
    WESTMORELAND COUNTY.
    September Term, 1793.
    James Carnahan, Assignee of Adam Carnahan, v. John Hall.
    TO an action of debt on a bond, dated 20th April, 1784, and assigned 22d April, 1789, the defendant pleaded payment, with leave to give the special matter in evidence.
    
      Woods, for the defendant,
    stated, that this bond (with others) was given in payment for a tract of land, the greater part of which was affected by a prior adverse title. To prove this, after producing an article by Adam Carnahan, of the same date with the bond, for the sale of a tract of land to Hall, and conveyance of the land, of the same date, warranting it against all former rights; he produced an office copy of a survey, reciting it as made for George Risler, 23d September, 1776, on a warrant granted 20th August, 1776.
    
      Brackenridge and Young, for the plaintiff,
    objected to this testimony, for two reasons—
    
      1. Because Hall has never been evicted, but is still in possession of the land; and the plaintiff is not, in this action, called on to make good his right against an adverse title.
    2. Because, if evidence of want of title might be given, this evidence is improper to be received, without first shewing the warrant, on which the survey was made: for the best evidence must be produced, or the want of it accounted for, before an inferior kind can be received ; and the want of the warrant, unexplained, founds a presumption, that, if produced, it would make against the defendant.
    
      Ross, for the defendant.
    We are not now trying an ejectment; but shewing why, on equitable grounds, the money should not be paid now.
    But it was agreed, that the evidence be admitted; but the points be reserved for the opinion of the court, and be made part of the record, so as to be examinable on a writ of error.
    The survey offered was then shewn, containing 345 acres, and it was proved, that 266 acres of it was of the lands fold by Adam Carnahan to Hall.
    There was a verdict for defendant.
    At December term, 1793, the opinion of the court was delivered on the reserved points.
   President.

In this case two questions have been reserved for our opinion—1. Can want of title, without eviction, be given in evidence, in an action for the price of land sold?—2. Can a survey be given in evidence, before the warrant is shewn?

1. In an action for money due, the price of land sold, can the defendant give in evidence want of title in the plaintiff, at the time of the sale, and an adverse title in a third person, before any eviction or claim of this third person, and while defendant is in possession of the land sold.

Want of consideration may be given in evidence.—What would be a ground for an injunction in Chancery, ought, in Pennsylvania to be given in evidence. This is the most natural and effectual remedy. Possession of land without title, when a sale is in view, is nothing; it arises from a trespass, and can be no consideration, to make the price of the land a debt due. The possessor remains liable to the true owner, and ought not to pay twice. The man, therefore, who, intending to buy a title, gets only possession, gets nothing; and pays his money, or gives his bond without consideration. If the seller think it a consideration, let him come forward, and indemnify the buyer, against the owner. His refusing to do this is an acknowledgement of want of consideration.

3T.Rep.106.

Furnis v. Leicester Cro. J. 474.

Why then should not the defendant be allowed to give this want of consideration in evidence? Is the situation of the plaintiff worse, because the defendant has not been evicted? I think not. If a suit had been brought, to evict defendant, it would have been the duty of the plaintiff here, to defend the possession and title, which he sold. If the defendant had been evicted without collusion, the judgment would have been conclusive on the plaintiff. The plaintiff must, at all times, be presumed to know his own title, and now the burden of displaying and establishing the adverse title, falls on the defendant, who must shew want of title in the plaintiff, to make out want of consideration.

Our rules of practice appear to me well enough calculated, to prevent surprise on either party. The plaintiff could not be surprised, but from his own carelessness. No surprise is pretended. The special matter may be required to be previously set out. Complexity of pleading or evidence may be prevented, by an application to the court, who, I think would have it in their power, to reduce the matter, either of pleading or evidence, into such a compass or form, as not to perplex either the jury or the opposite party. May not a court as well prevent any improper complexity of evidence, as an improper multiplicity of pleas, or an improper multiplicity of counts in a declaration or indictment ?

Unless there be a difference in this respect, which I cannot see, between lands and goods, this point has been determined long ago; and want of title, without eviction, is warranted by precedent, as a good ground to recover back a price paid. Surely, then, it ought to be a good ground to prevent a payment. An action on the case was brought against L, for deceitfully selling sheep, affirming them to be his, when, in fact, they were the sheep of A. There was a verdict for the plaintiff, and a motion in arrest of judgment, on this, among other grounds, that it was not shewn, that the plaintiff had any damage, or that A. had retaken them, or sued him for them. But this objection was overruled, and judgment was given for the plaintiff: for if he would tarry, till the goods were taken from him, it might peradventure be mischievous to him, and he should be without remedy. I lay no stress on the distinction between that and the present case; that, in that cafe, the question came directly, in this incidentally, into view: for this distinction can only be regarded, to prevent surprize. In that action, want of title was the ground of the demand; in this, it is the ground of the defence. I place them on a footing. If a man could recover back, a fortiori, he shall not pay. If this matter could take back the price out of the pocket of the seller; shall it not keep the price in the pocket of the buyer? If it would support an action, shall it not defeat one? Or shall the plaintiff recover money today, merely that he may be made to refund it to-morrow? I am of opinion, that evidence of want of title, without eviction, is proper in this action.

2. Can an office copy of a survey be given in evidence, without first producing the warrant, on which it was made?

I see no difference, in this respect, between this action, and an ejectment. For the defendant must pay, unless he can shew want of title in the plaintiff, and, of course title in another. So the question is the same, as in ejectment. Evading payment is taking from him the land. The question cui bono, for what use, should the survey, without a warrant, be admitted, may well be asked. The only ground, on which the survey, without the warrant, could be admitted, so far as I can see, is that, from the survey, the jury might presume a warrant. From an arrest, by a lawful officer, a warrant is not presumed. And, in this case, without any other circumstances explaining the absence of a warrant, which is the best evidence of an inchoate title, and in the power of the party; the presumption must be the other way. From its not being produced, the presumption is, that a sufficient warrant does not exist; if it do not exist, there is no adverse title shewn; and if no adverse title be shewn, the verdict ought to be for the plaintiff.—The evidence of a survey, therefore, without a warrant, being inadmissible, there must be a new trial.

Note.—This case never came on again; I believe, because it was known that a warrant existed, and because more had been paid to Carnahan, than the value of the land for which he had title.  