
    Cluggage and others against The Lessee of Thomas Duncan.
    In Error.
    ERROR to the Common Pleas of Huntingdon county.
    
    This was an ejectment for a tract of land, which the lessee of Thomas Duncan, claimed under an application of 
      November 4th, 1766, No. 1812, by Lawrence Peterson, for 300 acres of land, including Turkey Hill. On the 4th of yanuary^ f/QY, a survey was made under this location, of 44iacres, by Richard Tea, the deputy surveyor, but it was . . ’ , r J J ’ , never returned. 1 he plaintiff, however, m order to shew that it had been made for one George Armstrong, gave in evidence a list of surveys made for the said Armstrong, which had been found in the office of the deputy surveyor, and which was admitted to be partly in the hand writing of the said Richard Tea, and partly in that of Robert M‘Kenzie, his assistant. He also proved, that Armstrong had paid the fees for surveying. A judgment was obtained by1 William Dowell against George Armstrong, in 1768, which was revived by scire facias, and judgment thereon in 1797, at the suit of Grace Parr, surviving executrix of William Dowell against fames Plain, administrator of George Armstrong. Execution was issued under this judgment, and the land was sold to Duncan, the plaintiff’s lessee, and conveyed to, him by the sheriff’s deed, dated June 2d, 1801. On the 4th August, 1801, the board of property granted an order to re-survey for Thomas Duncan. A re-survey was accordingly made by William Wilson under the direction of Colonel Canan, deputy-surveyor, and duly returned. Duncan had contracted to sell to Hugh Logan, and now sued for the use of his heirs.
    
      In an ejectment by A for the use of the heirs of B, a deposition taken in a former ejectment by B, against the same defendants, for the same land, but in which the plaintiff claimed under a different title, cannot be read in evidence.
    When an application for land is entered, it is presumed to be for the «sc of him in whose name it stands. JBui.it does not require veiy strong evidence to counteract this presumption. Superintending the survey, or paying the fees, has generally been deemed sufficient, unless rebutted by evidence, that the person superintending acted as agent, or unless possession or some act of ownership appear in favour of him, in whose name the application is made.
    If the defendants, who claimed under C, had proved, that D had made a verbal agreement to enter an application for the land in C’s name, a location taken out by D in his own name, would not enure to the defendants against the plaintiff, who purchased D’s right for a valuable consideration, without notice of such agreement.
    If the defendant in ejectment set up the act of limitations, he must stand on his own possession, and cannot call in the possession of one whose title the plaintiff has purchased, to assist him. A party may purchase as many titles as he pleases.
    If one have possession, by enclosure, of part of a tract of land, which has known boundaries, and at, the same tjme claims the whole, this is sufficient possession of the whole, and the act of limitations will operate in favour of the whole, if no other person have possession in fact, or in law. But if another have possession of part of an adjoining tract, whose lines intereferc, the law adjudges the possession of the unenclosed part to be in him who has the best right, and the act of limitations will have no effect, except as to the part actually enclosed.
    The plaintiff having discontinued a former ejectment, and having lain by while valuable improvements were made on the land, are circumstances from which the jury may infer an abandonment of his claim. But if the delay be short, and no improvements be made, it is of little moment.
    It is no objection to the plaintiff’s title, that in th efi.fa. or venditioni exponas under which the land was condemned and sold to him, the plaintiff was named as the executrix of William 
      
      Jit*Dowell, instead of William, Dowell. It is only a clerioal error which would be amended at any time.
    The defendants admitted themselves to be in possession of 100 acres, and 90 perches of the land, which they claimed by virtue of a settlement of Francis Cluggage, and also of a settlement of Jacob Hare, who had sold his right to Francis Cluggage. They then gave evidence to shew that Francis Cluggage began to improve in 1780 or 1781, saying he had purchased of Hare, and that he lived near the land in 1783, although he did not reside on it, until 1798. It was admitted that he had a survey of 100 acres and 90 perches, but on what authority it was made, it did not appear.
    The defendants offered in evidence the deposition of Wil
      
      Ham Samúels, dated August 24th, 1797, regularly taken under a rule of court in another ejectment, brought by the lessee of Hugh Logan against Francis Cluggage, for the land in qüestion, and which had been discontinued in 1801, before the in- ... ,. r , . ... .m . • stitution or the present suit, which was m 1805. 1 he plaintiff’s counsel objected to the reading of the deposition, and it was rejected by the court, .to whose opinion the defendants excepted.
    
