
    [Chambersburg,
    Friday, October 4, 1811.]
    Bixler against Baker.
    In Error.
    A patent for land which has been surveyed under a warrant issued from the land office since the 22d September 1794, is only prima facie evidence that the warrant issued regularly, and that the settlement required by that act has been made. If there was no personal resident settlement on the land, when the warrant issued, it issued fraudulently in point of law, and the patent under it cannot prevail against a settlement made by another person subsequent to the warrant but before the patent was obtained.
    A mere improvement on the land is no authority for a warrant under that act. An improvement may be made by clearing land, and cultivating it, without residing on it. The act requires a settlement, which implies actual residence.
    Upon a writ of error to the Common Pleas of Bedford county, the case was thus:
    Baker, the plaintiff below, instituted this ejectment to recover a tract of land, to which he claimed title under a warrant for one hundred acres to Joseph Sellers dated the 7th September 1796. The warrant included an improvement by Sellers adjoining Daniel Baker and Thomas Vickroy in Woodbury township; and was issued upon a certificate by two justices, agreeably to the act of 1st April 1784, specifying that the land was improved, and had been so since the spring of 1795. On the 3d of March 1797, Sellers conveyed to Dixon, who on the 10th April 1805 conveyed to Baker the plaintiff, to whom a patent was granted on the 6th of August 1806.
    The defendant below relied upon his possession, and an actual settlement made by himself, under the following circumstances, which were given in evidence:
    In the year 1795, Sellers, who then lived with his family upon an adjoining tract, cleared about three quarters of an acre of the land in question, fenced it with a tolerable fence of rails and brush, sowed and reaped grain, and erected a sort of cabin or pen. The cabin had neither door, chimney, fire-place, nor roof. It was built of logs, on which at one corner there were a few clapboards. No person ever lived in it, or resided on the land. In the spring of the year 1805, Bixler, who was then making preparations to settle upon the tract, requested some neighbors to examine the ^condition of the improvement. The cabin had been previously destroyed by fire, the fence was down, and no person resided on the land. Bixler was advised not to go upon it, and was shown the warrant to Sellers with an endorsement by the deputy surveyor stating that it had been executed; but he said he would try it, and accordingly moved on with his family, and built a comfortable house, in which he had resided ever since. Baker the plaintiff was present, when Bixler declared his determination to go on.
    The evidence of settlement was in some respects contradictory ; but upon the whole the counsel of Bixler contended, and requested the court to charge the jury, that Baker had never acquired a legal title to the land, as there was no proof of any actual resident settlement thereon .at the time the warrant was procured. The plaintiff's counsel on the other hand insisted that the matters in evidence were sufficient to prove that he had acquired a good and legal title, without the proof of any actual resident settlement, and accordingly a majority of the court overruling the president, did charge the jury “ that the warrant, survey, and patent were sufficient to vest a good and legal title in the plaintiff, without the proof of any actual residence on the ground at the time of taking out the said warrant.” To this opinion a bill of exceptions was tendered, and sealed.
    
