
    Philips and others executors of Simons against Shaffer.
    Tuesday, June 7.
    An application for land, vests in the applicant a right though not a perfect right. It is the inception of a title which may be rendered perfect by future proceedings, or abandoned by the applicant" or lost by negligence.
    
    Whether such negligence existed is matter of fact for the jury.
    If such application does not call for the land with reasonable certainty, the title under it vests only from the return of survey, and a prior return of survey made for another, bona fide and without would be preferred.
    
    The same rule applies to the case of a shifted location.
    Returns of surveys by an agent for the deputy surveyor accepted by the surveyor general are prima facie evidence, that such surveys were made by the authority of the deputy, notwithstanding the fees are in one instance charged by the surveyor general to the deputy, and in another, to the agent; and whether such authority was given in the latter case, is a fact for the jury to determine.
    The actual lines marked on the ground, are the true lines of the survey.
    Persons not paying the purchase money under the act of the 9th April, 1781, are not afifecled oy that act, if the commissioners didnot proceed to a sale, by virtue of that law.
    In Error.
    ERKOR to the Court of Common Pleas of Columbia countv. v
    The plaintiffs in error, who were also plaintiffs below, claimed under a warrant to Michael Gratz, for 300 acres 7 
      land, dated 11th August, 1774, on which the purchase money was paid the same day; a survey by Charles Stewart, deputy surveyor, on the 2d April, 1778, returned by William Gray, for Charles Stewart, deputy surveyor, on the 28th December, 1781; and a patent to Joseph Simons, on the 18th September, 1782. The defendant claimed under an application in the name of Edward Wells, for 300 acres of land, dated, 3d April, 1769, on which a survey was made by Charles Stewart, deputy surveyor, 11th October, 1777, and returned, by William Gray for Charles Stewart, the 8th April, 1783. It appeared plainly, that both the surveys of the plaintiff and defendant, comprehended the land in dispute; so that on the merits of the case, the cause seemed, to depend on the question, whether Edward Wells’s application was descriptive of the land, or was what is called, a shifted or removed applition. Several questions of law however were proposed to the Court by the plaintiffs’ counsel, to which answers were given, as follows:
    1. Applications of the 3d April, 1769, merely of themselves give no right,. No part of the purchase money is paid. No title vests thereby: nor does it form any contract with the proprietaries for the payment of the purchase money;
    
      Answer of the Court below. This may be considered the law, with some qualifications: that is, where no survey has been made within a reasonable time, or before the commencement of the adverse title, or where there has been an abandonment. Applications of this kind are considered as inceptions of title, and if they have been pursued with due diligence, will give a title by survey, return, and patent being granted.
    2. The laches of Samuel Wells, who appears to have had the defendant’s title by location from 1772 to 1782, when he conveyed to Owen, in not having his survey returned, and neglecting to take out his patent under the law of 9th April, 1781, and 5th April, 1782, until after the date of the plaintiff’s patent, and not caveating against the return of the plaintiff’s survey and patent, amount to an abandonment of the claim, which by law postpones the survey of Edward Wells, to that of the plaintiff.
    
      Answer. If the jury should be of opinion, that the application of Edward Wells, under which the defendant claims is reasonably descriptive of the land, the defendant’s title then would commence from the time of the survey, and would be the eldest. But if the jury believe that the defendant’s application is a renewed one, his neglect to have a return of his survey from 1777 until 1783, would be strong evidence of abandonment, provided the jury believe the plaintiff ever had an actual survey.
    3. No title vested in the defendant till the return of the survey into office, it being a shifted location.
    
      Answer. If the jury believe, that the application of Edward Wells, was a shifted or removed one, title would not commence before the return of survey, unless the opposite party had notice of the survey.
    4. William Gray, had no authority on the 8th April, 1783, to make a return of Wells’s survey, there being no law at that time allowing him to do so.
    5. The authority to make returns in 1783, was tíy law confined to the then late deputies, upon office rights issued before December, 1776.
    
      Answer. By the act of 1781, the returning of surveys, is limited to nine months; which act, by act of the 5th April, 1782, is extended to such further time as to the surveyor general shall seem just and reasonable. Both the plaintiff’s and defendant’s survey, were returned by William Gray, for Charles Stewart, deputy surveyor; and as the plaintiffs must make out a good title in themselves, before they can disturb the possession of the defendant, unless William Gray had a right to return their survey, and the surveyor general a right to receive it, they cannot disturb the possession of the defendant. In this respect, the authority of William Gray to make the returns for both plaintiff and defendant, is upon the same footing; with this only difference, that the surveying fees are charged in the plaintiffs’ return, to Charles Stezoart, and in the defendants’ return, to William Gray: which is a fact for the jury to say, whether they believe that Gray had authority in one instance, and not in the other, to make the returns for Stewart.
    
