
    Richard Smith, lessee of Ephraim Blaine against George Crawford and Henry Fore.
    Locations in the land office give no right, unless followed up with proper diligence.
    Decision of the hoard of property instituted 5th April 1782, may he contested at law. Lands forfeited by the attainder of a traitor, can only he sold by the agents of forfeited estates.
    Ejectment for a tract of land called ‘ ‘ Roscommon, ’ ’ containing 269 acres on the river Monongahelah, i.n Mifflin township.
    The lessor of the plaintiff founded his title on an application filed in the secretary’s office 6th April 1769, No. 2860, in the name of James Byers, jun. for “ 300 acres of land up ‘ ‘ the bend of Monongahelah, on the west side, near or adjoining general Braddocks’s road;” a conveyance from Byers to Blaine, dated 28th June 1769, a judgment of the board of property, on the 1st September 1783, (which was not shewn in evidence further than as recited in the plaintiff’s patent;) a warrant for the acceptance of a survey, said to have been made on the 25th November 1769, for Alexander Ross, on an application entered in his own name, 20th April 1769, No. 3116, whose right was declared to be invalidated, upon the application of Byers, dated 23d December 1784, and a patent to E. Blaine, reciting the above particulars, in consideration of 42I. 18s. iod. in common form, dated 26th December 1784.
    The defendants held under one James M’Kee, who claimed the premises under a permission granted by captain Charles Edmonstone, commanding officer at fort Pitt, dated 29th September 1768, to the said Alexander Ross, “to settle and im- “ prove a tract of laud at Braddock’s crossings, 14 miles from “fort Pitt,” the foregoing application of Ross, No. 3x16, calling for “300 acres at Braddock’s upper crossings, on the “ west side of Monongahelah, about 14 miles from fort Pitt,” and the survey returned thereon, the attainder of the said Ross of high treason in consequence of the act of assembly of 6th March 1778, a sale by public vendue by the agents of forfeited estates of Westmoreland county, (before the county of Allegheny had been divided off therefrom,) to the said James M’Kee, for 35I. on the 12th March 1784, and a patent thereon to him, reciting the above particulars, dated 29th December 1785.
    *2881 * ^ n°t appear in evidence, that the lessor of the -* plaintiff, after the conveyance made to him by Byers, took any steps whatever to obtain a survey, or file a caveat against the survey of Ross, or use any diligence in following up his pretensions to the land, until he obtained the judgment of the board of property in 1783; but how the controversy originated before them was not shewn, or whether any person was notified, or did appear in support of the claim, late of Alexander Ross.
    But it was proved by several witnesses, that the said James M’Kee first seated himself on the land, and began to build a cabin about' Christmas 1768, which was finished in 1769, after the office opened, and originally held it by what he falsely called an improvement, which he had continued by himself or his tenants up to the present period, and that at the time of commencing the ejectment he had a good house, barn, stables, some meadow ground, and above 60 acres of land cleared on the farm, that his father had sent to Philadelphia applications for several tracts of land for his sons, and amongst others one for the tract in question, to be entered in the office, which had miscarried, but that under an impression that the locations had been sent by mistake to a wrong surveyor, the survey had been actually made for the said James M’Kee, his son, and John M’Kee his brother had paid 5I. for the surveying fees.
    It was also proved by Michael Huffnagle, esq. one of the agents of forfeited estates, that the premises had been advertised for sale by order of the Supreme Executive Council, and were publickly sold at Pittsburgh by outcry, on the 12th March 1784, (no one setting up or pretending any adverse claim or title,) to’the said James M’Kee, for 35I. who paid him the consideration money at that time, that he had made return thereof within five or six months afterwards to the council, and that in December 1785, he paid the money into the treasury, and the lessor of the plaintiff meeting him in Philadelphia, first acquainted him of his having á title and patent for the lands, and desired him not to proceed on the sale, to which he answered, that having sold and paid the money into the treasury, he was bound to go on in the discharge of his duty, that he informed the council of what had passed between himself and Blaine, but on consideration they awarded a patent to issue to M’Kee.
    It was likewise shewn, that the location of Ross was more precisely descriptive of the lands in question than that of Byers, the former being better adapted to the swell of the bottom land in the bend of the river Monongahelah. To obviate the objection, that Blaine did not give notice of his title to the lands at the sale made by the agents, it was proved that he had proceed *ed from Pittsburgh to Kentucky r*o«9 on the 2 xst November 1783, and did not return from L thence until the month of June following.
    The cause was argued by Messrs. J. Ross and Brackenridge for the plaintiff, and Messrs. Woods and Galbraith for the defendants. '
   Yeates J.

in summing up the evidence to the jury, observed, that it was incumbent on the plaintiff to make out a good title before he could recover the lands in question, and that the real gist of the controversy lay in a proper eompari-ison of the rights of Blaine and Ross, previous to either of the patents being issued. He premised, that

