
    Hubley against Vanhorne and others.
    In Error.
    Tuesday, June 19.
    ERROR to the Court of Common Pleas of Columbia county.
    Survevs made in April, 1777, by an agent for the person who been the PraP1-'etary, are void, and give no title against an intervening survey. They misht have ac— quired validity lrso.or 5th ^if’the^rov's'ons of were not con[heya^e'not fThe April, 1781, 1793 not reach
    a void sur(N 'tson° son procuring survey.qUeUt
    wher?a precisely deonly to a’comtaches only survey.°tUaI
    pla!nsign for error g^^b^the Court which ble as his re-" ¶»*.
    Ejectment to August Term, 1816, brought by Hubley, against James Vanhorne, Robert Montgomery, mas M-Henry, John M-Earran, and William Scott, „ „ , J ’ ot Vanhorns*
    
    The plaintiff claimed title by warrant of the 16th August, * • w 1773, to Randall Michael, for 300 acres adjoining John Koyle, and by warrant of the same date, to Joseph Hubley, for acres adjoining Thomas Polegreen ; and gave in evidence, receipts for the purchase money of both tracts, dated the 16th of August, 1773. Joseph Hubley and Randall Michael by their deeds of the 17th of August, 1773, conveyed to Ludwig Lauman, Michael Dejfendorfer, Christian Wirtz, Everhart Michael, William Bush, William Atlee, Adam Hubley, John Musser and John Hubley. By deed of the. 4th of April, 1775, Bernard Hubley, Ludwich Lauman,, Michael Deffendorfer, John Musser, Adam Hubley, William Atlee, William Bush and Everhart Michael, conveyed to Christian Wirtz and John Hubley. Upon these warrants there was a survey made by Joseph J. Wallis for Charles Lukens, (who had been the deputy surveyor,) upon the 16th and 17th of April, 1777. Upon the’ 11th of April, 1793, a caveat was entered against the receiving of the returns of these surveys so far as they interfered with Benjamin Chew's survey. The Board of Property, by their order of the 15th November, 1796, re" quired William Montgomery, the then deputy surveyor of that district, to make return of these, together with other surveys made for the same company, and in pursuance of this order, William Montgomery surveyed upon Randall Michael's warrant, 279 acres, and 28 perches, and upon Joseph Hubley's warrant, 112 acres, and 37 perches. Both these surveys were made upon the 24th November, 1796, and were returned the 27th of June, 1797, by William Montgomery, the deputy surveyor. It was in evidence, that upon the 20th November, 1796, the surveying fees were paid, and that the taxes had been paid regularly by the plaintiff. The leading warrant was in the name of Bernard. Hubley, which was thus described : “ for 300 acres of land, to include a deer lick, and a small run ; waters running a westerly course, about twenty-five miles from fort Augusta, and about nine miles from the north east branch of the Susquehanna.” The other warrants of the company were adjoining this and each other until they came to Randall Michael and Joseph Hubley.
    
