
    [Sunbury,
    July 3, 1827.]
    BAGLEY and another against WALLACE.
    IN ERROR.
    Lands vested in the commonwealth, under the act of attainder of 1779, could be sold only in the mode prescribed by that act, and its supplement.
    ■ The limitation of suits for land, does not run against the Commonwealth.,
    Ejectment lies by a mortgagee: but, on his recovery, it is error to limit the right of redemption to one year.
    A verdict in ejectment for the mortgagee; “he to extinguish all claims of the
    
      Miles family,” is uncertain and erroneous. . '
    This was an ejectment, brought by Wallace in the Court of Common Pleas of Susquehannah county, against Tiffany, and Bagley his tenant, for one hundred and forty-two acres and eighty-two perches of land. Wallace had sold and conveyed the land. For a balance of the purchase money, Tiffany had given a mortgage, dated the 10th of Jiugust, 1821, and upon that mortgage this ejectment was brought. The defence was, a defect of title. The title asserted by Wallace, was held under warrants in the names of Barnabas Binney and John Dunlap; being two of sixty warrants for four hundred acres each, all dated the 22d of February, 1785, and which, as appeared by a land office receipt for two thousand four hundred pounds, the purchase money, dated the 3d of Jiugust, 1785, were all taken out, and paid for by John Nicholson, The leading warrant was in Nicholson’s own name, calling for land, on the northerly waters of Tunkhannock creek, lying at the second branch of the main or northerly branch of said creek, to include said second branch,' and a large hop bottom. Surveys were made on those warrants, and the warrants of Binney and Dunlap were laid on the land in question the 19th of September, 1785, by William Gray, deputy surveyor. The title of John Nicholson to the sixty tracts, was regularly brought down to Wallace, the plaintiff.
    The opposing title, appeared to be a warrant dated the 20th of Jiugust, 1774, to Benjamin Chew for three thousand acres; and a survey upon it, made the 24th, 25th, and 26th of September, 1775, of two thousand seven hundred and eighty-six acres, in nine adjoining tracts, by Charles Stewart, deputy surveyor. This survey of two thousand seven hundred and eighty-six acres, included a principal part of the land in question.
    A deed, dated the 16th of October, 1775, by Benjamin Chew, Andrew Allen, Samuel Meredith, Edward Shippen, jr., and Joseph Shippen, jr., declaring the warrant aforesaid, in the name of Benjamin Chew, to be held by them in common, together with other lands, amounting to thirty-six thousand acres: Robert Wilson to have one fourth part for locality.
    
      The proceedings of the supreme executive council, of the 1st of September, and 9th of October, 1789, making partition of the said thirty-six' thousand acres, with the other proprietors, in which five thousand eight hundred and seventy-three acres, were assigned to the commonwealth as her share, accruing by the attainder of Andrew Allen for treason; and, including in the share of the commonwealth, the said survey on the warrant to Benjamin Chew.
    
