
    Collins and others against Rush.
    In Error.
    
      June.
    
    The eon; °-struotionof any written instrument is the exclusive province of the Court, but the description of Veyeci" ¡ts°n" lim,t!1 amI contents are often mixed 'i^rámi fact
    .■Jr(ie Plai“" tiffs in error cannotcomn!oñs answers Court favour,
    vourofthe jn a former bringing a new ejectment short of the period allowed by the Statute of Limitations, will not of itself authorise the jury in such second ejectment to annex a condition to their verdict for the plaintiff, that he shall pay the defendant a certain sum for his improvements made since theaward.
    And if such verdict be given, the Court on error brought by the defendant below, will reverse the judgment entered upon it, ’
    ERROR to the Court of Common Pleas of Lycoming . ... . . r . county, m which a bill of exceptions was returned to the answers of the Court to certain questions.
    The suit was ejectment-brought to September;‘Term, -by Moses Rush against Rhodá Isaac and William Collins, to recover four hundred acres of land in Lycoming county.. The ^ ° J plaintiff claimed by deed of assignment to him, in July,-1815, from Mary Reed, to whom a warrant was granted on the 22d September, 1792,.and a survey was made thereon, on the 23d r 7 , r 1 .- . November, 1793. The defendants claimed by improvement, and also set up a possession under the Statute of Limitations. A warrant was given in evidence, granted to William Collins and Samuel Carpenter iii 1795, on which a survey Was made, excluding the land in question: but the defendants tended that these were the acts of Carpenter, without’the knowledge or consent of Collins. The facts of the case, did not appear otherwise, than as they were stated in the opinion of the President of the Court below, filed at the request of the defendants, agreeably, to the Act of Assembly. This opinion stated that the question, what title Moses Rush could acquire under the deed of assignment to him, was a question of law, for the decision of the Court, and the Court were of opinion, that Moses Rush, by this deed .of assignment to him, acquired a legal title to all the estate before owned by Mary Reed. And if any equity under the circumstances, upon a r¿covery. by Rush,, could be claimed by Mary. Lee, (late Mary Reed,) the defendants have nothing to do with that. Her selling to Moses Rush., subject to any interference or incumbrances, is placing the risk of the law suit upon Rush, and whether he succeeds or not, she must be paid the purchase money. The opinion further stated, that the defendants had given in evidence, a record of a suit of Mordecai Lee, and Mary his wife late Mary Reed against William Collins, which was referred and an.award made in-favour of William Collins, to certain lines marked on a diagram filed. This award was made upon the 4th May, 1808. u It has been contended by the counsel for the defendants, that Mary Lee late Mary Reed, having acquiesced in this report till September, 1815, the time this ejectment-was commenced, and that in the mean time,' the defendants having made considerable improvements upon the land in dispute, the plaintiff-ought not. now to recover. It is in evidence that Maipy Lee lived in Berks county, and there is no evidence that she knew of the improvements progressing. But Samuel Carpenter, who acted as her agent, lived in the neighbourhood. Under these circumstances, there may be some equity in favour of the defendants. Tobar the right of the plaintiff requires two judgments. One award,-and one judgment upon it, is not sufficient. The award cannot be considered as of more validity than the verdict of a jury, and .two' verdicts, .and judgments upon them, are necessary to bar the plaintiff from another action.”
    The defendants prayed the Court to instruct the jury
    • 1st. That if they believe that William Collins, when he settled, claimed four hundred acres, and has continued that possession -adverse to the plaintiff for twenty-one years and upwards, before this ejectment brought, the defendants have a right to hold that quantity, and the plaintiff is not entitled to recover. • .
    2d. That if a person settles adversely, and continues in possession for twenty-one years and upwards, and-claims all along four hundred acres, he is entitled to hold that quantity, although he had no survey made until the year 1809; if the jury are satisfied the land he now claims, was the same he intended to claim, when he first settled, and whát he always continued to claim, and had surveyed-seven years before the ejectment brought. -
    3d. That if the jury believe Mary Reedonly conveyed, and intended to convey the land outside the claim of. the defendants, and that that .was the only land the plaintiff purchased, then the plaintiff is not entitled, to recover. .
    4th. That if they believe, the warrant to Carpenter and Collins was taken out by Carpenter, without the' knowledge or consent of Collins, and that he protested against that survey, and refused to acquiesce- therein, and continued in possession without any regard to it,, he is not bound by-that warrant or Purvey. . ,
    5th. That an improver finding a survey interfering with a part of his claim, if he purchases the suryéy tp quiet the title to that part, it will not preclude him from holding the other part of his claim-by-improvement.
    - Answers of the Court.—The Court answer in the affirma- ' tive, that' if defendants or those under whom they claim,. have had twenty-one years. adverse possession. before this ejectment brought, the plaintiff cannot recover.
    2. To this point the Court answer in the affirmative. If the jüry believe the statement supported by the evidence in the cause. :
    3. By Mary Lee’s assignment, a legal title is conveyed to Moses Rush, the plaintiff, to the full extent of Mary Lee’s, formerly Mary Reed’s, survey.
    4. If the j ury believe that this statement of facts, is supported by the evidence in the cause, Collins would not be bound by the warrant and survey. / ’
    5. It will not preclude him holding, the other part of his claim by improvement, unless he has already acquired to the full extent of his improvement right..
    
