
    EDWARD BRIEN and wife against WEST ELLIOT'S heirs and others.
    IÑ ERROR.
    •The Surveyor General of the Commonwealth had power to adopt a survey made after the 10th Dec. 1776,’and before the passage of the act of 5th April, 1782; and such survey is valid by adoption, whether the return was made by a deputy Surveyor or by the proprietary’s Surveyor General; and the circumstance that John Lukens Was the last Surveyor General under the proprietary government,' and the.first under the .Commonwealth* cannot affect the validity of'his acts in the one character of.the other.: these are to be considered redando singula singulis, as if they were done by distinct persons. _ . ...
    The discretionary powers of the Surveyor General, under the act of 5th April, 1782, are much greater than those that áre' merely incidental to the general nature of the office. . . • ■ ' . " , '
    Previously, to the act passed by the legislature of Virginia in 1779, a title to waste lands in that state, could not be acquired by improvement. Before-that time, those lands might have been,entered and-patented, notwithstanduig prior settlements by others. ■ ■ ■ ' • . ,- , .
    The basis of the compact between the states of Pennsylvania and Virginia is an admission that the jurisdiction over the territory shall be taken to have been in com-’ ' mon; and • that the claimants under One state shall be éntitled to .the same protection against claimants under the other, that they would-be' entitled to be-, tween themselves. - '•
    If 'the actual origin of a title under either state be the-.'earlier, it is not to be-over- ■ reached.'by a law of the oilier, assigning to the- opposing title a fictitious origin by the doctrine of relation. ■'
    The power of those two states to regúlale questions of title, to the' soil, even at the expense .of rights previously vested under either,.cannot now be Questioned. ■ The consideration Was the compromise of an inter-national dispute, and the individuals whose titles -were jeoparded, had no right to 'call on the-sta'te from which they held, to assert their fight's to the soil. • ' ' • ,
    A Virginia certificate is not conclusive'evidence of the facts statedin.it; a Pennsylvania claimant'may shew fraud, mistake, or trust.
    •This cause came up on an appeal by the defendants, from the Circuit Court of Allegheny, county, at which Justice Smith presided. ■ >’
    
    It was an action of ejectment for the recovery of 150 acres- of land in St. Clair township, brought by Eclioard Brien and wife against thea heirs of West Elliott, dec’d., the heirs of John Graham dec’d. and the terre-tenants.
    • The plaintiffs gave in evidence, a warrant to Edward Hand, dated, 24th Nov. 1773, indorsed^ by Alexander M’Clean— •“ReC’d. 1st Jan. 1774, executed 21st. Jail. 1778.” Also a warrant of the 24th Nov. 1773, to John.Elder,indorsed “Rec’d, 1st Jan. 1774, executed 21st Jan. 1778.” They also-offered “a survey dated Jan. 1778, made in pursuance of the warrant to Edward Hand, of 389 acres and -allowance", situate on the West side of'the Monongahel.a river, nqar adjoining Charters3' creek, heretofore in the cqubty of .Westmoreland,, now in the county, pf Washington',protracted and laid down from the field work of Alexander M’Clean,’Esq. I). 8. of Westmoreland County, by” • * John Lukens, S. ,G.
    ■ A receipt from John Lukens for ¡£3 7. 6, the office fees. Also a receipt of JLlexander-M’Clean, D. S. for £8, surveying.fees.
    The survey signed John Lukens, S. G-. was objected to by the-defendant on the ground tbat.it had not been regularly made and returned into the office by a deputy surveyor, but was made in the'office by, the Surveyor .General. This objection was overruled. , i . . ‘
    The plaintiffs then gave in evidence a patent'to Edwa,rd Hand, ■dated 9th March, 1782, for 389 acres which recited the before-mentioned.warrant .to Edward Hand’,' consideration ¿310 17 3. And" also a-patent to Edward Hand, dated 9th March 1782, for 371 acres, and which recited the warrant to John Elder, who by deed,-on the 4th December, 1773, granted it to the said Edward Hand. ■ ■
    