    The defendants title commenced by warrant of the 23d of February, 1790, to William Scott for 100 acres, bounded by land in possession of Abraham Kline on Green creek, including a small cabin in the county of Northumberland; upon this warrant there was a survey of 95 acres, and 70 perches, made upon the 11th of November, 1796, by William Montgomery, deputy surveyor; and by another warrant of the same date, to John MlFarran, for 120 acres, on the waters of Green creek, adjoining Miller’s, on the east side of said creek. A survey was made on this warrant upon the 11th of November, 1.796, by William Montgomery, the deputy surveyor, of 126 acres, and 118 perches. Upon the return of their surveys it was noted by William Montgomery, that the whole, or nearly the whole of these surveys, were included in a survey made for the Lancaster Company. The purchase money of these warrants it appeared, was paid on the day they bore date.
    On the trial in the Court below, the charge of the Court was as follows:
    In comparing the title of the plaintiff and defendants, it will be found that the plaintiff’s warrants of the 16th of August, 1773, are prior to those of the defendants, which are dated upon the 23d of February, 1790. But the surveys of the defendants, which were made upon the 11th of November, 1796, are before any legal survey made for the plaintiff, which was not made by Montgomery until the 24th of November, 1796, The survey made for the plaintiff by J. J. Wallis in 1777, was not a legal survey, no person having authority at that time to make a survey. Warrants are generally considered of three kinds; those which are descriptive of the land to be surveyed upon them; those which afe only 1 descriptive to a reasonable intent; and those which are called lost or removed warrants. Upon descriptive warrants, the title commences from their date, provided a survey is made within a reasonable time j but upon those which are only descriptive to a reasonable degree, the title commences from the time of their survey. Upon what are called lost or removed warrants, the title does not commence before the return of survey. If the warrants both of the plaintiff and defendants are descriptive only, to a reasonable degree, Which is a factfor the decision of the jury, the title of the defendants should be preferred, as they have the frst legal survey. But if the jury believe that the plaintiff’s warrants are descriptive of the land, has he used due diligence in obtaining a survey ? The plaintiff’s first application to the Board oí Property was in 1793, which %vas after the'date of the defendants’ warrants ; and the order of the Board of Property of the 15th of November, 1796, was after the defendants’ survey of the 11th of November, 1796. Those surveys made by Wallis in 1777, have already been decided by the Supreme Court to be illegal, and without authority; the Court do not consider those surveys notice to the defendants which would postpone their claim upon their warrants obtained in 1790. A deed which has been recorded, without having been previously legally proved, is not considered as legal notice to an opposite claimant, much less would marks made upon the ground, when no surveyor was authorised to make surveys. Those surveys were permitted to be given in evidence-to shew with what diligence the plaintiff has pursued his claim, and for no other purpose.
    • The defendants had also set up on the. trial, as a bar under the Statute of Limitations, a possession of twenty years, in themselves and in Joseph Brittain and Jacob Force, whose right they alleged they had purchased. The plaintiff, among other points submitted to the Court, requested them to charge the jury, as the 5th po.int, that neither Brittain,or Force, during their occupancy of the house, ever designated their boundaries as improvers, or claimed any .particular number of acres, and therefore even if the defendants were protected by the Statute of Limitations at all, it could only be for the exact quantity actually enclosed and occupied twenty-one years before the ejectment was brought.
    The Court charged, that whether the boundaries of Brittain and Force were designated twenty-one years before the commencement of this ejectment, was a fact for the jury. There must be definite boundaries ; otherwise the defendants would be confined to what they actually occupied twenty-one years before action brought.
    The following errors were now assigned in this cause by the plaintiff.
    1. Error in stating to jury, that the surveys of plaintiff, made in 1777, were void.
    2. In stating, that under the .circumstances of this case, the surveys of Wallis were not notice.
    S. In stating, that the defendants having the first survey have the best title, if the warrants are descriptive only to a reasonable intent.
    4. The fifth point proposed to the Court, was not answered, qr, if answered,' it was answered wrong.
    
      Marr, for the plaintiff in error.
    
      Hepburn and Greenough, contra.
   Gibson J.

delivered the opinion of the Court.