      J. Biddle and Duncan for the plaintiff in error.
    By the act of 22d September 1794, no applications thereafter could be received in the land office, for any lands within the commonwealth, except for such whereon a settlement had been made, grain raised, and a person or persons residing thereon. 8 St. Laws 636. The meaning of this term settlement, was fixed by the act of 30th December 1786. It is “ an actual personal resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family.” 2 St. Laws 487. The greatest part of the lands within the state, having been taken up prior to the act of 1794, the legislature intended from that moment to revoke the authority of their land office to issue warrants for lands that were claimed under a mere improvement, by clearing the ground, building a cabin, and the like, and to limit their authority to the issuing of warrants for land actually settled "as we^ a8 improved, and having a person or persons then resident thereon, intending to make it a place of abode, and the means of supporting a family. The warrant to Sellers issued therefore in contravention of the law; for the evidence unequivocally proved the want of residence, and that there was nothing but a mere improvement to justify Ms application. One of two inferences then must be drawn ; either a fraud was practised upon the land office, or the officers exercised the prerogative of dispensing with the law. Whichever was the case, the result as to Sellers, were he the plaintiff, would be the same. It is impossible that the warrantee himself can derive title from a warrant fraudulently obtained under his own misrepresentations, or granted to him by the public agents, who, he knew, were exceeding their authority. The only question in the case upon which a doubt can be raised, is as to the effect of the sale to Dixon, and by him to Baker; and to this two answers may be given, one of which must be satisfactory. In the first place, the purchaser knew that he purchased a warrant issued subsequent to the 22d September 1794, and therefore depending for its validity upon the performance of the condition precedent prescribed by that act. He was bound to know that a settlement and residence were indispensable parts of his title, as much as the warrant itself, and therefore he was a purchaser with notice that no settlement had been made, because he purchased with notice of the law, which should have led him to inquiry. In the next place, either when he purchased or shortly after, Baker knew that Bixler was in possession, claiming under his own settlement; and whatever bright be the effect of a patent obtained by a warrantee, and transferred to a bona fide purchaser without notice before an adverse settlement was made, a patent obtained by Baker himself after this knowledge, cannot in the smallest degree fortify his title. He was both a purchaser and patentee with full notice of his situation. Any patentee would however be bound to take notice of the warrant, as much as if he purchased under a warrant merely. Lessee of Willis v. Bucher, 2 Binn. 466. In no way can the opinion of the court below be supported, but by proving the conclusiveness of "the warrant and patent upon the fact of the settlement. But this would place the law at the feet of the land officers, and make their error protect itself.
    
      Brown, Todd, and Watts contra.
    This question is of the greatest importance, because if settled contrary to the decision of the court below, it will leave this kind of title for ever exposed to the criticism now made. The only doctrine consistent with the security of titles, is that which was adopted below; first, that the law having appointed a mode of proof, and delegated an authority to its officers to decide upon it, the pursuance of the prescribed mode, and the exercise of the official authority in relation to the object, are in their result conclusive upon all parties; and secondly, that the patent is a confirmation by the commonwealth which cures the errors and defects if any in the warrant which precedes it.
    The act of 1st April 1784, intending to give to the officers of the land office a kind of judicial proof of the situation of the land applied for, directs “ that every applicant shall produce to the secretary of the land office, a particular description of the lands applied for, with a certificate from two justices of the peace of the proper county, specifying whether the said lands be improved or not, and if improved, how long since the said improvement was made, that interest may be charged accordingly.” 2 St. Laws 201. Here is a statutory mode of proof, which was pursued by Sellers. The land officers have passed upon it, by receiving his application, which if there was no proof of settlement must have been rejected; and it is to be observed, that the provisions of the law, when it was passed, concerned the commonwealth alone, and that it was for its own satisfaction, and not the protection, of individuals, that any proof was required; of course the construction should be in favor of the position, that when the general agents of the commonwealth are satisfied, the question of compliance with the law should be considered at an end. The Court will take it that proof of a resident settlement was made, because if not, the warrant would not have issued. The consequences may otherwise be most inconvenient. Settlement is a matter in pays. It rests in the memory of witnesses, who change their residence or ^ *3 policy of the law to remove all uncertainty from titles to real estate; to make them as much as possible the subject of written testimony, and as little as possible the subject of parol. The opposite argument makes the very substratum of the title depend upon oral testimony. But the patent is certainly conclusive. The whole question is between the commonwealth and the applicant. No one else can impeach the title, or what is the same thing in this case, no one can impeach the title when the commonwealth cannot. "While the title depends upon the warrant, it is possible that the land office may object to granting a patent, upon the ground of fraud, mistake or imposition. The title is then a matter of agreement, inchoate, and it may be said is not entitled to be perfected in case of previous mistake. But the patent is a transfer of the legal estate, and is a confirmation by the commonwealth under its great seal, of the acts of its agents. Surely, after this has been executed and delivered, the commonwealth or any one claiming under it, cannot say that the warrant issued improvidently. Here is also the interposition of a third person. The controversy is not with the warrantee. It is with one not privy to the original transaction ; one who did not trust to a conveyance from the warrantee, but resorted to the fountain head for its title; one who therefore has as strong an equity as the defendant, and in addition to that has the legal title.
   Tilghman C. J.

George Baker, the plaintiff in the Court of Common Pleas, claimed under a warrant to Joseph Sellers dated 7th September 1796, for one hundred acres of land, including his improvement. On the 3d March 1797, Sellers conveyed his right to Andrew Dixon, who on the 10th April 1805, conveyed to George Baker, to whom a patent was issued on the 8th August 1806.