    There was evidence given by the plaintiffs- that Gen. Hand leased the land by parol, at an early period to Thos.' Watson, he rendering a bushel of corn as rent. '
    '' A regular chain of title from Edward Hand to the plaintiffs in this suit was now given in evidence. '
    During the argument* the defendants gave up their claim under West Elliott, and relied exclusively upon the title of Thomas Watson, under whom they claimed;, and of which they gave the following evidence: - •
    . That Thomas Watson■ made an actual settlement in the year J772, and in 1780,. 25th'April, obtained a “'Yirginia entry” for 400 acres, including his improvement. _ 1st Noyember-, ] 786, a survey was made of 273 acres 111 perches, Which was returned 18th May, 1787, and for which a patent issued- to Thomas Wa't-son, on the 22d March, 1791.
    Much parol evidence was given to establish the lines-' of, the plaintiffs3 survey upon the ground, and those of the defendants; and also about the possession, all which is so imperfectly contained in the paper book, that it would not serve to elucidate any point which-arose in the cause, .And it is only necessary to state that the plaintiffs, in the Circuit Court, also relied upon a “ Virginia <entry,” by Edward'Hand; of an older daté than that of Thos. - Watson ;- but in this Court they relied mainly upon their Pennsylvania title.
    His Honor who held the Circuit Court, was requested to charge the jury on the following propositions of the defendants.
    1st, Plaintiffs having 'shewn in evidence two warrants, one in the name of Edward Hand, and another'in the name of Elder., which do not call fo,r settlements: they are 'thereby precluded • from the benefit of any settlement anterior to the date of the warrants. The Virginia entries shewn do not vest any title in the plaintiffs, in law or equity; .the same not having been pursued, but abandoned. ■
    2d. The certificates of surveys exhibited’by the plaintiffs,, are not legal, evidence that the surveys were’ made by the deputy Surveyor, on the plaintiffs’ warrants.
    There-is no legal evidence that the plaintiffs’ surveys were made by a deputy -surveyor, or any person legally authorized to rriake -them. They are not, as against the defendants, legalized by the ¡plaintiffs’.patents.
    This proposition applies .particularly- to th.e defence under Watson’s title, he having settled on his land in 1772.
    -3d. Watson had an equitable title to a tract óf 300, if not 400 acres, including his improvements. The .plaintiffs, by their -warrants, had a right to survey two tracts of 300 .acres’each, with TO per cent, surplus: they surveyed on one of 'their warrants 389 ;aeres — on the other 371 acres. . Watson’s survey contains only 273 acres. He was living on his land at the date of. the plaintiffs’ survey, and John Bell proves that from the time of his entry, he elaimed the land in dispute. ■ Under these circumstances, the plaintiff had no legal right to encroach, upon .Watson,, and include a part of his land. Watson’s settlement, survey.and patent .are a valid title against the..plaintiffs.- .
    4.' Watson, or his representatives, have been in possession,' ■residing upon and improving the land in dispute sin-ce 1789. No person has resided on or improved the land in dispute under the plaintiffs. From these facts, the jury may lawfully -presume an -ouster of Hand, and those claiming under him. Their possession'1 was adverse, and is protected, to the extent of their lines, by the statute of limitations. ' ’
    5. The alleged agreement of Watson to become the tenant of Gen. Hand, if -proved, was a surrender.of his patent title, and his’only estate, without consideration; or upon a'consideration so‘ grossly inadequate,'as to evince gross ignorance-of his right, or fraud. .In either case it was -utterly void. .Considered with reference to all the testimony respecting it, and to -the fact that Brian made no defence for Watson’s.helrs'in the .suit of Elliott against them, conducted' by .his agent as counsel of Elliútt, the allegecf agreement of Watson with Gen. Hand, does not deprive the defendants' claiming -under him, of the benefit of the statute' -of limitations. ...
    6.. If the jury believe- the facts.stated by the witnesses’, they ®aav lawfully‘presume an ouster of Hand, and those claiming under him. The statute of'limitations will protect Elliott’.s pos-< sessions, to the extent of. the lines of his survey, '-
    • Smith, J, to the jury, ■ 1st. In. answering this proposition, it is to be observed,'that the three Virginia entries were not produced by the plaintiffs, until the defendants had shown their title, and therefore came before the Court, rather as repelling evidence, and in'answer to what had 'been shown by the defendants; The plaintiffs, in,the opinion-'of the Court, are entitled to.every advantage which they could have claimed under their Virginia entries, in case they had .had surveys 'made under them, and had taken out patents'thereon:, because by.-the' compact between Virginia and Pennsylvania, Edward Hand, after the a 3d ;of .September, 1780, had a right .to have-demanded from Pennsylvania patents for the lands described in.his entries, by virtue thereof, on paying to Pennsylvania, a.t'the rate of £0 16s. Bd. Pennsylvania-currency,' for one hundred acres. But. Edward, Hand also'took warrants from.Pennsylvania for the samé, land; upon .which he was entitled to patents, on paying at the-rate; of J,8 6s.,8cf; for an hundred acres. "Both gums Pennsylvania- could not,, and did not, demand for the land, Edward Hand, under these circumstances, ought to.have the benefit of both claims, and cannot be considered as having abandoned either. Edward? Hand’s entries,then,, are' prior in timé to Watson’s, and call for improvements thereon: -and it is certified that they were made in 1770, before any improvement is proved to.have been made by Watson. .As, then, between Hand and Watson, both claiming under Virginia, the certificates would be conclusive evidence of the date of Hand’s improvement;, and h'e having the older improvement, ought to:' prevail.. But if Hand, -at the date of his warrant, had had nó improvement, .yet if, before the date off his'entries,' he bought or obtained William Wood’s improvement, on which hé made an entry and obtained a certificate, it would be conclusive. •
