
    M'Cullough against Wallace and another executors of Elder.
    Where the cóuít order estate ot an intestate, to the husband payingt0 tbe other heirs. their respeethT^p'aised value of the an but his ™11®.’® ^bare= right. Consethe land, the record of the proceedings of “P* port of his title.
    h«s“as bee» ¡« posland, under a. judging the “elum mi|y> «fer tile wife, recover who has en-
    Itisa£ainst conscience, to take out a warrant, for lahd, knowing that another person has paid for the same land, and obtained a warrant ■which covers it; and where the warrant is descriptive, there is no ground for supposing the warrantee intended to relinquish it, because he has neglected to have a survey made.
    If illegal evidence has been given, without objection, it is not error in the Court, to treat it as legal evidence. •
    In Error.
    THE defendants in error, who were plaintiffs below,* brought’an ejectment in the Common Pleas of Dauphin county, as executors of the last will and testament of J 1 - Elder, deceased, by which, the real estate of the testator was devised to them to sell, against the plaintiff in error, to recover a tract of land in Halifax township, which they claimed, ... . . J J I 1 7 under a descriptive warrant, granted on the 27th oiDecember, 1785, to Samuel Rankin, by whom the purchase money was paid. Rankin conveyed to Bartram Galbraith, for whom a survey was made, on the 19th of June, 1806.' David'Elder., the testator, having married Jane, one of the daughters of Bartram Galbraith, presented a petition to 'the Orphans’ Court, for the partition or valuation of the real estate of father-in-law, who-had died .intestate ;• in pursuance of .... ..... ■ . r whicn, an inquisition was held, by which it was appraised at a certain sum, and the Orphans’ Court adjudged it to said David Elder, his heirs and assigns, on his entering ,. , • . , .... - r-6-, - recognisances ior the payment to the other, children of their shares of the value of the land. When the record of these proceedings was .offered in evidence, it was objected to by the counsel for the defendant; but the objection was ruled'by the Court, and the evidence received.
    The defendant, who had settled on the land in dispute, as the tenant of Galbraith, obtained a warrant for it. in his own name, dated —r April, 1806, on which a survey was made, on the 19th of the following June. Proceedings were, at a former period, instituted by the plaintiffs’ testator, under the Landlord and Tenant Law, by virtue of which, the defendant was turned-out of possession. The record of the proceedings of the Board of Property, in a controversy between the defendant and a certain Robert. M<-Call, in which it was decided by the Board, that the defendant was the te- , . . . , , , , . nant ot. Galbraith, was also given m evidence by the plain-.without opposition.
    In their charge, the Court of Common Pleas instructed the jury, that if the defendant, at the time-of his- settlement on the land in controversy, and of his application to the Land-office for a warrant, knew, that- Galbraith held a descriptive warrant, he had acted fraudulently, and his- warrant was void, so far as it interfered with Galbraith's title. '.That if the defendant was the tenant of Galbraith, the plaintiffs were entitled to recover. That the proceedings before the Board of Property, were evidence, though not. conclusive evidence.
    The errors assigned were, in the admission of the record of the proceedings of the Orphans’ Court, and in those parts of the charge which are stated above.
    
