
    Gilday against Watson.
    June.
    A settlement right consists in a person's actually residing on the lands with his family, raising grain, &c.
    An agreement for division between settlers, never carried into execution by writing or possession, but where the possession was altogether different, would not be binding on a purchaser for a valuable consideration without notice.
    But suchagreement is j?™ee“^he ¡ef> tiers, if fairly ¡ng vague aml" u??ert¥“* claims before taking out of-¡^’sufficient consideration. If the posses— sion be incontheTgree-* ment, itisa jury to decide, whether the agreement were not rescinded by the parties.
    It is of no consequence, as respects a third person, whether a purchaser paid the consideration money in the life-time of the vendor or afterwards, or when he paid it; his being bound to pay what he contracted for, makes him a purchaser for a valuable consideration.
    The 5th section of the act of 26th March, 1785, is confined to claims existing at the passage of that act.
    In Error.
    [For a former Report, see 2 Serg. & Rawle, 407.]
    THIS was a writ of error to the Court of Cpmmon Pléas of Lycoming county, in an ejectment brought by the plaintiff in error, on which bills of exceptions to the charge . ,. , ^ of the Court, and to certain answers of the Court to questions proposed by the plaintiff’s counsel, were returned with the record.
    The charge of the Court was as follows: °
    
    . “ In this case, both the plaintiff and defendant claim the right of pre-emption by virtue of their improvements. In disputes of this kind, the first consideration for the jury is, , J whether the plaintiff or the defendant, was the first improver, or, in other words, which of them first acquired the right pre-emption. By the right of pre-emption is meant an equi- , , • ‘ , r , table estate, or a right of being a first purchaser from the Commonwealth of the estate which they hold, and is acquired by a person’s making improvements upon vacant land and making it a place of residence for himself, and actually residing there with his family, raising grain, &c. From the evidence it appears, that Jonathan Baity, under whom the defendant claims, built a cabin, and moved upon the land in dispute in 1796, and lived therewith his family for some . 1 J time ; cleared a garden, and raised beans and corn, as some of the witnesses prove, after which.he sold his improvement to William MiKee, and moved with his family to the state of ' * New Tork, and William MiKee, and his tenant James Alexander, lived upon the place until the death of William M'-Kee. The lease given by M'Kee to James Alexander, is dated the 30th March, 1801, for the cabin and fifty acres, for seven years, by which James Alexander, covenants to clear land. This ejectment is brought to recover the part of the tract which Alexander lived upon, or the greater proportion of it.
    “ William M’-Kee, before his decease, by his deed dated the 27th March, 1804, in consideration of four hundred dollars, conveyed this improvement to William and Oliver Watson. The deed was acknowledged the day of the date, before James Stezvart, and upon the 30th August, 1811, they took out a warrant in their own name for two hundred acres, including an improvement, interest to commence from the 1st March, 1796, and they had a survey made of 160| acres by John Batton, the deputy surveyor. By right of improvement, the improver may take up at least 300 acres. It appears, that this tract does not contain that quantity of land. MiKee,s tenant, Alexander, cleared land and raised grain from year to year, and since was turned out of possession, Watson the defendant, has lived there, and continued to improve the land. Contrary to the common order of charging juries, the defendant’s claim has been first stated, because it commenced prior to that of the plaintiff. It is in evidence, that about one year after Jonathan Baily had possession of this land, the plaintiff, William Gilday, in 1797, built a cabin and moved his family upon the land, and has continued to reside there ever since, has made some improvements, and has raised grain. From this it must appear to the jury, that the defendant claiming under the eldest improvement, must be preferred unless he has in some way parted with or abandoned his claim. This cause presents a singular case of a second improver bringing an ejectment to turn out the assignees of the first improver; not from any part of his uncultivated land, but actually from the house built by Baily, and the cleared land adjoining. The counsel for the plaintiff contend, that Jonathan Baily having expressed his intention of moving to New Tork state whenever his father, who resided there, would come or send for him, was not an improver, as required by the act of assembly, and that therefore Gilday, the plaintiff, was the first improver. It is in evidence, that Baily resided upon the land from 1796 until 1798, cleared about one-quarter of an acre, and, as some of the witnesses say, raised in his garden, beans and corn. This being the case, if Gilday came upon the land without the consent of Baily, who was there in actual possession, he would be considered as a trespasser; and Baily having resided upon the land with his family about two years, had a right, if he chose, to sell his improvement right, and move where he pleased. And his assignees having ever since continued their improvements and possession, must be considered as entitled to the right of pre-emption, and are improvers as required by the act of assembly, from the time Baily commenced his residence on the land. In this case the plaintiff claims no other dtle than a right of pre-emption; and from the evidence it appears, that the defendant, and those under whom he claims, have had more than seven years possession before the bringing of this ejectment. If the jury are satisfied from the evidence, that the defendant has had more than seven years adverse possession before the commencement of the ejectment, the statute of limitations is a bar to the plaintiff’s recovery. The plaintiff’s counsel have also contended, that there was a parol agreement to divide the land between Baily and Gilday, and also between M>Kee and Gilday. If there ever was a promise to make partition by either Baily or MiKee, being a parol promise without any partition being made or money paid, or possession delivered, it would not be valid under the act of assembly of the 21st March, 1772, to prevent frauds and injuries, against the defendant, a purchaser for a valuable consideration without notice. The possession of the plaintiff where he lives, would not be notice to the defendant, as he was not in possession of the land which he now claims. The decree of the board of property, that the land should be divided so as to give each an equal front on the creek, and to secure to each their improvements, was not conclusive upon the parties; they had a right to resort to their action at law, and that decree is not binding upon this Court and jury.”
    The counsel for the plaintiff then requested the Court to to charge the jury on the following points, viz.
    