    2d. It appears the Surveyor General certifies the plaintiffs’ surveys to have been made. At the' time the surveys were-returned by him to. the Secretary of the Land Office for patenting, he might have made the surveys in pergon, or have adopted the work of any other person in whom, he would-havé confided to make out and'certify the surveys; and this more especially so in relation to the field work or notes of one wlio had been a regular deputy surveyor, at a'time when the warrants were issued, directed and- delivered to him to be executed. Besides, it appears, from other evidence, that the surveys of the- plaintiffs, as certified by the Surveyor General, were actually made on the ground: that they were adopted and sanctioned by the land-officers, and patents thereon 'issued. Under all these circumstances, they are good, and the evidence of them sufficient. In addition to this, the warrants of General Hand'áre descriptive of 'the land, .and attached to it,' from their dates. " >
    3d. Under the Virginia, entries General Hand had a right to four hundred acres-undér each. .entry,- . His settlements,-it would appear, were all made in 1-770; and if so, prior in time to any settlement by Watson. Hand’s certificates would then' 'Depri-ma facie evidence, that.his improvements were made- in 1.770, ..against one claiming under-a Pennsylvania right, but as against Watson, who claims un.der a Virginia improvement'’, and entry, they are conclusive, ’
    4th. If the jury believe that Hand had the first warrants and entries under Virginia, and also the first surveys, he must be considered as in possession of all the land -within his lines, -until an actual possession was1 taken by Watson. The jury must decide when Watson took possession; and if they believe, that .Watson took ño actual possession, until after he had sold to Thomas Steel' in the fall, and that in 1794, he was On Hand’s land, and that he then agreed to become, and did become, Hand’s tenant; whatever his possession may have been before, it ceased, from this-time’to be adverse — no ouster in such case, if the jury believe the testimony, could be, presumed.. - The'jury will take, on this point, the testimony of.- General Gibson into their consideration. • If the jury, however, can say, from the evidence, that Watson and his representatives have had twenty-one years adverse possession .of the land in dispute, prior to the commencement of this action, the defendants can hold it.. - .
    5th. If the jury believe, that the agreement of Watson with Hand, (o hold under-him, was fairly -made, it would ■ prevent Watson's possession being considered adverse,'and if Hand’s-title be the better in. other respects than Wqtson’s, the- plaintiffs would be entitled to recover. If the jury believe that the agreement between Hand-and Watson, was in the nature of a.settlement and compromise of their differences as to their boundaries, it would be á sufficient consideration to support the agreement be-tvyeen them^and it would be binding dn both parties. Whether it was so or not,-is for the jury'to decide.
    6th. If the jury-believe, "that Elliott’s location did not call for the. land in dispute, it could not attách Until a survey was made on it, pnd returned into the Surveyor General’s office. His survey was made in September,- 1784': it does not appear-that it was r.etUrned before April,-1785, when he took out his patent: but long before this, Hand and those cláiming under'him, if you believe the' evidence, were in the possession of the land; first by warrant and survey, next in. actual possession by his tenants. ■ If this be -believed by you, Elliott’s survey -gave him no possession of the land, as against Hand; as, then, between Hand and Elliott, Handpaying the older legal title, the possession of the'land will be referred to his title, aud considered in him, until an actual possession‘was taken by Elliott, which was not until some time between 1803 .and 1807; during the agency of Mr. ,/i delis on,, when he cleared-a field of about ten acres, over Hand’s line. The suit was''brought in 1814. The statute of limitations, if the evidence be believed, therefore, eannot avail Elliott. If the jury believe the facts to be otherwise, and believe an ouster of Hand and those claiming under him, by Elliott and those under him, the statute of limitations, in such latter case, would protect Elliott’s possession to the extent of the lines of his survey.
    Tlie. jury having found- a verdict for the plaintiffs, the defendants-moved for a new trial, and assigned the .following reasons therefor: ' ■ ■ •.
    1. The Court erred in admitting in'evidence to the jury, the .certificates from the-Hand Office of the,surveys under the warrants, in the names of Elder unáHand.,
    