      A. Hopkins and Norris, for’the plaintiff in error.
    1. The proceedings of the Orphans’ Court were irrelevant, because they shewed-no title in David Elder. We contend, that, under these proceedings, he acquired no estate, legal or equitable, in any part of the ■ land. The power vested in the Orphans’ Court, in relation to the real estate of intestates, is of - a dangerous nature, and should not be extended beyond the letter of the law which confers it. The law of descents, is not to be' altered except by express ’words. 4 Dall. 65. 2 Binn. 279. 1 Binn. 91. 3 Johns. Cas. 107. The Act of Assembly of the 19th of-April, 1794, Purd. Dig. 293,.upon which these proceedings were founded, does not authorise the. Orphans’ Court to assign real, estate to one, who is not of the blood of the intestate. The 22d section of -that .Act, authorises a petition to be presented by the ivido’w, or any child of the. intestate, for a- partition or valuation of his real estate; and in case it cannot be advantageously divided, the' Court are empowered to order the whole to the' eldest son, and if he refuses to take it, to the other sons successively, and if they all refuse it, to the daughters in succession, beginning with the eldest; but no mention is made of the husbands of the daughters, who seem to have been intended to be excluded. If, however, the . ’ . ’ , the proceedings m the Orphans’ Court were valid, David Elder was entitled .to the land, only in right of his wife, who having survived him, the title became vested in her alone. He, therefore, could give no estate to his executors. It was consequently immaterial, whether the defendant was the tenant of Galbraith or not, for no recognition of his title, could enure to the benefit of the plaintiffs. But if David Elder is to be regarded'as the purchaser of the-shares of the other children, and therefore as holding them in his own right, it is perfectly clear, that his wife’s share is to be considered as coming to her by descent, in which he acquired no title-under the decree of the Orphans’ Court. Blocher v. Carmony, 1 Serg. & Rawle, 460. As therefore the plaintiffs, upon their own shewing, have not a title to the whole of th'e land they claim, the charge was .erro.ieous, in stating that they were entitled 'o a verdict, if the jury should be of opinion, that, at the time he took out his warrant, the defendant was the tenant of Galbraith\ or knew of his warrant.
    2. Where the holder of a descriptive warrant uses due diligence in obtaining a survey, his title commences from the date of his warrant.. Lauman v. Thomas, 4 Binn. 58. But Galbraith, who suffered more than twenty years to elapse, between the time of taking out his warrant and making his survey, does not come within this rule. After such an unreasonable delay, he must be considered as having .abandoned it. If therefore M'-Cülloúgh knew of GalbraitWs.warrant, and also knew that it was held back, during só long a period, without a survey, there was nothing fraudulent in his. taking out a warrant in his own name. The most that can be said, is, that his warrant was voidable. But the Court charged, that it was absolutely void, and in this they erred. 7 Bac. Ab. 64.
    3. A verdict is evidence, only between the same parties or those claiming under them. Phil: Ev. 230. Upon the same principle, the proceedings before the Board of Property, between the defendant and a stranger, were inadmissible.
    
      
      Elder and Hopkins, for the defendants in error,
    argued, that the proceedings in the Orphans’ Court were properly received, because they constituted part of the plaintiffs title. Our position is, that David Elder took the whole of t^le ^anc* adjudged him, absolutely, subject to the payment of the appraised value, to all the heirs but his wife; and as she would have been entitled to a share in money, which would have gone to him as personal property, if he had not taken the land, the only way to put him on a footing with the rest, is, to vest the land in him in fee simple. That those shares which are to be paid in money, are personal property, is settled. Diermond’s' Lessee v. Robinson, 2 Yeates 324. Yohe v. Barnet, 1 Binn. 358. And if the husband of a female heir, who agrees to accept the land at the appraisement, is to hold it only as the other real estate of his wife, the consequence must be, that a sale will, in most instances, be rendered necessary, and the land thus ta* ken out of the family; for it cannot be expected, that the husband will consent to an arrangement so much to his disadvantage. The child who takes the land, and pays the other children, takes the whole as a purchaser, and so does the husband of a daughter, who is incapable of choosing for herself. With respect to those shares for which he has paid his own money, there cannot be a doubt that he is the absolute owner, even admitting that, with respect to his wife’s share, he is to.be regarded as a trustee; and as he paid for nine-tenths of the land in dispute, the proceedings in the Orphans’ Court were evidence, to show his title to these proportions. The same argument goes to shew the propriety of the charge in declaring, that if the. defendant was the tenant of Galbraith, the plaintiffs were entitled, under the' will of David Elder, to recover. Of nine-tenths of the property he was himself the owner, by title derived from Galbraith, and to the remaining tenth, he had the legal title at least, which gave him such a title to the whole, as would entitle his executors to a verdict.
    2. It is a fraud in a tenant to take out a warrant in his own name for his. landlord’s land. The idea of an abandonment of Galbraith’s warrant, is. wholly unfounded ; for a descriptive warrant cannot be abandoned.
    
      3. With respect-to the admission of the proceedings of the Board of Property, it is sufficient to observe, that they were read without opposition ; and therefore' the Court could not say they-were riot evidence.
   The opinion of the Court was delivered by

Tilghman C.' J.