    1st. That if the jury are of opinion, that Jonathan Baily’s settlement was for a temporary purpose, and not to make a permanent residence upon the land, nor with intent to take it rip, and appropriate it as his own, nor with a manifest intention of making it a place of abode, and the means of supporting a family ; that then William. Gilday was the first actual and bona fide settler, and had the first improvement right.
    
      2d. That if they believe,' that there were agreements between Baily and Gilday, and between M'-Kee and Gilday, to divide the land between them, so as to give the lower half to Gilday and the upper to M'-Kee, as stated by the witnesses Mahaffy, Reeder, and Murphy, Gilday ought to recover in this ejectment.
    3d. That Gilday’s residence was sufficient notice to the Watsons to put them upon inquiry as to his claim. That the common talk in the neighbourhood as to Gilday’s claim, and his assessments for taxes from 1799 to 1812, are presumptive evidence of notice.
    4th. That if the Watsons gave no consideration to M'-Kee they derive no equity from want of notice.
    5th. That if the parol agreements of Gilday with those under whom the defendant claims, are of such a nature, as they are stated by the witnesses, that the statute of frauds and perjuries will prevent the plaintiff’s recovery.
    6th. That compromising disputes and agreeing upon the division line between M‘Kee and Gilday, if the jury believe Reeder, Murphy, Mahaffy, and Dominy, although by parol, are not within the statute of frauds respecting parol sales of land.
    7th. That the seven years limitation act of 26th March, 1785, sect. 5, will not bar the plaintiff’s recovery in this case, if the jury believe the evidence which has been given.
    8th. That the Watsons paying no money to M'-Kee in his life-time, they were not purchasers for a valuable consideration protected by the statute of frauds and perjuries, until they did pay or give some consideration.
    To these points the Court instructed the jury as follows:
    1st. If Baily was not the first settler, then most certainly Gilday would be the first. This was fully explained in the charge.
    2d. Parol partition without marking lines or delivery of possession, is void under the act of assembly .to prevent frauds and perjuries, and could not affect Watson, a purchaser for a valuable consideration without notice.
    3d. Gilday’s residence, where he had possession, would be notice. But no notice to Watson, where Alexander >,.-!d under M'-Kee. Nor would the common talk or p: , . ;f taxes be notice.
    
      4th. The Watsons’ possession would protect them, unless the plaintiff shews some right to the possession. The deed purports to be for a valuable consideration, and M'-Kee’s administrators, since his decease, appear to have paid the purchase money, and Gilday has nothing to do with the bargain. If MlKee had a good title, Gilday has none for this land.
    5th. A parol agreement to divide without possession, and without consideration, and without lines being marked, is within the statute.
    6th. I have told the jury, that a parol agreement, if any such agreement there ever was, is void under the statute without lines and without possession, and without any consideration paid.
    7th. The statute, from the evidence, does bar the plaintiff’s recovery. The plaintiff was never in possession, but the defendant and those under whom he claims, have had 16 or 17 years possession before this ejectment was brought, and about 21 years now, according to the evidence. A person holding a mere equity of pre-emption cannot recover, unless he has been in possession within seven years before the commencement of his action.
    8th. It is of no consequence whether the Watsons paid what they had contracted to pay in M'-Kee’s life-time, or after his decease. They were bound to pay what they contracted, and it is no consequence to Gilday when they paid it.
    
      Burnside, for the plaintiff.
    Hall, contra.
   The opinion of the Court was delivered by

Duncan J.

Exceptions are taken to the charge of the Court, and their answers to certain questions proposed on the trial, by the counsel of the plaintiff in error. The answers must be considered in connection with the charge ; in fact the whole form one body of instructions delivered to the jury.

In framing these questions, it is to be observed, that the same question in substance is varied in form, and expressed in different language ; this unnecessary multiplication would naturally introduce some confusion, and it is not to be wondered, that in the progress of a trial, where the Judge is called upon instantly to give answers to a variety of questions artfully formed and presented in different dresses, there should arise some inconsistencies; and although the general charge might be most accurate, an answer to questions suddenly put to a Judge might be erroneous.