      If a plaintiff in ejectment, after the evidence and aguments have been closed, and the court have charged in favour of the defendant, suffer a non pros, it affords a strong presumption, that his title is defective.
    Abandonment of claim is not in all cases a matter of fact; it maybe a conclusion of law, from facts. If a man make a settlement, and leave it for a great length of time, it will not avail him to say, that he keeps up his claim. Such verbal claims have no effect against the act of relinquishing possession, and in such case it is, the. right of the judge to declare the conclusion of law.
    
      The defendants then gave in evidence the deposition of one Gabriel Peterson, which stated that his father Lawrence Peterson, about the year 1763, improved a tract of land on the south-east side of Turkey Hill, cleared and fenced in between 3 and 5 acres, on which he built a cabin and raised corn; that about the same time Jacob Hare made an improvement on the north-west side of Turkey Hill, adjoining the settlement of his father; that his father and Jacob Hare shortly after shewed him the line which they had run between them, running along the top of the hill from Black Log Mountain to Shade Mountain; that some time after, when Armstrong was surveying land in that county, in consideration of Laxvrence Peterson and Jacob Hare hunting for hi’s surveyors, he agreed to take out locations for each of their tracts, and to have them surveyed; that at this time Hare had cleared and fenced two or three acres, and had raised corn thereon; and that both Hare and Laxvrence Peterson had built their cabins for the purpose of holding the land, and remained there about a year, when they were driven off by the Indians.
    On the 25'th March, 1780, Hugh Logan purchased the title of one William Winton, which he claimed by virtue of an improvement on the land. On the 12th February, 1795, he obtained a patent, which recited a deed poll from Lawrence Peterson to himself.
    It appeared that in the ji. fa. or in the vend. exp. which were issued against Armstrong, the plaintiff was named as the executrix of William MiDowell, instead of William Doxvell.
    
    The defendants also offered a variety of evidence to shew, that they had been in the actual possession of a part of the land in question, for more than twenty-one years previous to the commencement of this suit.
    It appeared further, that Gabriel Peterson had set up a claim to the land in dispute, under his father Lawrence Peter~ son, which was tried in 1801, before his honor Judge Ybates, an¿ jn which the plaintiff was nonsuited. The evidence being closed, the defendant’s counsel prayed » , ? . r ,, the court to charge the jury as rollows :
    1. That there were no facts proved, from which the jury could presume that the survey on Lawrence Peterson’s application was for the use of George Armstrong.
    
    Walker, President, delivered the charge of the court. The facts of superintending a survey, and paying the fees of surveying have always been considered prima facie evidence of ownership. This presumption, however, like every other, may be rebutted by direct proof. We are of opinion, that there is presumptive evidence sufficient to justify a jury in presuming, that the location in the name of Lawrence Peterson belonged to George Armstrong»
    2» That if the jury believed the testimony of Gabriel Peterson, relative to the engagement of George Armstrong, to take out applications for Lawrence Peterson and Jacob Hare, then any location taken out by George Armstrong will enure to the use of Jacob Hare, and those claiming under him, so far as the same covers the original claim of Jacob Hat e.
    
    Suppose that Armstrong did engage to take out the locations for Hare and Peterson» If the contest were between Armstrong and Peterson, Armstrong could not recover. . But such a parol agreement, suffered to lie over a long time, could not avail against an innocent purchaser, and such an one would hold the land discharged of the trust.
    
