession, without survey, and in such cases, the possession was sufficient notice, that the land was not vacant; but where there was neither survey, nor possession within seven years, it was impossible, that either the proprietary officers, or those who wished to take up vacant land, could know, that the holder of such a warrant, intended to prosecute it; aud he could liot complain, if, after such gross negligence, the law should presume that he had abandoned it. Now to apply the reason of this law to the case before us. Here, the holder of the warrant had taken possession ; had ascertained the limits by marked boundaries, and had taken up his residence on the land, cleared a large quantity, and cultivated and improved it, not only within seven years next before his action, but for many more years than seven, without interruption, up to the time of bringing the suit. Surely such a case was not within the meaning of the 5th section of the act of limitations, but would fall within the general provision which required 21 years adverse possession. This would be my opinion, if the point were quite new—But it is not so.—It came before the Court, in the case of Brice’s Lessee v. Curran, tried at Nisi Prius in Mifflin county, May, 1802, (2 Sm. L. 806.) when Judge Yeates gave to this act, the construction which I have adopted. The President of the Court below, ought to have instructed the jury, that if they thought the location to be reasonably descriptive of the tract claimed by the plaintiffs, and that the plaintiffs had ascertained the limits of their claim by marked lines, entered on the land, resided there, and actually possessed and cultivated a considerable part, within seven years next before their action, nothing lpss than 21 years adverse possession of the small part held by the defendants, would bar this ejectment. And in not so instructing them, I am of opinion that there was error.

2. The President instructed the jury, “ that the defendants, having obtained the legal estate by virtue of the patent, and being purchasers for a valuable consideration, were protected against all claims or rights of the plaintiffs, of which they had no notice.” The law of land titles in Pennsylvania, is singular. I mean of the acquisition of the original title, from the former proprietaries, or from the Commonwealth. The title under the patent, may be controverted by one who claims under an imperfect title, depending on a settlement, warrant, or location, without patent; and then the question will be, to whom the patent ought to have been granted by the land office. The law has never been held in the great extent laid down in this charge—that by obtaining a patent, and selling to a purchaser for a valuable consideration, all enquiry as to adverse claims, founded on an equity arising previous to the patent, was precluded. If a deputy survey- or, should fraudulently return for A., a survey which he had made for B; that might be enquired into, although A., had obtained a patent, and sold to a purchaser for valuable consideration, without notice of the fraud. I am sensible, that this places purchasers in a hazardous situation—but both sides of the question are to be taken into consideration.— The long practice of taking up lands, and obtaining an equitable title without patent, has so generally prevailed, that upon the whole, the mischief would be greater, if it were established as a general rule, that a patent in the hands of a purchaser without notice, would shut the door against all proof of ah imperfect adverse title, acquired previous to the patent. I am not to be understood as laying down any general rule now; it would be dangerous to do so. Most cases will be influenced by the conduct of the parties ; and it should always be expected, that he who rests on an imperfect title, should shew, that he hás not been guilty of gross laches, whereby an innocent purchaser, for a valuable consideration, has been injured. In the present instance, I am of opinion, that the charge was erroneous.

The third objection is, that the Judge left to the jury, to decide on constructive notice, which is matter of law.

To be sure, constructive notice is matter of law, and the law should always be explained to the jury. In the present instance, the Judge did leave to the jury to decide, whether the defendants had received notice, actual, or constructive, and if he had said nothing else, there would have been error. But upon viewing the whole charge, it appears, that the jury were told, that notorious possession was constructive notice; so that upon the whole, the jury were not left without sufficient instruction in law, on that point. In this part Q£ t^e cbarge therefore, there was no error. Upon the w^°^e’ * am opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  