The defendants in .error were the plaintiffs below,-and claimed the land in dispute, under David Elder, deceased, who devised it to them, by his last will and testament, of which he made them executor's, to be sold, Jkc. David Elder's title was derived from Bartram Galbraith, whose daughter fane he married. In order, to show title in Galbraith, the plaintiffs gave in. evidence, a warrant to'Samuel Rankin, descriptive of the landfor which this. ejectment was brought, and a-deed from Rankin to-Galbraith. Having brought down, the title to Galbraith, the plaintiffs offered in evidence certain proceedings in the Orphans’.Court, by which the said land Was adjudged to David Elder, husband of the said fane, one of the daughters ot the said Bartram Galbraith, he paying to the other children, their shares of the value of the land, according to an appraisement thereof, by an inquisition, held by order of the Orphans’-Court. To this evidence the counsel for the defendant objected, but the Court admitted it, and an exception was taken to their opinion.

There can be no doubt, that this record of - the Orphans’ Court 'was evidence ; because it was directly in support of David Elder's title. Bartram Galbraith left ten children, among whom his estate was to be equally divided ; so that when the Court adjudged the land to David Elder, his wife’s share being only one tenth part, he had to pay the appraised value of nine-tenths, to the other children. Now, granting that one-tenth part was vested in him, in right of his wife, he took nine-tenths in his own right, and his executors would, at all events, be entitled to recover to that amount. The record, therefore, was evidence. -

There were several exceptions taken by the defendant to the charge of the Court, for the understanding of which it will he necessary to state the evidence on which the charge was given. The plaintiffs gave parol evidence, to prove, that the defendant settled on the land in controversy, as a ténánt of Bartram Galbraith, who had a warrant descriptive Qf t'ne land, but no survey ; and that the defendant after-wards took out a warrant, on which he had a survey made, with a view ot securing the same land to himself. The plaintiffs also gave in evidence certain proceedings before the Board of Property, between themselves and the defendant, and between a certain Robert 'M'-Call and the defendant, and certain other proceedings under the Landlord and Tenant Law, between David Elder and the defendant, by which the defendant was turned out of possession. One of the exceptions to the charge, was, that the jury were told, “ that if the defendant knew of Galbraith's descriptive warrant, afthe time of his taking out his own warrant, he acted fraudulently.” There was no error in this. It is against conscience, to take out a warrant for land, knowing that another er on has purchased, and paid for, the same land, obtained a warrant which covers- it. It is but a poor excuse, to say, that this other person has been negligent in mot having a survey made on his warrant. There would be -weight in this objection, if the warrant were not descriptive ; because no man has a right to put his warrant in his pocket, and keep all others in suspense, as to the place on which he intends to locate it. But, where t[ie warrant describes the spot, so as to leave no room for doubt, the case is different. And as to supposing that the warrantee intended to relinquish his warrant, there is no ground for it, where the land has been paid for.

The next error assigned in the charge, is, the saying, “that the proceedings before the Board of Property, were evidence, but not conclusive.” When this exception was taken, it was forgotten that those proceedings were given in evidence^ without, objection. How then could the Court afterwards tell the jury that they were not evidence? If the parties agree to improper evidence, the Court is not bound to interfere. There is no error, where there, is consent.

The last objection, is that the Court instructed the jury, that the plaintiffs were entitled to a verdict for the whole land, if they should be of opinion, that the defendant took out his warrant, while he was a tenant of Galbraith, or with knowledge of Galbraith’s warrant. This, the defendants counsel suppose to be an erroneous- direction, because, by the plaintiffs’ own shewing, they had title only to nine-tenths of the land for which they haw- brought suit, the remaining tenth being the estate of Jane, the widow of David Elder. But it appears to me, that, under the circumstances of this case, the plaintiffs were entitled to recover possession of all the land, from the defendant, who has set up a claim in opposition to all the children of Bartram Galbraith. It was in evidence, that David Elder was in possession of the whole land, under the decree of the Orphans’ Court, and claimed, it in his own right, and that he obtained possession of the whole, by virtue of an inquest, under the Landlord and Tenant Law. That possession, lawfully acquired, was sufficient title to recover in an ejectment, against any person, who entered without better title. If the defendant had shewn better title, the verdict should have been in his favour. But if not, he could not shelter himself under a title, supposed to be in the widow of David Elder. The defendant must do justice, by surrendering the possession which he took without right. The plaintiffs and the widow, may then settle their own affairs between the selves.

I am of opinion, that there is no error in this record, and therefore the judgment should be affirmed.

Judgment affirmed.  