    3. That the deed from William Winton to Hugh Logan is evidence, that Hugh Logan held adversely to George Armstrong, from the date of that deed, and that the plaintiff’s suit is barred by the act of limitations.
    Although Logan did purchase from Winton, and held adversely to Armstrong, yet as he afterwards purchased the right of Armstrong, such adverse holding will be no bar to his recovering on Armstrong’s right.
    4. That as to all the land which was in the actual possession of Francis Cluggage, for twenty-one years previous to the institution of this suit, the plaintiff was barred by the act of limitations.
    All the lands actually within the fence of Francis Cluggage, or the defendants, will be protected b.y twenty-one yfears of adverse continued possession, prior to the' institution ©f this suit.
    5. That the patent granted tó Hugh Logan, and the déed poll therein recited, must estop the plaintiff in this suit from u • r r alleging title m his lessor.
    The plaintiff is not estopped.
    6. That the discontinuance of the suit, Hugh Logan v. Francis Cluggage, in 1801, and delaying tó institute a new suit, or give notice of an intention to do so, until 1805, are circumstances from which the jury may presume aii abandonment, or fraud, in Logan, provided, in the mean time, Cluggage of the defendants made valuable improvements on the land.
    It is always considered as a circumstance against a plaintiff, from which a jury may presume an abandonment, if he discontinues and lies by, whilst valuable’ improvements are made upon the land. In this case, the jury will judge from the circumstances. There is no proof of any house-having been built between 1801 and 1805. Let the delay avail the defendants as much as’it can. It appears to the court to b¿ very slight proof.
    
      7. That- the interest of George Armstrong' had’ not been legally transferred to Thomas Duncan.
    
    Either Axtfi. fa. or the venditioni exponas under which the land was sold to Duncan, named’ the testator Of the plaintiff William M'-Dowell, instead of William Dowell.- We are of opinion that the sale does, nevertheless, vest th'e title in Diincan. This is no court of error. We cannot notice exceptions unless they avoid the proceedings'. The act of assembly makes the sale good, although the’ proceedings shoüld be reversed for1 errof. ■ The sums mentioned-in'the executions are the same, and the defendant is the saiiie. There can be no question, but- that they afe- the" same case,-and that what is now objected to as a fatal error,, is only a'clerical mistake^
    8. That if the jury believe, that the” sufvey returned by John Ganan was made’ by the consent of Hugh' Logan, then the plaintiff cannot recover any land not included'in thafsurvey.
    This point does not'apply to the present case, as there is no land in controversy, which is not included inboth surveys.
    The court also charged the jury, that- Gabriel Peterson having set’ up= a claim to the' land, and instituted' a suit; which was tried in 1801, and decided'against him,-was strong presumptive evidence that his father Laxvrence Peterson had no title, under which the defendants could shelter themselves ; and that as to the claim of Hare, there was no pretence 0f title, under which they could be protected.
    The defendants’ counsel tendered a second bill of excepwhich was sealed by the court.
    The case was now argued by S. Riddle, for the plaintiffs in. error, and Huston and Duncan, for the defendant in error.
   Tilghman C. J.

This ejectment was brought in the name of Thomas Duncan for the use of the heirs of Hugh Logan deceased. The plaintiff derived his title from an application in the name of Lawrence Peterson, dated 4th of November, 1766, on which a survey was made by Richard Tea, (deputy surveyor) 6th January, 1767. This survey was not returned, but the plaintiff alleges it was made for the use of George Armstrong, who paid the surveying fees. A judgment was obtained by William Dowell against George Armstrong, on which an execution was taken out by his widow and executrix, Grace Parr. The land in dispute was levied on and sold by the sheriff, to Thomas Duncan, who sold to Hugh Logan, but did not execute a conveyance. The defendants claim under a settlement made by Francis Cluggage deceased, and also a settlement made- by Jacob Hare, whose right Francis Cluggage purchased.

The first exception taken by the defendants was to the opinion of the court of Common Pleas, on a point of evidence. The defendants offered the deposition of William. Samuels, taken in a former ejectment brought by Hugh Logan, in his lifetime, against Francis Cluggage. The plaintiff objected to this deposition, and the court rejected it. Had the deposition been taken in an action between the same parties, for the same land, it would have been evidence. But this is not the case. The former ejectment was by Hugh Logan, this by Thomas Duncan. It is said in answer, that this ejectment being for the use of Hugh Logan’s heirs, is in -equity their ejectment. This is very true, but when we take ~ an equitable view of the case, we must look at both sides. When Logan brought the former ejectment, he was not master of Armstrong’s title. Having afterwards bought that title of Thomas Duncan, the present ejectment was brought. So' that in truth, the two actions rest on different,titles, and.it might be doing injustice to the pláintiff to introduce a deposition taken under different circumstances. The points of •inquiry may be different, and consequently it may be necessary to ask different questions of the same witness. The plaintiff then has the law of his side, the two actions being between different parties on the face of the record, and so also, in my opinion, he has the equity. The deposition therefore was not evidence. The counsel for the defendant after the evidence was closed, requested the opinion of the court, on eight points, which are next to be considered.