It is contended, that there was error in this instruction, as it respects the settlement right of Jonathan Baity, under whom the defendant claims. The evidence of his settlement was correctly left to the jury. The Court gave the legal definition of a settlement right; and there is no doubt from the evidence but that Baity, and those claiming under him, have continued a personal resident settlement on the land from 1796. Baity never abandoned for one moment. He sold his improvement and settlement right to M'-Kee. M'-Kee and his tenant Alexander, lived on the land until M'-Kee’s death. M'-Kee conveyed to William and Oliver Watson in consideration of 400 dollars, and it lies not with Gilday to object that the consideration was not paid in Al'-Keé’s lifetime. On the 30th August, 1811, the Watsons took out a warrant including the improvement, interest to commence from the 1st March, 1796. It is objected, that the Court have given no answer to the second question, or if they did it was erroneous. It was put in this form, that if the jury believed there were agreements between Baity and Gilday, and M'-Kee and Gilday to divide the land between them, so as to give the lower half to Gilday, and the upper to MiKee, Gilday ought to recover. The Court in their charge first say, that if there was a promise to make partition by either Baity or M‘Kee, it being a parol promise without any partition being made, or money paid, or possession delivered, it would not be valid, under the statute of frauds and perjuries, against the defendant, a -purchaser for a valuable consideration without notice. So far the instruction was proper; for an agreement for division never carried into execution, either by writing or possession, but a possession altogether different, could not affect a purchaser without notice; and the answer to the question is nearly in the same words. But the Court, in their answer to the fifth and sixth questions, have laid down the law in terms too broad, and such as might mislead the jury.' For they say, that parol agreements to divide without possession, and without consideration, and without lines marked, is within the statute ; and that the parol agreement, if any such there ever was, without lines,- and without possession, and without any consideration, is void. The jury might from this have concluded, that no parol agreement, without lines, possession, or consideration, whether Watson had notice at the time of his conveyance or before he took out his warrant, and paid the purchase money to the State, could be valid or binding.

Such agreements between settlers arfe usual, and if fairly made, without imposition, have ever received the sanction of the board of property, both before and since the revolution. They prevent litigation between the settlers. The, right is but a pre-emption, and they may agree to fix their respective pretensions, to locate the claims of each; and when they come to take out their office rights, their agreements have been constantly recognised by the board of property, and would be sanctioned by a court of justice. The fixing vague and uncertain claims between settlers, before they take out their office rights, would be of itself a consideration. But the agreement ought to be reasonably certain in itself, or capable of being reduced to a certainty, by something to which it refers.

In this case, the proper instruction to the jury would have been, to have left to them the existence of such agreement, and that it would, if clearly made out, be binding between the original"parties'; and at the same time have left it to the jury to say, whether it had not been abandoned, and rescinded between the parties ; the possession and improvement being made and continued in a manner totally inconsistént with the agreement: and to have instructed the jury, that although there'was such an agreement, which might be valid between the parties in equity, yet if secret, that is, not rescinded, or notice given to Watson; possession inconsistent, and if Watson was a purchaser without notice, equity would protect him ; and, indeed, it is so considered by the Court in their charge. But in the answers to the questions, they seem to consider it as altogether void even between the original parties. There is error in this.. As to Watson being a purchaser for a valuable consideration, the Court very properly stated, that it is of no consequence whether the Watsons paid what they had contracted to pay, in Ml Kee’s life-time or after his decease ; they were bound to pay what they contracted to pay, and it was of no consequence to Gilday when they paid it.

If there was such an agreement as the plaintiff contended there was, and if it was such as would affect the Watsons, the limitation under the 5th section of the act of 25th March, 1783, which enacts, that no person or persons that now hath or have any claim to the possession of lands, &c. or the preemption thereof founded on any prior warrant, where no survey has been made, or in consequence of any prior settlement, &c. without other title, shall thereafter enter or bring any action for the recovery thereof, unless he, she, or they, his, her, or their ancestors, have had the peaceable possession of the same within seven years next before bringing such action or entry, could not apply to this case, for the possession was in its nature a mixed one; he had a possession, and if this agreement was binding the possession was not adverse ; nor did he, being out'of possession, claim by virtue of settlement or occupation alone; but likewise under an agreement with Baily, under whom Watson claimed. But the provision does not embrace this case, for neither party had a possession or settlement at the time of the passing of the act, nor for near 20 years after. It is obvious, that it is confined to claims existing at the passing of the act; and such was the decision at Nisi Prius, at Mifflin, in 1802, in the Lessee of Brice v. Curran, 2 Sm. L. 307. The word now being made use of, demonstrably evinces the intention of the legislature to confine it to claims then existing, and that it should not embrace future claims; there can be no other intrepretation. This construction was not noticed on the trial, nor has it been urged now in argument; but it is conclusive on words which convey a meaning so clear, express, and free from all ambiguity and obscurity. There was, therefore, error in the answer to the seventh question, that this section of the act extended to the claim of the plaintiff, and barred his recovery, he not being in possession of the very spot for which this ejectment is brought within seven years before its commencement. The judgment is therefore reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.-  