    TheCourt erred in charging the jury, in answer, to the first pi-oposition put to them by defendants’ counsel,; especially, iri relation, to the effect of the Virginia certificates produced by the plaintiffs.
    3. The Court erred iri their answer to the second proposition df the plaintiffs’ counsel'relative to the effect of the certificates of the Surveyor General, John Lulcens, as to the. surveys under General Hand’s warrants! . > ■
    ■4. The Courterred In assuming, that General Hand liad the prior settlement on the land in dispute, and predicating this as-» sumption upon his Virginia certificates; also in omitting to charge upon his right to encroach jjpon Watson.
    
    
      5. The Court omjtted to charge the jury upon the essential point stated in the defendants’ fourth proposition. ...
    6. ;The Court erred in charging upon the'defendants’ fifth proposition; and omitted the essential point submitted, relative to the consideration of Watson’s agreement with Hand.
    
    The motion for a newTfial was o.ver-ruled, and judgment entered upon1 the verdict, from which the defendants appealed.
    
      W. W. Fetterman for appellants,
    By the act of 21st March, 1823, Purd. Dig-. 258, copies of original' papers in.the office of the Surveyor General, are made evidence; hut tlie certificate of thfe Surveyor General given in evidence in this casé, was not a copy of any paper in that office; it was, jat all events, but a copy of a cop)’, and should not therefore have been received, Penn v. Hartman-, 2 Dal. 230. Morris v. V-'ánderen, 1 Dal. 65. Chambers v. Mifflin, 1 Pefin. Hep. 79. It could .not. have.Been a copy of the. return of the'deputy surveyor, for'it, does not appear that Alexander MeClea-n ever made any return: his field notes, if.they found their way into the office, was no return. ‘ A return is only good- when made in pursuance of the act of Assembly. Salmon v. Saneé, 3 Serg., & Sawle, S10. Davis v. While, 3 Yeates, 587. Hubley v. Chew, 2 Yedtes, 133.*' Ilubly v. Vanhorn, 7. Serg. & Sawle, 185.
    
      *Watson settled on the land in 17*72, and had aright, by virtue of such settlement, to appropriate-to himself three hundred acres. Qilday v. Watson, 2 Serg. & Sawle,- 407. Davis v. Seefer, 4 Bin. 161. -General Hand’s warrant was not obtained till 1773,*and did not recite any- previous .settlement; lie could not, therefore, claim under any settlement made before the date of the warrant; it would" have'been a fraud upon the commonwealth, lie cannot claim by virtue of his. Virginia entry, because he "cannot claim ünder both, states. Virginia act of May, .1799, 10 Henning’s Statutes, 40;' Compact between' Pennsylvania and Virginia, made by Virginia, 31st Aug. 1779: ratified by Pennsylvania, 23 Sept. 17S0. Sims v: Irvine, 3 Dal. 426.
    , There was no consideration for the lease from Hand to Watson and the court, under the circumstances of .the., case, should have instructed the jury, that it was prima jade evidence of fraud. There was no evidence at all that it was a compromise, as the Court told the jury might be' the case; It was such an agreement made with'a vyeak old man as chancery would -set aside, Clark-son v. Hdnnay, 2 Pr. Wms. 204.,
    