      Upon one of this jurymen enquiring of the Court at the conclusion of the charge, whether the jury could allow to the defendants any thing for their improvements made since the reference, and before this action brought, the Court answered,'that if the jury believe that there has been an unreasonable delay in bringing this ejectment after the decision by reference, and in the mean time, the defendants have made valuable improvements, it would give them such an equity that the jury may allow a reasonable sum for those improvements, if they are satisfied that the land is increased in value by the labour of the defendants.
    The following verdict was given by the jury. “The jurors in the above cause find for the plaintiff. The plaintiff .to pay the defendants 300 dollars for the improvements made on the land between the time of the arbitrators making the report (by an apparent acquiescence therein) and the time of bringing this ejectment. The 300 dollars to be paid before any writ issues to dispossess them.”
    Burnside, for the plaintiffs in error, contended,
    1. That the Court ought to have submitted to the decision of the jury the intention of Mary Seed in her assignment to the plaintiff. •
    .2. The Court did, not answer the 1st, 2d, and 4th questions. ~
    3. The answer of the Court to the question of the juror was obviously erroneous^ and the jury had no right to give the defendants an indemnity for them. It is true it may be said that the charge was in this respect favourable to the defendants, and therefore we cannot assign it for error. But the fact is not so. The jury were probably induced to give a verdict against the defendants on the presumption that they would be paid for their improvements, if the plaintiff had a good title, he ought to have recovered without being compelled to pay any thing. If his title, was bad, he ought not to have recovered. Nor is it an objection in point of law that we assign for error a decision in our favour. 2 Cranch, 126. ■. If the error be the fault of the Court, the party who has advantage by it, may assign it for error. 2 Bac. Ab. Tit. Error. '
    
    
      
      Campbell, for the defendant in error,'
    was relieved by the Court from speáking to the first error assigned.
    2. He contended, that the first, second and fourth ques-. tions were all answered. . ’ ' •
    2. The question of the juror was irrelevant to the issué joined, which was only as to the title to the land; and as’to ..that, the verdict is complete. '• If the charge is correct so far as concerns the issue tried, the judgment cannot be. reversed, because it is incorrect on other points not material to the issue. Miman v. Kap, 5 Binh. 73; It is ■ not error, if an erroneous opinion is given on an abstract point not arising out of the evidence. Deal v. MiCormick, 3 Serg. Rawle, 343. Besides, this Court may affirm the judgment as to the recovery of the land, and reverse it as to the residue.' In dower, á judgment erroneous as to the damages may be reversed as to-that, and remain.as to the land. 2 Bac. Ab. (Wile.' Ed.) SOI, ' , '
    Reply__The quéstion proposed by the juror was. very material. The defendants probably lost the land by it, ánd were to get only 300 dollars as a recompense. It would be extremely unjust to reverse the judgment as to the damages, and' affirm it as to the rest. ’
   Duncan, J.

delivered the opinion of the Court. ,

This case is brought up in a very nude state, and affords another instance of the evils flowing from the Act requiring Courts of Justice to reduce their opinions to writing and file them of record in the cause. This course is now unfortunately pursued, instead of the bill of exceptions, for which it is a most miserable substitute. Cases are now brought up without the facts; questions are frequently multiplied on questions, which do not call the attention of the Court to any precise state of facts,—requiring the opinion of the Court under the circumstances of the case, without stating, what the circumstances are, or how the questions arose from the evidence, or are pertinent to the issue. This provision, as experience, the best test and instructor convinces us, .though in theory it looked well, yet in practice, like many other beautiful theories of government and lawj works badly; and I now acknowledge I am as desirous to see it expunged from the Statute-book, as I was anxious to see it there.