1. “ That there áre no facts from which the jury can pre- “ sume, that the.survey on Lawrence Peterson’s application, u was for the use of George Armstrong.”

The court were of opinion, that the facts proved, afforded sufficient ground for a presumption in favour of Armstrong ; but at the same time, they left the matter to the jury: The facts proved, were, that Armstrong paid the surveying.fees, and that this survey was included in a letter to Richard Tea, from his assistant, Robert McKenzie, containing a list of surveys made for George Armstrong. When an application was entered, the presumption was, that it was for the use of the person in whose name it stood ; but it was so common a practice for applicants to make use of the names of other persons,, in trust for themselves, that it does not require very strong-evidence to counteract the first presumption. Superintending the survey or paying the fees, has generally been deemed sufficient, unless rebutted by evidence, that the person so superintending or paying, acted as an agent; or unless possession or some act of ownership appeared in favour of the person, in whose name the application was entered. In this cáse there is not only the paying of the fees proved, but also, the return of the assistant surveyor to his principal, which is a very strong circumstance; so that I think the jury would be warranted in presuming the property to be in Armstrong.

2. “ That if the jury believed the testimony of Gabriel Pe- ter son, relative to the engagement of George Armstrong, to “ take out applications for Lawrence Peterson and Jacob “ Hare, then any location taken out by George Armstrong, “ will enure to the use of Jacob Hare, and those claiming “ under him, so far as the same covers the original claim of “ Jacob Hare.”

■On this point, the opinion of the court was against the defendant, who claimed under Hare. If an application had been, “entered in Hare's name, it would have been notice that the legalfoundation of the title was in him, and the verbal agreefment of Armstrong would have strengthened that foundation, so that a purchaser under Armstrong could not have sheltered himself under the plea of ignorance of Hare's title. But as no application was entered in the name of Hare, it would be most unjust and contrary to all principle, that a secret verbal promise, should be setup against a bond fide purchaser for valuable consideration, without notice. Such was Thomas Duncan, who purchased Armstrong's right at the sheriff’s sale. I am of opinion therefore, that he could not be affected by any equity in Hare.

3. “ That the deed from William Winton to Hugh Logan, “ is evidence, that Hugh Logan held adversely to George “ Armstrong, from the date of that deed, and that the plain- “ tiff’s suit is barred by the act of limitation.”

It seems, that Logan had purchased the right of one Win-ton., who set up a title by settlement, before he made the purchase of Duncan. But this does not prove that Logan held adversely to Armstrong. A man may purchase as many titles as he pleases. Nothing is more common than to buy fi bad title, in order to get rid of a troublesome adversary. But it is an extraordinary attempt, to make Logan set up the act of.limitation against Armstrong's title, whether he will or tíot. No man is obliged to take advantage of the act of limitations. So far therefore, as Logan was concerned, he had a. right to say, that the act of limitations should not be set up against the title of Armstrong. If the defendant can protect himself by the statute, he has a right to do so. But then he must stand upon his own possession, and not call in the plaintiff to assist him. I. agree therefore on this point with the court of Common Pleas.

4. .“ That as to all the land which was in the actual pos- “ session of Francis Cluggage for twenty-one years, pre- “ viously to the institution of this suit, the plaintiff was “‘barred by the act of limitations.”

The opinion of the court was, that the statute was a bar as to all. land, inclosed -within fence, and no more. This opinion was right; Cluggage had no survey, therefore there was nothing to which his possession could refer, but his inclosure. If-one has-possession by inclosure of part of a tract of land, ■which has known boundaries, and at the same time claims the whole, this is sufficient possession of the whole, and the act of limitations will operate in favour of the whole, provided no other person has possession in fact or in law. But if another person has possession of part of an adjoining tract, the lines of which interfere, in such case the law adjudges the possession of the uninclosed part to be in him who has the best right, and the act of limitations will have no effect except as to the part which is actually inclosed.

5. “ That the patent granted to Hugh Logan, and the deed “ poll therein recited, must estop the plaintiff in this suit from “ alleging title in his lessor.”