      Ross for appellees.
    It is not now the source of complaint that'the verdict andjudgment against"Elliott’s heirs has .done them injustice: I-take it for granted, then, that that- part’ of the defence has been' abandoned. ‘ , _
    from theif date, 24th Nov. 1773.'. In January, 177^4, they were •put into the hands of the deputy surveyor, and his-fees paid: in
    
      Gen. Hand’s warrants are precisely descriptive, and give title 1774'Dunmore's war commenced: — in *1775 a deputy surveyor would have be'en punished under the laws of Virginia, if he had attempted to make a survey: and in 1776 .the revolution commenced. 0nr surveys were madein 1778. By the ’act of 1779, Purd. Dig. 688, the titles derived from the proprietaries, to whom money was paid, are confirmed under the commonwealth. After this, no Virginian can come in and. say that our land officers acted improperly in granting this land.’ Warrantees, before 1776, shall-be entitled to patents, upon the payment of the purchase money: Actof 9th'April, 1781, sec. 5: by the 7th section nine mouths ^.re given to return surveys, and within, those nine months a return is made and a patent issued to Gen. Hand. It is not material when the survey-made by the deputy surveyor came into the office y for by the act of 1782.a /defect for want of a return within .the'nine months', shall, not.injure the warrantee.-Our patent issued béfofé this- act was paSse.d. ■ ;
    ; But it is .-said that no draft was rétur.néd by tire deputy survey- or. . There is no absolute necessity for a draft: air the deputy surveyor .was bound to do was to satisfy his -principal, that *he had made a survey:- this hé did,- and his principal'was satisfied. How” could.-the. draft .have been madétó corresp'ondexaetly with the lines .upon the ground, if the lines'had not-been run: five surveyors, who were-examined as witnesses,, say that the* lines are. there, and correspond ..with the draft made by the Surveyor General.' • . ■. ; . ;
    •The defendants’title arises-out of a Virginia certificate, granted to Thomas Watson( .which authorized him to have surveyed a quantity of-land,-if-the same had not been previously surveyed and by this authority-he run in 40 .acres of Gen. Hand’s land. Watsdn'bold all the land he had “clear of Hand’s line” to Sam~ pie;■ he also applied to the Surveyor-General ato throw outthe patented land.” He never intended to take any of Hand’s land. In Virginia, previously to 1779-, an improvement gave no preemption right. .Jones v. Williams, Washington’s Rep'. 230. If it did, our Virginia title is the elder, for our certificate calls for- art improvement in .1770 ; their’s- for an improvement in 17731 Gen. Hand obtained his 'certificate eterríajore cautela»
    But it. is said Hand cannot claim .by virtue of an- improvement Alleged! to have been máde before the tirne mentioned in his warrant. Whát- has a-Virginia title to do with-a Pennsylvanian? Try the cause-in Virginia upon the certificates, and we have the better titletry.it.in Pennsylvania upon the validity of our Pennsylvania warrants, ánd we have the better title. If Watson ever-designed to claim Hand’s land, he should, have obtained a special order, under án allegation of mistake, to have it re-surveyed. It is said we cannot claim under Virginia and Pennsylvania both ; why not ? If I purchase out forty different titles or claims, do I not purchase, the estate of ally and may I.not set them all up against the'forty-first claimant? . '• .
    . As to -the'agreement between Hand and Watson. Watson seeks put Hand An Pittsburg, takes him to (xen. Gibson’s house, and tells,him that he came to see him about his land, that Elliott was going to bring a suit against him. Hand then gives him permission to live on the land for his life, he rendering a bushel of -corn jver annum rent. Watson recognized this agreement as long as he lived, and never denied it, or .its validity. That ■ is left for them who claim, under him to do.
    