Jacob Bixler, the defendant, entered on the land, and made a settlement prior to the issuing of Baker’s patent, and he defended himself under his possession and title by settlement. It became a question, on the trial, whether Joseph Sellers had made a settlement and resided on the land, at the time of obtaining his warrant. With regard to this fact, evidence was given on both sides, and the opinion of the court was prayed, whether the plaintiff was entitled to ■^recover without proof of such settlement and residence. The court delivered tlieir opinion, “ that the warrant, survey and patent given in evidence by the plaintiff, were sufficient to vest in him a good and legal title, without the proof of any actual residence on the ground, at the time of taking out the said warrant.” To this opinion the counsel for the defendant excepted, and the two associate judges of the Common Pleas, who differed from the president, and overruled him on this point, sealed a bill of exceptions.

This warrant was issued under the act of 22d September 1794, by which it is enacted, that no application shall be received in the land office, for any land within the commonwealth, “ except for such lands whereon a settlement has been or shall be made, grain raised, and a person or persons residing thereon.” The commonwealth was supposed to have issued warrants before this, for nearly as much land as remained vacant, and it was determined to leave the residue for that class of people, who would settle and make their residence on the land. In our acts of assembly, and in common parlance, there is a difference between an improvement and a settlement. An improvement may be made by clearing land, and cultivating it without residing on it. A settlement requires an actual residence. Settlers in this sense of the word have always been favored, and deservedly, because they increase the wealth, the strength, and the population of the country, in a greater degree than any other class of men who take up land. The idea of the legislature, with regard to the meaning of a settlement, is precisely defined in the act of 80th December 1786. “It is an actual, personal, resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family.” I can see no reason for supposing that any other kind of settlement was intended by the act under which this warrant issued. But it is contended, that supposing this to be the true construction of the act, the patent is conclusive evidence, that such settlement was made, because the officers of the commonwealth would not have issued it, without proof of the settlement. This argument is not correct. I agree that the patent is strong presumptive evidence of a settlement, and if the court had said so to the jury, all would have been right. But I cannot allow that the patent is conclusive ^evidence. The officers of the land office are public agents, entrusted with the power of granting lands in the name of the commonwealth, not absolutely, but under the conditions prescribed by law, of which conditions every man is bound to take notice. When Baker purchased the right to Sellers’ warrant, he was bound to take notice of the nature of that warrant, and the condition which ought to have been complied with before it issued. He was bound also to know, that if the warrant was obtained by fraud and imposition on the commonwealth’s officers, and that fraud should be discovered, the board of property had a right to refuse a patent. It is true, a patent was afterwards issued; but previous to it, Bixler had entered with a view of making a settlement, and he thereby acquired a right, in case the warrant of Sellers was illegally issued. It is unnecessary to give an opinion how the law would be, if, after the issuing of the patent, an alienation had been made to a bona fide purchaser without notice of the original fraud, and then Bixler had entered on the land and made a settlement. The case is that he entered before the patent was issued, and being in possession Baker was bound to take notice of it. If Bixler acquired a right by his entry and settlement previous to the patent, the board of property could not divest him of it by issuing a patent. The Court of Common Pleas therefore ought to have directed the jury, that in case they should be of opinion there was a settlement attended with residence, at the time of obtaining the warrant, the title of the plaintiff was good; and they erred in saying that the plaintiff’s title was good without proof of actual residence. My opinion is that the judgment should be reversed, and a venire facias de novo awarded.

Yeates J.

The warrant under which Baker the plaintiff below claimed, was dated on the 7th September 1796, founded on an improvement made on the lands in question in the preceding year. Bixler came into possession in the spring of 1805, the land being then and for several years before unoccupied, and the patent issued to Baker on the 6th August 1806. The opinion of the majority of the Court of Common Pleas was declared, that the plaintiff below had a good and legal title to the land in question, without proof of *any actual resident settlement thereon, and have sealed a bill of exceptions.