Applications in the land office after the opening of it on the 3d April 1769, are the inceptions of titles when duly pursued. Merely of itself such a location • creates no right. No part of the purchase money is paid. It is the bare expression of a. wish to hold certain lands, on which 7s. 6d. only is paid for the office fees of entering it. No title vests thereby, nor does it form any contract, on which the party could be sued by the proprietaries formerly, or by the state now, until a survey has been made, designating the party’s pretensions by metes and bounds. When such a location is followed up with proper diligence, it will give a right of pre-emption to the lands described therein; but any location may, like the imperfect title of improvement, (Vide act passed 5th April 1782, § 2,) be forfeited by abandonment or dereliction. When there has been negligence in obtaining a survey, a subsequent location may, by due industry, defeat its operation, as to lands which it might be supposed to describe with sufficient accuracy and certainty.

If these general rules are correct, as it is presumed they are, the application of them to the case before us, is familiar and easy. The plaintiff’s location does not precisely describe these lands. It calls for the land in the bend of the river. That of the defendant’s is more close and descriptive. The plaintiff has been guilty of gross laches and neglect in laying by for fourteen years without getting a survey made, or making any pretensions to the lands, during which period they have been rendered much more valuable, by the labours of the occupier. Ross gets a survey returned, which appears however to have been made in 1769, for James M’Kee, and paid for by his agent. If the plaintiff has suffered a survey *2901 ma<^e> though he might originally have * included J the lands in question, and not entered his caveat in due time, or made his objections thereto, he shall be postponed. Such is the practice of all courts and juries, and of the land office, and ought to be so on general principles of convenience to the community. For no one should be permitted under a general, though early application, to thumb the face of a whole country, and retard its settlement and cultivation by his own negligence.

The question then, if determined on the relative merits of the titles of Blaine and Ross, immediately before the latter joined the common enemy, will admit of an easy solution. The maxim ‘ ‘ vigilantibus non dormientibus leges subser-viunt,” applies with peculiar force in the case of rights founded on locations. I throw out of view the permission of captain Edmonstone, as it does not appear that a settlement attended it, but an adverse possession has been shewn in evidence.

The judgment of the Board of Property cannot alter the nature of the title. What grounds they proceeded on, we know not. But this we know, that the parties interested have a legal right to contest their decision in a court of law, by the express words of the act of assembly of 5th April 1782. No caveat, or judgment of the Board of Property is produced on the part of the plaintiff. It does not appear that any notice, previous to the hearing, was given to the attorney general, the agents of forfeited estates, or to any executive officer whatever. We must therefore conclude it to be ex parte; nor can I bring myself to believe, if the Board of Property knew as much of the case as we are now possessed of, they would have given such a judgment. Be this as it may, we must now form a judgment for ourselves, on the whole of the facts given to us in evidence.

By the attainder of Alexander Ross for high treason, his whole estate, real and personal, became vested in the commonwealth, under the 5th section of the act of assembly of 6th March 1778. And under this law, and the supplement thereto, passed 29th March 1779, the agents of forfeited estates were directed to sell the estates of traitors in a certain mode prescribed. The same laws which vested the property in the state, qualified the sale of it by the instrumentality of certain persons authorised for that peculiar purpose. And such a restriction was highly necessary for the general benefit. Otherwise, highly improved lands, lying perhaps in the vicinity of the metropolis, or in the heart of the state, forfeited by the attainder of persons who had joined the enemy, might be disposed of on the common terms of vacant and unappropriated lands; which never could have *been the will of the people. These acts are certainly more than directory, they are restrictive.

Cited in 7 S. & R., 304, in support of the proposition that lands which have been granted by the state, and which escheat and fall back to the state for want of heirs, alienage, or forfeiture for treason, or any other cause, are not open to settlement or grant, as the common unappropriated land of the state. Cited for the same purpose in 27 Pa., 38; 77 Pa., 221.

Cited in 26 Pa., 421, on the question of usage of the land office.

It appears to me therefore, that it is an insuperable bar to the plaintiff’s recovery, that he does not deduce his title through the proper and legal conduit of sale and conveyance, supposing the adverse legal title of Ross to be preferable. The agents of forfeited estates sold these lands on the 12th March 1784, and then received the money of the purchaser. It is not possible to conceive that the commonwealth, above nine months afterwards, could convey a legal right to the lessor of the plaintiff, after they had parted with their title, through the medium of the agents of forfeited estates. They could not grant what they had not; and neither the state nor an individual can do an act and produce an effect morally impossible in Itself.

My opinion, on the whole, is decidedly with the defendants ; and I have the satisfaction of declaring, that the Chief Justice concurs with me in opinion.

The plaintiff suffered a nonsuit, without permitting the jury to leave the bar. 
      
       M’Keati C. J. attended the trial in the forenoon, hut was confined by indisposition to his chamber, after the adjournment of the court.
     