      
      Kennedy on the same side.
    During the provincial government, the Surveyor General was the only responsible surveyor known to the law) he might appoint general deputies pro hac vice: or a survey made before the date of the warrant, might have been and frequently was applied to itj or he might adopt the work of any individual as his own, if he thought it right, and certify that it was done in pursuance of a warrant. Harris v. Monies, 2 Serg. & Rawle, 557. Stock-man v. Blair, 5 Bin. 211. Shields v. Buchanan, 2 Yeates, 210. Funston v. M’Mahon, 2 Yeates, 245. Riddle v. Murphy, 7 Serg. & Rawle, 330. M’Kinsey v. Crow, 2 Bin. 105. Taylor v. Brown, 5 Cranch, 234. Craigh v. Bradford, 3 Wheat. 597. Stringer v. Young, 3 Peters’ C. C. 340
    The issuing of a patent was a matter which came before nearly every member of the Board of Property. From 1776 till 1781, many surveys were made, and they were declared to be valid by subsequent acts of assembly. The only object in making a survey necessary was to locate the grant, and distinguish it from Unappropriated lands. This was done in this case.
    
      Watson had no title till as late as . 1778, for an actual settlement under the laws of Virginia gave not even a pre-emption right. At that time he had no survey, and no marks of boundary. He was a citizen of Virginia, and claimed under that state alone. If Hand, in 1773, had obtained a Virginia entry for the land, he would have taken it from Watson: and shall not his Pennsylvania title obtained at the same time be better. A Pennsylvania improvement has preference to a subsequent Virginia entry. Smith v. Brown, 1 Yeates, 513. A Virginia certificate is not conclusive against a Pennsylvania claimant, but may be contradicted. Hyde v. Torrence, 2 Yeates, 440. Jones v. Park, ibid. 448.
    In order to give title by the statute of limitations, the possession must be adverse. Burns v. Swift, 2 Serg. & Rawle, 436.
    
      W. Forward in reply:
    The certificate of the Surveyor General should not have been received in evidence, because it was not authentic: if evidence at all, it could only be so in pursuance of the act of 1823, which provides, that copies of papers in the Surveyor General’s office shall be received in evidence: but this does not purport to be a copy of a paper in the office, because it is expressly said that the original is not in the office. Suppose Luleens were yet alive, yet Surveyor General, and here in court, could he give evidence of what is contained in this certificate? Could the field-notes of the deputy "surveyor be given in evidence without proof of his handwriting? A survey is essential to a title, and it must be a legal survey. The act of 1777 abolished the office of Surveyor General: — the act of 1781 authorized the return of surveys, made upon other warrants, within a reasonable period, provided such surveys were made previous to 1777: — those made after 1777 were void. In this case it does not appear when the survey was returned : or whether it ever was returned by a deputy Surveyor. It was not even the case of an official survey and- return. The warrants being descriptive, if they are so, is not material; because whether descriptive or not, they will not give title, unless a survey was made and returned. The fact of a patent having issued, does not give authenticity to- the previous proceedings to obtain title.-
    
      Thomas Watson entered on the land under Pennsylvania ; for in 1-772 Virginia did not claim the jurisdiction to the country where this land lies ;.it was not till 1774. If Hand had brought his ejectment in 1774 against Watson he could not have recovei’-ed; for Watson had a settlement right, which had¡ been commenced in 1772, such must also have been the case at any time-previously to the compact between- the states in 1779, and if so, does not that compact, in positive terms-, secure to Watson his improvement right under Pennsylvania? If the plaintiffs can-justly claim under both their titles, derived from Pennsylvania and Virginia, why shall not the same justice bo meted out to the defendants? The- plaintiffs’ warrant was for 300 acres, upon which was surveyed 379 acres including 40 acres of our land, for the- defendants are entitled by their improvement to 400 acres In a reasonable shape;- can they claim the surplus beyond ten per cent., particularly as it interferes with our claim: the case of CreeJe v. Moon. 7 Serg.- & Bawle. 330, is full to this point.
    There was no acquiescence by Watson, for he complained when Hand’s survey was made and frequently afterwards..
    With respect to the lease. It does not appear that Watson-came to Hand, and not Hand to Watson: when or by whom the proposition was made does not appear: What was the agreement? Not a sale, for there were no ceremonies of a sale: there was no change of possession: it could have passed no title, in the form known to the law: — there was no money or other consideration paid ; and therefore no execution of the agreement. Was it a compromise of a doubtful title? One gave all; the other took all.
   The opinion of the Court was-delivered by

GibsoN, C. J.