The counsel for the defendant in error have contended, that by the third section of the act of April 1st, 1784, the certificate from two justices of the peace of the proper county, is only to specify upon an application for lands whether the same be improved or not; and if improved, how long since the said improvement was made, that interest may be charged accordingly :—that the officers of the land office, having accepted the certificate signed by the justices of the peace in the present instance, and acted thereon, and a patent having afterwards issued on those proceedings, the same is conclusive proof of their regularity;—and that no one can object to the want of an actual settlement except the commonwealth.

To this it has been correctly answered, that the first section of the act of 22d September 1794 alters the former law, by directing that no application shall be received in the land office, “ except for such lands whereon a settlement has been or thereafter shall be made, grain raised, and a person or persons residing thereon.” The judgment of the two judges manifestly impugned this act, when it was held, that proof of actual settlement on the ground at the time of taking out the warrant was unnecessary. The land officers had no authority to dispense with the provisions of a positive law, and whether their error sprang from ignorance, inadvertence or misinformation, it cannot conclude the state, nor can the patent conclude the commonwealth, when founded on a false statement of facts. Every citizen interested in the land thus acquired, may contest the validity of the grant. This point was fully considered and decided on by this Court in the feigned issue tried at Sunbury in November 1802, between the attorney general and grantees under the act of 3d April 1792.

But it has been further objected, that if there was an illegality in taking out the warrant, it was purged by the subsequent conveyances from Joseph Sellers the warrantee to Andrew Dixon in March 1797, and from Dixon to Baker the defendant in error in April 1805. It is not precisely ascertained whether Bixler came into possession of the premises before or after the date of Baker’s deed. If the land *was occupied by Bixler previous to the purchase by Baker, it was implied notice of the adverse right. At all events, the former settled on the lands nearly sixteen months before the latter obtained his patent. If the transfer of the land to a third person would legalize an act interdicted by the provisions of the legislature, it would amount to a repeal of that section of the law which I have mentioned. Every man is bound to know and conform to the laws of the country. A purchaser takes the title with all its imperfections, and a prudent man will look to the right he is contracting for, and secure himself by proper covenants. The rule is caveat emptor, and it is matter of daily experience, that patents are impeached in the hands of alienees.

I have no hesitation in saying, that the opinion delivered by the two judges was erroneous, and naturally led the jury into mistake; and that judgment should be reversed, and a venire facias de novo awarded.

Brackenrid&e J.

By the act of the 3d of April 1792, in consideration that the most valuable lands had been appropriated, and those which remained, were so high at the prices fixed by law, as to discourage actual settlers from purchasing, it is provided, section first, that all vacant lands, excepting always such as have been previously settled, shall be reduced to the sum of fifty shillings for every hundred acres.

By the act of September 1794, “ No application shall be received for any lands, except such whereon a settlement has been made, or shall be made, grain raised, and a person or persons residing thereon.” This reduction in the price of lands, though intended for actual settlers, yet other purchasers availed themselves of the occasion, and took out warrants at this price. Frauds were practised in getting warrants that had been taken out, returned unexecuted, and new warrants taken out at the reduced price, transferring the purchase money of the old to the new, as by law had been provided might be done in the case of unexecuted warrants, by act of assembly of March the 29th 1792, and March 6th 1793. With a view to this fraud, came the act of 1794, but as aforesaid. But if you *toss out fraud with a pitch-fork, as the poet says, it will come back upon you.

--Expelías furea, lamen ipsa recurret.

In the nature of the case, proof must be made to the office that this condition precedent had been fulfilled before an application was receivable. The law did not provide for the kind of proof, nor with what solemnity it should be brought forward; hence, deception of the office. Had the law provided in what way proof should be made, its being made in that way, would have been conclusive in favor of the applicant. But it is left at his own risk. It is at his peril that the condition has been complied with, and he is at the mercy of making out proof of this when at any time it shall be questioned. Doubtless there must be some evidence to the office; but I cannot undertake to say, nor am I much disposed to say, after the frauds that have been practised on the office, and the little vigilance to resist them until the time of Governor M’Kean’s administration, that any acquiescence of the office ought to conclude any thing.

It is contended that in the ease of a bona fide transfer such proof is not necessary. But the warrant being originally void if obtained on a fraudulent application, cannot be rendered valid by becoming the property of an honest man.