    6. If the jury believe the plaintiffs’ survey to have been made on the ground, and the lines marked, any variation in the courses, and distances set out, will not vitiate the act. The actual lines on the ground, are the true appropriation.
    
      Answer. In this, the law is correctly stated.
    
      7. By the law of the 9th April, 1781, all persons claiming land by warrant or application, were called upon to pay the purchase money under the terms of the sixth section of that law, and on refusal or neglect to comply in six months from that date, the commissioners of the county were authorised to sell: and the defendant not complying with the law of 1781, and of the 5th April, 1782, by taking out his patent, concludes the right of the defendant under Wells.
    
    
      Answer. It does not appear, that the commissioners ever did sell this land as belonging to the plaintiffs or the defendant. This point, therefore, can have no application to the case before us.
    Hall, for the plaintiff in error.
    
      Greenough and Burnside, contra.
   The opinion of the Court was delivered by

Tilghman C. J.

[After stating the case.] 1. It appears to me, that the opinion declared by the President, was a substantial and right answer to the question proposed. An application vests in the applicant a right, though not a perfect right. It is the inception of a title, which may be rendered perfect by. future proceedings; or it may be voluntarily abandoned by the applicant, or lost by his negligence. Whether it formed an implied contract, by virtue of which, the proprietaries could have compelled the applicant to carry the purchase into effect, is immaterial, because no such contract was ever attempted to be inforced by the proprietaries.

2. Whether the facts in this case, shewed such negligence as should deprive the defendant of his advantage of priority of application, was a question which the Court was not bound to decide as matter of law, especially as during the revolutionary war, the settlements were broken up, through fear of the Indians, and very little business was done in the land office. The point might therefore have been very properly submitted to the jury. But the case involved a question of law, which, though not directly proposed to the Court, was adverted to, and a correct opinion delivered. If the defendant’s application did not call for the land on which his survey was laid, with reasonable certainty, his title would commence only from the return of survey; and in that case, the plaintiff having the first return, would have the preference, unless he had notice of the defendant’s survey before his own was executed. This is the settled law. But if, in truth, no survey was ever made for the plaintiff, but, WilHam Gray, or Charles Stewart, taking the draft which had been made for the defendant, dressed up a paper survey, and returned it for the plaintiff, it would have been a fraud which should not avail him. And this is what the President declared. There is no error, therefore, on this point.

3. To the Court’s answer to the third question, no objection is made ; it is unnecessary, "therefore, to make any remarks on it.

4, and 5. The fourth and fifth questions have been argued as one subject, and I shall so consider them.

Both plaintiff and defendant have considered the survey made by Charles Stewart as valid, because they both claimed under it. Now supposing it to be valid, the plaintiff’s counsel were wrong in contending, that the surveyor general had no authority to accept the return of the defendant’s survey on the 8th April, 1783 ; because by the 6th sect, of the acth of the 5th April, 1782, (2 Sm. Laws, 13,) the surveyor general was authorised to accept the returns of such surveys as should appear to him to have been faithfully and regularly made, from the late deputy surveyors, their heirs, or legal representatives, for such further period of time as to him should seem good and reasonable. But the plaintiff’s counsel, in their argument in this Court, (and no doubt in the Court below,) have introduced a matter of mere fact, from which they wish to deduce a legal inference. It seems that on the plaintiff’s return of survey, the surveyor general charged his fees to Charles Stewart, but on the défendant’s return, tq William Gray. Now, say the counsel, it appears from this, that Charles Stewart, adopted the work of his agent Gray, and made return of it, for the plaintiff, but he refused to make any return for the defendant; and therefore Gray did it without authority. The returns being both signed, William Gray for Charles Stewart, and both accepted in the land office, the presumption would be, that both were made by the same authority. But if Stewart had indeed refused to make return for the defendant, and Gray had imposed on the surveyor general by a fraudulent return, that would be a palpable fact, on which the Court had no right to decide. And, as I understand the opinion of the President, that fact was submitted to the jury. There is no error therefore, in the answer to the fourth and fifth questions.

6. The opinion on this point, is conceded to be right.

7. I think the answer to this question was very proper. Counsel ought not to propose a question, which has no bearing on the evidence in the cause. If the commissioners had sold this land, under the act of the 9th April, 1781, the question proposed to the Court would have been been very much to the purpose. But there was not a tittle of evidence of any act done by the commissioners. The act of April, 1781, was therefore out of the question. But if the Court below? had proceeded to investigate that subject, (which they were not bound to do,) it would have been found, that the period for making payment for lands' taken up under the late proprietaries, had been prolonged from time to time, by various acts of assembly, and is prolonged at the present moment. So that an answer on that point, must have been against the plaintiff, and they have no reason to complain, that it was not given.

Upon the whole, I am of opinion, that the plaintiffs in error, have not supported any of their exceptions, and, therefore, the judgment should be affirmed.

Judgment affirmed.  