The'errors assigned and insisted on, are three':

1. The answer to the third question. On which the plaintiffs in error required the-opinion of the Court.

2. In the answer to the first, second, and fourth points made by them on the trial. Which they complain of, as not containing full and fair answers.

3. The answer of the Court to the inquiries made, by one of the jurors at the conclusion of the charge.

The construction of every written instrument is the exclusive province of the Court, but the description of the land conveyed by any deed, its limits and contents,'are often mixed questions of law and fact. Here there is no patent ambiguity in the assignment, requiring the aid of extraneous evidence to ascertain the extent or fix the boundaries of the grant. The description can give all certainty. It was all the land within Mary Lee’s survey and patent, a grant by metes and bounds. The construction put on it by the Court was the true and accurate one; for Moses Rush did acquire the interest of 'Mary Lee in all lands within the survey and patent, taking on himself the risk of all interferences or incumbrances ;—that is, he bought subject to them.

' Whatever just complaints the defendant in error might have against the answers of the Court on the first, second, and fourth points, the plaintiffs complain most ungraciously j for they are all in their favour. They contain an assent directly and affirmatively to their propositions. What could they- ask or expect more ? v

But the eighth exception is one of the utmost importance. Upon one of the jurors enquiring of the Court, at the conclu-' sion of the chárge, whether the jury could allow to,the Collins’s any thing for the improvements since the reference and before -the action brought, the Court answered, that if the jury believed there was an unreasonable delay in bringing the-ejectment after the decision and reference, and in the mean time the defendants had made valuable improvements, it would give them such an equity, that the jury might allow a reasonable sum for the improvements, if they were satisfied the land was increased in value by the labour of the defen*dants. At first, I could not see how the plaintiffs in error (the defendants below) could complain of this. It was apparently" for their benefit, .and if it was a matter, altogether irrelevant, a mere surplusage in the verdict, it might be rejected, and judgment entered generally that the plaintiff below should recover possession of the land. This was my first impression; but, on examining the record pioduced, it appears, the finding of the jury was a special one. “ The jurors in the above cause find for the plaintiff; the plaintiff to pay the' defendants three hundred dollars for the improvements made on the land between the time of the arbitrators making the report (by an apparent acquiescence therein_) and the time of bringing the ejectment; the three hundred dollars tc> be paid the defendants before any writ issdes to dispossess them.”' It is therefore manifest, that this consideration formed the ground-work of their verdict,—entered info its very essence. It is but one judgment—nothing distinct ■—or capable of division—where part may be affirmed and part reversed, on the ground that utile per inutile non viteatur.