The title of the- plaintiffs under Virginia- is worthless, and they do not in fact rely on it. Their title under Pennsylvania consists of two locations of the 3d April, 1769, surveyed by the late proprietary Deputy Surveyor, in Januaiy, 1778; .and returned by the proprietary Surveyor General, and by him .adopted as Surveybr General under the commonwealth, on the 5th March, 1782. On these surveys patents issued on the 9th of March, in the same year. If this .title be regular on its face, it ■will remain to inquire whether it be not earlier than that of Wat.son, the defence on the part of West Elliott’s heirs being abandoned.

The objections are, that the surveys were made by a proprietary -deputy after the 10th of December, -1776; that t-hey-were returned not by the proprietary deputy, but the proprietary Surveyor General; and that the Surveyor General of the commonwealth had not power, to adopt them under any of the acts of assembly .which provide for surveys by-the late proprietary officers after the ■closing of the Land Office.

Nothing is clearer than that they would have become valid by adoption, under the act of the 5th of April, 1782, had they been ■returned by the proprietary deputy instead of the proprietary Surveyor General. They-would then have been exactly-within both the letter and spirit of its provisions. In Hubley v. Vanhorne, 7 Serg. & Rawle, 190, it was .conceded that the surveys would have become valid -under this act had they -received the -sanction of the Surveyor General, but as that officer had either positively withheld i t, or never acted on the subject, it was held that the act had not been complied .with. Here the surveys were expressly ratified; and the question is whether the return required ■by the act might not be made by the proprietary Surveyor General instead of his deputy; for that John Luleens was the last Surveyor General under .the proprietary government, and the first under the commonwealth, cannot affect the validity of his acts in .the one character or, the other: these are to be considered, redden-,do singula singulis, as if they were done by distinct persons.

Why might not these surveys have been executed by the surveyor General in person? Even under the commonwealth, when the latitude of discretion allowed ;by the proprietaries -who had •absolute power over the subject, has been greatly abridged by positive law, if not entirely taken away., his act of adoption has been held to ratify a survey by one who was not the proper officer, and who consequently had acted -without authority. If then his .power be competent to supply the want of authority in the first instance, surely it must be competent to supply the formal omission of tabling and-plotting the field .work whieh constitute, not the survey, but the evidence of it. But the discretionary powers of this officer under the act of 1792 are much .greater.than those that are merely incidental to the general nature of the office. He •was to act without, .regard to form, and receive surveys o.n fhig single condition — that they should “appear to him to have been faithfully and regularly made:” that is, as I understand it, made not surreptitiously, but on the ground. And he was to receive them not only from the late deputies, but in case of their death, from their legal representatives. It must ¡therefore have been deemed of minor importance that he who had made the survey should return it. The great matter was to give assurance of a fair execution of a bona fide grant by the late proprietaries before the closing of the land office; and of this the new Surveyor General was made the arbiter, as to substance and as to form. There surely was no intention to exclude, for want of a formal return, during a period of official confusion in the course of a revolution, which ended in a change, not only of government, but also of ownership of the soil. A construction so rigid would frequently render the attempt of the legislature abortive; for there are few executors or administrators who are competent to complete the office work by draughting the surveys for return. For such a state of things was the act passed ; and its provisions are well adapted to it. The field work and tabling being returned, from which the Surveyor General is perfectly able to judge of the fairness and regularity of the survey, it is not easy to see why he might not adopt it, and cause the draught to be made in the office. To this the Surveyor General evidently thought himself competent; and the cotemporaneous construction of an experienced officer, such as was Mr. Luhens, is entitled to decisive respect.

The heirs of Watson claim under Pennsylvania, and under Virginia. As an improver under Pennsylvania, Watson might have appropriated the land in dispute, by a survey within a reasonable time. His improvement was begun in 1760,- but as a Pennsylvania settler he has had no survey at all. The plaintiffs’ surveys were made in 1778; and the owner of the locations was certainly not bound to wait beyond that period to give Watson an opportunity to exercise his right of prior appropriation, unless enough were not left to make up his quantity in another quarter: a fact that does not appear. Watson was therefore postponed by his laches; and even should his survey on the Virginia certificate be a valid designation of boundary under Pennsylvania, yet even that was posterior to the plaintiffs’ survey. Watson’s heirs are therefore driven to a defence on their Virginia entry of 1780.