It may be asked what shall be the nature of that improvement which the act requires. The description in the act of assembly of 1786 has been contended for. In speaking of that act I shall premise a word or two. What should constitute an improvement was the question before the revolution; not whether an improvement shoidd constitute an equity. It was difficult to say what inception, or continuing, should amount to a settlement. A small matter hath sometimes' carried a verdict against the office right; and even against a later, hut more substantial improvement. The tarrying a night, the marking a tree, the finding a spring, had been set up. The girdling a tree, that is, taking a circular slip of bark from the body which tended to kill it, and destroyed shade, had been considered as a legitimate commencement of improvement. The deadening in this manner, as the phrase was, of an acre or more of ground, had pretty fair pretensions to a tract. The planting peach or cherry stones, or sow^n» *apple seeds, had been given in evidence, and considered as giving a priority. Rye or wheat sown, from whence some stocks were proved to have grown up, was called raising grain.

"Where an improvement was made out, the difficulty was to ascertain the extent on each side. The usage gave 300 acres; but how to be laid out, a square, an oblong, or what irregular figure, was the difficulty. The way in which the settler announced himself to claim, or in which he might be considered as reasonably claiming, taking into view the water, the ridge, bottom, or low ground, was a guide for the consideration of the jury. Lines by consent amongst the settlers were held sacred. Hence the terms consentable lines, agreed lines. What was reasonable on all these heads, after a good deal of extravagance, had come to be pretty well understood. The common sense of the people, and their own convenience regulated this.

--Utilitas justi prope mater et cequi.

But the extravagance in many cases had thrown disrepute upon improvement claims, and excited or rather had increased an opposition to them. The holders of office rights had an interest in opposing them. Nevertheless they were considered so protected by the usage, that on the opening of the land office, 1st July 1784, no provision would seem to have been thought necessary to protect them by express words; though it would seem to be implied in the act, that settlers alone could take out warrants for their own improvements. By section third, every applicant for land shall produce to the secretary of the land office a particular description of the lands applied for, with a certificate from two justices of the peace for the proper county, specifying whether the lands be improved or not; and if improved, how long since the improvement was made, that interest may be charged accordingly. It cannot be supposed that any but the settler could be contemplated as bound to give an account of his improvement, and on application for a warrant to pay interest; and it was so understood, until at a Nisi Prius Court in 1785, evidence of title by improvement was overruled, and an entry on land without a previous office right, was treated as a trespass. "-^is produced a legislative interposition,and brought up the act of 1786. It was an act on the spur of the occasion, and the terms in the description of what shall constitute a settlement, were multiplied to obviate fears from the extravagance which had prevailed at an early period. But tbe description in fact amounts to nothing. “An actual personal resident settlement, with an intention to make it a place of abode, fit for the habitation of man, and continued from time to time, &c.” Actual—there must be an act. Thinking of the land will not do, nor looking at it. The act must be personal, not by property upon it. There must be residence. Walking over will not do. Continued from time to time. From one hour to another might satisfy this. Fit for the habitation of man. There must be something in which a man can lodge. With an intention to make it a place of abode. The intention must be collected from circumstances. So that after all, that kind of settlement which had been sanctioned by the courts and juries, and had come to be pretty generally understood, and substantially comprehending these, must still be resorted to as what will bring an improvement within the custom.

The description in the present act has the circumstance of raising grain, which would seem to require something more than the bare inception of a settlement; for grain could not be raised under three months at least; and the meaning could not be any thing short, in the understanding of the people, of what might be reasonably considered the making a crop on a reasonable extent of cleared ground. A statute definition in this case, never can comprehend in terms what may be a compliance substantially with a condition; and as every improvement must be the result of a series of acts, it must be construed according to the usage, and be left to the due and attentive consideration of a court and jury. I do not take it, and for these very reasons, that it was intended to be within the province of the land office to judge of this conclusively. An adverse claim in this as in other eases, notwithstanding a warrant issued on an alleged improvement right, may still be traversed and defence made.

Judgment reversed.

[Cited in 2 S. & R. 66; 6 id. 140, 250; 10 id. 247; 2 R. 235; 1 W. 96; 5 id. 564; 3 Wh. 268; 7 Barr, 481; 1 Clark, 208; 6 H. 301; 7 id. 40; 10 Wr. 70; 9 S. 163 ; 27 id. 130.]  