Before Logan purchased of Duncan,ixo had obtained a patent for the land, in which is recited a deed poll from Lawrence Peterson to Logan. The observations, in my opinion, on the 3d point will apply to this. There is nothing like an estoppel. Logan found great difficulty in coming at the right title. He purchased three different titles, including the deed from Lawrence Peterson, if such a deed really existed. We. know very well that these deeds poll are often fabricated. Fictir tious names are often used in entering applications, and the real owners sometimes take the liberty of making a deed, and signing a fictitious name to it. It is a practice to be reprobated. How the fact was here I know not; but supposing it to be a genuine deed, it does not estop the grantee from purchasing another title, and defending himself under it. The defendants were neither parties nor privies, to the deed poll from Peterson to Logan, and therefore have no right to set it up as an estoppel.

6. “ That the discontinuance of the suit, Hugh Logan v. “Francis Cluggage in 1801, and delaying to institute a new “suit, or give notice of an intention to do so, until 1805, are “ circumstances from which the jury may presume an aban- donment, or fraud, in Logan; provided, in the mean time, “ Cluggage, or the defendants, made valuable improvements “ on the land.”

To this the court very properly answered, that the jury might judge of the matter, although in their own opinion, as there was. no proof of any houses being built from 1801 to 1805, the delay was a circumstance of but small moment.

r. “ That the interest of George Armstrong hath not been “ legally transferred- to Thomas Duncan.”

■ The-defendants contend that Armstrong's interest did not' pass, because either in the fi.fa. or vend. exp. the plaintiff is llamecj ag QraCe Parr, executrix of the last will and testament of William M' Dowell instead of William Dowell. This is no more than a clerical error, which the court, from which the writ issued, would amend at any time, and even if error were brought, the superior court would order an amendment. The Court of Common Pleas, therefore, was right in saying that the proceedings could not be declared, void in this collateral manner.

8. “ That if the jury believe that the survey returned by “ John Canan was made by the consent of Hugh Logan, then “ the plaintiff cannot recover any land not included in that “ survey.”

To this the Court of Common Pleas assented, but remarked that, it did not apply to the case before them, as there was no land in controversy, not included in Carian's survey.

On the argument in this Court, the plaintiffs in error brought forward two other exceptions, to the charge of the court — the whole of which has been laid before us.

1. “The Court erred in saying, that Gabriel Peterson's “failing in his action, was strong presumptive evidence “ against the title of his father, Lawrence, under whom he “ claimed.”

I can pexxeive nothing like error in this. . The plaintiff claixned under his father; after the evidence and arguments, of counsel closed, the court charged in favour of the defendant ; upon which the plaintiffs sufle2-ed a non pros. Why did he suffer it, but fxxm an expectation that the vet'dict would be against him ? If the verdict had been against him, would it not have been a strong pxxsumption of the defect of his father’s title ? And where is the difference betweexi a verdict and a non pros, under such circumstances ?

2. “ The Court erred in saying, that as to the claim of “ Hare, there is no pretence of title under which the defend-1 “ ant can be protected. It should have been left to the juxy “ to decide, whether Hare had abandoned his claim by set- “ dement.”

Where the matter is at all doubtful, it should be left to the jury. But abandonment is not in all cases a matter of-fact¿ It may be a conclusion of law from facts. Where a man makes a settlement and leaves it for- a great lexxgth of time, it . ¿loes not signify for him to say, that he keeps up his claim. The law declares that such verbal claims have no avail, against the act of relinquishing the possession. And in such case I consider it as the right of the judge to declare the conelusion of law. I am therefore of opinion that here is no error.

On the whole, my opinion is that the judgment should be affirmed.

Yeates J.

The plaintiffs have assigned for error, that the court have over-ruled the deposition of William Samuels in evidence. It consists of the declarations of Lazurence Peterson, in whose name the application was taken out six years afterwards, that George Croghan had given him the tract of land called Turkey Hill; and that he (Peterson) and Jacob Hare, under whom the plaintiffs claimed, had agreed upon the hill as the consentible line between them. There is this capital objection to the deposition, independently of others to the greater part of it, that Samuels was in full life at the time of the trial. The deposition was taken under a rule of court in another cause for the same land, wherein the lessee of Hugh Logan was plaintiff, and Francis Cluggage defendant, whose children are the plaintiffs in error. It was admitted on the trial, that Mr. Duncan is but a mere trustee, having contracted to convey the land to Hugh Logan, and that this suit is carried on for the use of his heirs. There may be said, therefore, to be a privity of interest and estate between the real suitors here and the parties to the former suit. But it ought to have been shewn that proper efforts were used to obtain the attendance of the witness, that he was sought for and could not be found, or that he was disabled by sickness from attending. (Gilbert’s Lazv of Evidence, 61, 62. and the authorities cited). The 48th rule of practice of this Court, that a deposition taken under a rule of court may be read in evidence without further proof, if the witness is resident within this state, and above 40 miles of the place of trial, will not remove this objection, because it evidently relates to witnesses examined in the same cause, and has always been so understood.