Previous to the act passed by the legislature of Virginia in 1779, a title to waste lands in that state, could not be acquired by improvement. “Before that time, those lands might have been éntered and patented, notwithstanding prior settlements by others; and even this act, which considers settlers entitled to some compensation'for the risk they had.run, allows them a preference only to such settlements as at that time were waste and unatpho-treated. As to priority of settlement, it might still remain a question between persons, both of whom claim under the same sort of title; but the law of 1779 does not set up rights of this sort so as TO DEFEAT THOSE LEGALLY ACQTJIRED TINDER WARRANTS: IT APPLIES TO CONTROVERSIES BETWEEN MERE SETTLERS.” Such are the words of the president of her Court of Appeals, in delivering its opinion in Jones v. Williams, 1 Wash. Rep. 231. It is said, however, that this is predicated of prior appropriations under grants by Virginia, and not those of Pennsylvania, which were disregarded before the period of the compact. Be it so. But whatever may have been the case originally, the titles under both were, as regards the question of priority, put by the compact exactly on a footing; and are by fair construction of it, to be treated as if they had always been so. Unless they were considered to have been, in relation to each other, valid, co-existent rights from the beginning, as far as regards jurisdiction, how could there be any comparison as to dates? The very basis of the compact is an admission that the jurisdiction shall be taken to have been in common; and that claimants under the one state shall be entitled to the same protection against claimants under the other, that they would be entitled to between themselves. If then the plaintiffs’ title under Pennsylvania was perfected before Watson had'even colour of title by the laws of Virginia, will an ex post facto law, which it is conceded would not give him title by relation against a prior grantee of Virginia, be more efficient against a grantee of Pennsylvania? It is an unfair construction to say, that a Virginia title shall be judged of as it happened to stand by the laws of that state at the time of the compact. If the actual origin of a title under either state be the earlier, it is not to be overreached by a law of the other assigning to the opposing title a fictitious origin by the doctrine of relation. Granting Virginia might lawfully declare that an unauthorized improvement should be taken to have vested title from its inception, against herself, yet having recognized the grants of another state as being equally valid as her own, it is fair to say she recognized them as being attended with all the incidents of her own, against which, it appears by the judgment of her own Court, the doctrine of priority by relation never prevailed. Neither is the power of the two states to regulate questions of title to the soil, even at the expense of rights previously vested under either, now to be questioned. The compact is necessarily founded in an assumption of it. There was no constitutional limitation on either side; and the parties acting in the capacity of sovereigns, were fettered by no rule but their sense of expediency and justice. The consideration was the compromise of an international dispute, and the individuals whose titles were joeparded, had no right to call on the state from which they held, to assert their rights to the soil.

In the act of ratification by Pennsylvania it was resolved, “That although the conditions annexed by the legislature of Virginia to the ratification of the boundary line agreed to by the commissioners of Pennsylvania and Virginia on the 31st of August, 1779, may tend to COUNTENANCE some unwarrantable claims which may be made under the state of Virginia in consequence of pretended purchases or settlements pending the controversy, yet this state (Pennsylvania) determining to give to the world the most unequivocal proof of its desire to promote peace and harmony with a sister state, so necessary in this great contest with the common enemy, does agree to the conditions proposed by the state of Virginia in its resolves of the thirty-first of June last.” And this was at one time supposed to be a waiver of objection to any Virginia title that should be certified. It was doubtless an agreement to close with Virginia on her own terms, and to encounter the danger of fraud and imposition of surreptitious titles which those terms rendered more imminent; not to waive all scrutiny and submit to fraud and imposition where it might be detected. Such a construction would in all cases have made the certificate conclusive evidence of the facts stated in it; which it was held in Smith v. Brown, 1 Yeates, 516, and the lesse of Hyde v. Torrence, 2 Yeates, 445, not to be. In the latter it was declared that a Pennsylvania claimant may shew fraud, mistake, or trust.; or that the Virginia claimant was not in the country before the first of January, 177S — the point of time limited for the commencement of his settlement. To me however, the certificate seems not only inconclusive, but entitled to n,o particular favour.

The defendants also rely on the statute of limitations; but the proof is clear and full that the possession was not adverse, but by permission. I see no reason therefore .to disturb the verdict.

Huston, J.- and Ross, J. dissented.

Rogers, J. took no partin the decision, being of affinity to the plaintiffs.

Judgment affirmed.  