    It was also in evidence, that in 1788, one Hutchinson made a written contract with John Nicholson for the land in question in this ejectment, now called the Miles’s farm, entered into possession the same year, resided five or six years, sold to Robinson, who sold to Page; and, that Page went into possession about twenty-five years ago, and sold his interest to one Teuxbury, for two hundred and fifty dollars; that Teuxbury built a saw mill, planted an orchard, and sold out his interest and possession to John B. Wallace, the plaintiff in ejectment, for seven hundred and twenty dollars: That Joseph Miles then entered under Wallace, built a large house and barn, made other improvements, and resided until his death; that, in October, 1816, his administrators, by order of the Orphans’ Court, sold all the interest of Miles in the farm to John W. Robinson, for two thousand and five dollars: Robinson exchanged' it for other land with Tiffany, the defendant, and Tiffany gave the mortgage in question for the balance of the purchase money due and owing to Wallace, the plaintiff.
    The record proceeded as follows: “And thereupon the defendants’ counsel prayed the court to charge the jury, that the act of 1779, directing the mode of selling the forfeited estates, conferred no authority on the officers of the land office, to sell those lands by warrant in the usual form, and that Nicholson obtained no title to the forfeited lands, held by the state in right of Andrew Allen, by his warrants of the 22d of February and subsequent surveys.
    And the said judges, thereupon refused so to charge the jury, and charg-ed them as follows, to wit:
    The court are of opinion that the act of 1779, directing the mode of selling the forfeited estates, was intended to give authority to the officers of the land office they did not possess before, but was not to affect their general authority to sell wild lands, by warrant and survey; and that, when wild lands were vested in the commonwealth by forfeiture, they might dispose of them as any other of her wild lands; and, that the defendant would be safe in the payment of the money due on the mortgage; that the commonwealth after having sold the land, and received her full pay, and the land had been settled for more than forty years, and valuable improvements made and acquiesced in by the commonwealth; she would not, and that a purchaser under her, who must have full knowledge of the defendants rights, could not disturb them.
    That it is the rule, that the plaintiff must recover on his title as it was at the commencement of the suit But, in an equitable proeeeding like this, if it appears at the trial that the plaintiff has a good title, no injury will he done the defendant, by finding a verdict for the plaintiff for the lands in question, subject to be set aside on the defendants paying the amount of principal and interest due, within such reasonable time, as shall be fixed by the jury; if you think proper, on the plaintiffs paying the costs of suit.
    And, with that direction, left the same to the jury, and the said jury then and there gave their verdict as follows, to wit:
    That they find for the plaintiffs the lands: the plaintiffs shall pay the costs. The defendant, by paying up the mortgage and interest in one year, shall be entitled to the lands. The plaintiff to extinguish all claims of the Miles family.
    The opinion of the court was exceped to by Tiffany’s counsel, and '
    Eight errors were now assigned.
    1. The court erred in charging the jury, that the act of 1779, directing the mode of selling the forfeited estates, was intended to give authority to the officers of the land office, to sell and dispose of lands vested in the commonwealth by forfeiture.
    S. The court erred in charging the jury, that when wild lands were vested in the commonwealth by forfeiture, the officers of the land office might dispose of them, as of any other of her wild lands.
    
      S. Similar to the second.
    4. The court erred in charging the jury, that the defendant would be safe in the payment of the money due on the mortgage.
    5. The court also erred in charging the jury, that the commonwealth, after having sold the land, and received her full pay, and the land had been settled for near forty years, and valuable improvements made and acquiesced in by tbe commonwealth, would not, and that a purchaser under her, who must have full knowledge of the defendant’s rights, could not disturb them.
    6. And the court also erred in charging the jury, that if it appeared at the trial that the plaintiff had good title, no injury would be done the defendant by finding a verdict for the plaintiff for the land in question, subject to be set aside on the defendant’s paying the amount of principal aiid interest due within such reasonable time as shall be fixed by the jury.
    7. There is also error in the verdict of the jury, in this — that they have limited the time within which the defendant may redeem the lands by payment of the mortgage money and interest to one year.
    8. The verdict is uncertain.
    
      Case, the counsel for the plaintiff in error, argued the five first exceptions relating to the title. Tne question is of the utmost importance, involving many valuable tracts of land in our country. By the attainder pf Jindreiv JlUen, the right is yet in the common- • wealth, undivested and uninjured by time. ' The grant to Nich
      