Whether there was such an adverse possession in the plaintiffs in error, or their father, of the lands in controversy, as took away the defendants’ legal right of entry, was a fact Submitted to the jury for their decision, upon the contradic - tory proofs. This affords no cause of error, or ground of C0mplaint. I know not what else could be said to the jury, after stating the variance in the testimony, unless the Court bad thought proper to give a more decided opinion, or declare (what I think they would be justified in) that the weight of evidence shewed that the limitation act did not apply.

There is no evidence positive or presumptive, from which it may be collected that the application was entered by Francis Cluggage, or for his use. We know that the names of other persons are frequently made use of, in order to evade the regulations of the land-office established on the 17th June, 1765 (2 Sm. Laws, 160), that no application should be received by the secretary for more than 300 acres to any one person, without the special order of the proprietories, or the commissioners of property'. The practice probably was adhered to for the emolument of the officers, after it had been shewn by experience that the precaution was fruitless as to its effect, in the absence of other proof direct as to the ownership of the application. Activity in procuring the application to be effectuated, and payment of the surveying fees, have always been regarded as presumptive evidence of property in the party. The presumption will stand until the contrary be proved. I have witnessed several instances wherein recoveries have been decided,* upon the ground of the surveying fees having been paid by the plaintiffs. I take it to be the duty of the presiding judge to give to the jurors his opinion in cases of presumptive evidence of the facts which may be fairly inferred ; he ought to enlighten their understanding, but not to lead them by the nose, according to the phraseology of Clive J. in Francis v. Baker, 5 Bac. Abr. 246, (1st ed.) If he errs in detracting from the just weight of testimony, or laying undue stress upon any part of it, the remedy of the party is by motion for a new trial. And we are bound to presume that the court will grant the motion, upon being satisfied that an error has been committed. The observations of the president are fortified by the consideration that Lawrence Peterson did not pursue his claim under the application. Whether there was any engagement by Armstrong to enter application for the use of Lawrence Peterson, was a fact submitted to the decision of the jury under all the circumstances of the case. But as to the plaintiffs in error, their claim of title, as well as their father’s, was under the supposed improvements of Jacob Hare, said to have been begun in 1760, but deserted -in 1763, and to which he never returned.

I cannot conceive'how the purchase made by Hugh Logan, of a supposed Lawrence Peterson, of his title to the lands in question, or his obtaining a re-survey and a patent thereon, can operate as an estoppel against his heirs, who have instituted the present suit, in the name of Mr. Duncan, for their use. No law or rule of morals forbids a man who has obtained a conveyance for land, which will not confer a good right, from purchasing in another title from the true owner. A man may lawfully have two strings to his bow; and the sound string is not vitiated or impaired in its effect by the unsound one.

I-fully concur in the charge of the court, that the discontinuance of Hugh Logan’s ejectment in 1801,- and the delay in instituting a new suit until 1805, are circumstances from which an abandonment may be presumed; particularly where the suit lies by while valuable improvements are made in the mean time on the land by the party in possession. But íñ this intermediate period little improvement was made, which the profits of the premises did not fully compensate. No building was erected thereon between 1801 and 1805. But here Was a delay of which the jury will judge from the circumstances. Let it avail what it can. To the court below it appeared to be slight proof an abandonment of title by Logan or his heirs, and I do not dissent from them,

Upon the whole, I am of opinion that no such error appears in the course of this trial, as would justify us in reversing the judgment of the Court of Common, Pleas 5 and, therefore, I am for affirming the judgment.

Brackenridge J, concurred.

Judgment affirmed. 
      
      
         2 Binney 89. Burd v. Dansdale's Lessee.
      
     