The Court in their answer were taken by surprise; the point had not been argued by the counsel; and fn the close of nót a very short charge .it was suddenly sprung upon them, and instantly answered, without turning it in their minds, or deliberating upon it, as they would have doné, had their attention been drawn to it by the course of the argument; and this will'account for the palpable error into which the Court fell. ■ The plaintiff had shewn a legal title. The Court were of opinion that the report of the referees, in,a former action .was not per se conclusive on his right; but the acquiescence and the subsequent improvements were another question. These might be attended with such circumstances, a lying by, and ensnaring the defendants into an opinion that their opponent was satisfied with the decision wh'ich the referees had made, encouraging him to go on for years with valuable improvements under the eye and with the connivance of the party,—as would call for the interposition of a Court of chancery by injunction, to prevent the plaintiff from recovering. Not having the testimony before us, we can give no opinion, whether the acquiescence and acts of Mary Lee and opinion, whether the acquiescence and acts oí Mary Lee and. Moses Rush, were such as would entitle the plaintiffs in error to seek relief 5 but the Court of Common Pleas, who had all the evidence before them, should in answer to the juror’s inquiries, have instructed them whether they' were so or not. But nothing could be. more erroneous, nothing more pregnant with mischief, more inconsistent with all our sense of the rights of property, or with the unconditional grant made by the State, than to heave it to the jury, as here was done, to say whether the delay was unreasonable, and if they believed it was, that then they could make the plaintiff pay smart money. The Court in fact say, it is true the plaintiff has a legal right; he is not barred by any positive limitation ; he has not, by an acquiescence in the report of the referees or by encouragement to the defendants prejudiced their title in equitybut if you believe his delay in bringing the ejectment is unreasonable, and if you .believe that the value of the lands is increased by the improvements, then you may allow the defendants a reasonable sum for them.’* This is improving a man out of his land with a witness. Delay alone, short of the time allowed by law to every one to prosecute his claim, forms no bar. The man, whose legal title is affected by time, loses it. The law extinguishes it. But until that period runs round, it remains his, though covered with the most costly edifices or most expensive improvements, without the payment of any redemption money. It does not stand mortgaged, the trespasser has no lien ; for then there can be no line drawn. The law in its wisdom has fixed the time : it will not leave it to the- discretion of any men. The limitation of time is legislative enactment not judicial discretion. There can be no terms made j no line drawn. The jury can make no bargain for the parties. They are to decide on the rights of the parties according to the laws of the land. They cannot make a plaintiff pay for his own land, or a defendant surrender up •his possession, if he has a right to retain it, on receiving such pecuniary compensation for his labour as they may think fit to allow him. This would 'be the exercise of an arbitrary discretion, the law of tyrants, the jus vagum, the most miserable of servitudes, as it would have no certain rule for its government. It would be an invitation to intrusion, a reward and bounty to trespassers. When the law has fixed the •time in which the non-prosecution of a right shall operate as a forfeiture, Courts and juries cannot circumscribe it. This would be jus dare and not jus dicere,—an assumption of legislative power. All attempts to obtain a law for the purpose have proved abortive. They have been wisely and firmly resisted by the Legislature, as violating the rights of property, and'repugnant to the Constitution. And sure I am, the respectable Court by whom this error was made, on reflection‘-would be the first to acknowledge their error, and now to answer, there can be no such compromise of men’s rights against their will. The plaintiff had a right to stand on his title;—the defendants on their title and possession. The plaintiff in his writ complained that the defendants were in the actual possession of this tract of land, the right of possession and title to which he averred was in him, and that he ■was prepared to prove it. The defendants denied his right, and on this they joined issue. - This issue the jury , were sworn to try. How then could the jury, on this issue, find the right to be in the plaintiff, and yet make it ,a condition on which the restoration of that right is to depend, that he shall pay the trespasser for his trespass.? Or how on the other hand could they say, there were such acts done by the plaintiff, such acquiescence in the decision of judges of the parties’ own choice, such encouragement given to the defendants to continue their improvements, qs in equity, affect the conscience of the plaintiff, and prejudice his right, so as to render it against conscience for him to disturb the possession of the defen- ' dants, but still they shall deliver up the possession for such a price as the jury think fit to allow them. If the defendants made out any case for relief, it was for the land itself, and not compensation in money for their -labour. If they made out no case, the plaintiff was entitled, to an unconditional verdict.—In either way, the answer was wrong, and misled the jury.

There are many-cases in ejectment, where conditional verdicts have been recommended by the Court, in matters, of trust and executory contracts. There being no Court of chancery in this State, the Courts of law, lest there should be a failure of justice, exercise chancery power, taking the rules of chancery for their guides. They, by the medium of a jury and conditional verdict, compel indirectly what chaneery decrees directly—the specific execution of contracts, the performance of trusts. But no Court of chancery could restrain the legal owner of lands from recovering the possession from one who had acted against his will, until he had paid the trespasser for' such improvements as it pleased him to make against the will of the owner, when he had kept him in law and exposed him to expense in the recovery of his just rights.

. There is no such defence at law, and it is opposed to every principle of morality, justice, and equity.

Judgment reversed, and a venire facias « de novo awarded.  