      olson was a nullity. It was not vacant land. It had been appropriated by a warrant and survey. Not only was the mode and form of the alleged grant directly against the law, and the price of it inferior and unwarranted, but it was made by officers without even the colour of authority. The attainting act and its supplement, (1 Sm. L. 449, 467,) directs all and every the forfeited lands to be sold by the supreme executive council, not at ten pounds per one hundred acres, the price for which warrants for vacant land were issued, but at public auction to the highest bidder: and the conveyance to be by deed under the hand of the president or vice president in council. It will hardly be argued that the clear rights of the commonwealth can be divested by the act of limitations. As to hardship, liberality, &c., if those words can be applied in this case at all, they must be used in the legislature, and not here, against the commonwealth, in defiance of positive law.
    The 6th and 7th errors, would be of themselves conclusive. The jury had no power to decree a foreclosure. The plaintiff, when he might have sued b y scire facias, elected his remedy by ejectment; and must be bound by his own election. A mortgagee in possession, is in but as tenant by elegit, accountable for the profits. The mortgagor may redeem any time within twenty years. This right of redemption is expressly recognized by the act of 1705, which gives the scire facias. (1 Sm. L. 59. Burnet v. Denison, 5 Johns. Ch. 35. Even if the jury had the power to foreclose, the shortness of the time allowed here, one year only, is unreasonable, and without any example.
    8th exception. The verdict is upon a condition: and that a most uncertain one. The plaintiff to extinguish all claims of the Miles family. What Miles family is not said, nor which of them, nor what claims. The meaning of the jury can never be understood from the record: and the defendant can never be certain of securing to himself the benefit intended him by this part of the verdict. Jill claims” is more uncertain than all liens:” yet in Spalding v. Irish, 4 Serg. & Rawle, 322, the award required “all liens to be deducted,” and the objection was held fatal. In ejectment, a verdict for so much of the messuage as stands on a certain bank, bad for uncertainty. 7 Bac. Ab. 35. Verdict 2. Deihl v. Evans, 1 Serg. & Rawle, 367.
    
      Conyngham and Mallery, for the defendant in error.
    The warrant of B. Chew, not calling for the land in dispute, was greater in 1774 — surveyed in 1775 — not returned, or at any rate not returned for patenting, until October, 1775, after both our warrant and survey. In 1876, John Nicholson, was comptroller-general. His exertions during that year and afterwards, are a part.of the history of the country ; they were fully proved on the trial, and" were made for the benefit of the commonwealth more than his own, and in opposition to the Connecticut title, by which this part of the state was then likely to be overrun- He made a road for Pennsylvania settlers to reach that country, known at, this day by the name of Nicholson’s road. ' He brought on forty families, furnishing them with provisions, and all the means of settling a new country. He put Hutchinson on the tract .in question, and from that time a continued occupancy has been had for thirty-nine years under Nicholson, and under a title granted by the authorized officers of the commonwealth, and duly paid for. If at first the interference with the survey on the warrant of Chew was unintentional, yet there can be no doubt but the subsequent partition and assignment to the commonwealth of the survey in the name of Chew, as part of her share, was designed by the officers of government for the express purpose, of quieting the title of Nicholson, and thus inducing him to persevere in his efforts.to settle the country and protect the public lands from intrusion. All these acts were done knowingly, by the public officers, in the course of their duty, for the benefit of the commonwealth, and therefore, we submit, the commonwealth is bound by them, and our title valid.
    Besides, non constat, that the condition of Chew’s warrant was complied with. There is no proof of the payment of the purchase money, and payment ought not to be presumed in order to defeat an old title and a possession of forty years without notice, or the possibility of notice. A vacating warrant was not necessary. The land officers might proceed on the forfeiture; and after long acquiescence by one party, and long possession by the other, the reasons ought not to be required to be given. Lowrey v. Gibson, 2 Yeates, 81. Young v. Beatty, 1 Serg. & Rawle, 74, Andrew Allen’s right in the land was at any rate but a mere equity, and for that reason also, it was not necessary to be sold at public auction.
    The act of limitations, will protect under the facts of this case. That act protects against the commonwealth claiming under an individual. If the statute had commenced running against Allen, it must run on. We admit the statute is no protection to those claiming under the commonwealth by improvement right. We admit it is no bar, in any case, where the sovereign is in by original right of dominion; but, it never has been decided that the statute runs not against the commonwealth, ás to all secondary and derivative titles.
    The- defendant received possession from Wallace, and gave his ■ mortgage. Let him, therefore, pay the money, or give back the possession. He alleges an outstanding title. That title, if it ever existed, has been abandoned for more than forty years.. Neither defendant, nor those on the land before him, have been molested by it. Never, indeed, does it appear to have been mentioned, until now, by Tiffany himself, against his own right, and, as a defence 4o this action. Therefore, we submit, the court below were right in telling the jury, the defendant would be safe in honestly complying with his contract: and, that the commonwealth could not, and would not if she could, come in upon little objections of form, and sweep away the improvements and earnings of two generations of men, holding by warrant and Purvey, and full payment of the purchase money; while she, the commonwealth herself, by all her officers, has not only been silent as to any objection, but has been active in making up the title now asked to be set aside.
    The sixth and seventh exceptions appear to arise altogether from a misconception of the meaning of the verdict. The right of redemption is not restricted to one year. The substance is a stay of execution for one year: not meddling with' the redemption, but leaving it to the law.
    The eighth exception, to the wording of the verdict) seems but a small matter. The Orphans’ Court records, and the liens of the Miles family, had been read in evidence; the jurors referred to them as matters notorious. The substance of the verdict ought to have been taken without regard to the form; and, probably, it would have been so, had there been any doubt of the meaning of the jury at the time. But, retaining the words as they are, there is nothing ambiguous. The record shows, conclusively, what are meant by the claims of the Miles family. Steigleman’s Administrators v. Wolfersberger. 5 Serg. & Rawle, 167. Hart v. Porter’s Executors. Ibid. 201.
   The opinion of the court was delivered by

Tod, J.

This judgment appears to be erroneous. By the attainder of Andrew Allen, his lands, whether held by legal or equitable rights, were by the law vested in the commonwealth, to be sold by officers, specially appointed, and in a special mode, by auction, to the highest bidder; ahd the officers appointed to that duty were to be bound by oath, not to be interested directly or indirectly, or to malje any benefit by the forfeited, estates. The officers of the land office were bound by this law, and could not appropriate the forfeited estates, or any part of them, by warrant and survey: nor could they confirm such appropriation by any act, or by any acquiescence. Warrant and survey were for vacant lands only. The title of John Nicholson was null and void, so far as it interfered with the estate forfeited by Allen.

Then does the act of limitations help the case? We think not. The general rule is admitted, that the commonwealth is not bound by the statute; but it is said there is a distinction, that though the commonwealth is not bound in her sovereign right of original dominion, yet, as to every secondary or derivative right of property, she is bound by the act. This distinction cannot be admitted. It seems to be unknown to the law, and it would abolish the implied exception altogether, as far as it respects Pennsylvania; for it is supposed, the only title which the commonwealth can. have in lands must be secondary or derivative.

Admitting the title of the commonwealth, it is argued by the counsel of the defendant in error, that there exists no real cause to apprehend disturbance, by or under the commonwealth, to Tiffany’s possession. , They say, that such' a thing, never was heard of in Pennsylvania, and never will be, as an attempt by the government, to take from honest purchasers their property and their homes, after a quiet possession of two score years, on land twice purchased and paid for: first, from the old proprietaries, and then from the commonwealth, informally, indeed, but with the full knowledge of all the officers of government. AH this I believe to be true. Indeed, I could almost say, I am sure it is all true, provided the facts are as stated. Yet, what we are to decide, is the question of title: and, we are bound to say, that John Nicholson, though a public officer, had no more right than any other person, to take up public lands against the express directions of the law. If any difference, his being comptroller general, makes his title the worse. If innocent persons suffer, we can only regret that such is the law. It is not for the court to be generous, and to deal out by anticipation, the liberality of the government. ' Several thousand acres are said to be held in the same manner with the tract in question. Then, probably, it is a subject important enough to attract the notice of the legislature.

I think, too, that the plaintiff in error has sustained both his exceptions to the verdict. Taking the verdict in connexion with the charge of the court, it seems clear to me, that the jury intended to limit the right of redemption to one year. They had no power to impose such limitation; The act of 1705, (Sm. L. 59,) expressly recognizes the equity of redemption, in cases of recovery by ejectment on mortgage.

The extinction of all the claims of the Miles family, is a vague-finding by a jury, and for that reason, seems faulty. What wo.uld have been easier than to say what was meant? Such sort of description would hardly do in the previous stages of a cause. If it could be permitted in a verdict and judgment, the end of one dispute might be only the commencing of another.

Judgment reversed, and a venire facias de novo awarded.  