The construction attempted to be given to the fifth section of the Act of 28th January, 1777, cannot be sustained. The proprietary estate, previous to the revolution, was undoubtedly their absolute property, and subject to their disposition without the control of the popular branch of the government; but the motive for the act lay. deeper than a mere changé of the form of government. To have suffered the Penn family to retain those rights which they held strictly in their proprietary character, would have been inconsistent with the complete political independence of the State. The province was a fief held immediately from the crown, and the revolution would have operated very inefficiently, towards complete emancipation, if the feudal relation had been suffered to remain. It was therefore necessary to extinguish all foreign interest in the soil, as well as foreign jurisdiction in matters of government. But there was an obvious distinction between what the proprietaries had appropriated to themselves as their private estate, and the mass of unappropriated land which they held only as proprietaries. To the first, they had the same title both legal and equitable, which every other member of the community had to his estate, and at the revolution were, as to those lands, as much within the policy of protection under the distribution of the public lands therefore made, as any other individual: to the second they had only the grant in the charter, which depended for its validity on a connection that had been recently severed. Governor John Penn, who was in Philadelphia at the declaration of independence, must have anticipated the events, which have since taken place ; for although the land office was kept open to the December following, little or nothing was done : and after the passing of the Act in question, it was formally closed and the officers ceased to act. This contemporaneous construction, and submission on the part of Mr. Penn, shew clearly what was meant. ■ But it would, independent of this, take much to shew, after the subsequent Acts of Assembly of the 17th March, 1780, and the decision in Hubley v. Chew, 2 Sm. Laws, 258. 2 Yeates, 133, that all proprietary offices not particularly excepted, were not terminated by this Act. The opinion of the Court in Hubley and Chew, upon the very title now in question, although formed at Nisi Prius, is entitled to every respect that a decision can receive from extraordinary abilities in the counsel who argued, and intimate knowledge of the subject matter in the Judges who decided it. Those Judges were contemporary with the transactions under consideration, and had an intimate knowledge of the customs and history of the land office. 1 he surveys then, having been made in April, 1777, by Joseph Wallis, under Charles Lukens, who had been the deputy surveyor under the proprietary government, were unquestionably without authority and could give no right at the time they were made.

Have they been recognised or acquired validity pursuant to any legislative Act? Under the Act of the 17th March, 1780, they might have acquired validity if they had been returned pursuant to its provision; but that is not pretended. They were actually returned however before the Act of the 5th of April, 1782, the fifth section of which, gave the surveyor general a discretionary power, unlimited in point of time, to act on the subject of receiving surveys made by the late deputy surveyors, under circumstances similar to those which existed in the case before us. The returns had been taken to the office before this Act, but under what circumstances we know not: all that is certain is, that the surveyor general never acted on them, or received them under the Act. By what other laws then, can they have been validated ?

The Act of the 9th of April, 1781, which enables the owners of warrants granted before the 10th of December, 1779, (at which period the officers of the land office, under the proprietaries, entirely ceased to act,) to obtain patents on payment of the purchase money, is said to have been in this particular, a substantial alteration of the. provisions of the Act of the 28th of January, 1777. I cannot perceive it. The divesting Act of the 27th of November, 1779, had validated all grants of the late proprietaries before the 4th of July, 1776, and it was thought proper by the Act of 1781, to extend the time to the 10th of December following; but there is not a word said about unauthorised surveys on any of these rights. If a survey had been made by the proprietary deputy, before the 28th of March, 1777, it might, by the Act of the 4th of September, 1793, be returned by him, provided he were in office under the Commonwealth, at any time within nine years previous to the time of making such return; but this last Act clearly related to surveys before the 28th of March, 1777, when the officers under the proprietary government had authority ; for it is expressly stated that the surveyors must have acted under legal appointments. And in all cases where surveys had not been made by the deputies of the proprietaries, while they continued to act under valid appointments, the owner of the warrant or location might, under the fifth section of the Act of the 9th of April, T/81, obtain an order to the surveyor general to have the survey made under the authority of the Commonwealth. All these laws, taken together, form a,system, by which it was provided that proprietary grants previous to the 10th of December, 1776, should be protected'; and that if surveys on such grants had not been made by the proprietary deputy surveyors, while they bad authority to act, they might nevertheless be made by deputy surveyors acting under the authority of the Commonwealth. But even where surveys were made by the proprietary deputies, after the expiration .of their authority, those surveys might have been rendered valid under certain conditions; which have not however been complied with in the case under consideration, and the surveys must therefore be taken to be void.

It is insisted that granting them to be so, they were still notice of a prior appropriation of the land, so as to prevent án appropriation of the same land by subsequent purchasers ; and that the Court should have so directed the jury, But that would have given to them an operation and qualities, that would result only from a valid and binding appropriation of'the land. Of what could they be notice, but that void surveys had been made, which could affect the rights of no one, and which, therefore, could prevent no one from appropriating the ’ land on a subsequent warrant. The returns could be received, under the laws subsequently enacted, only in case no intervening right had attached.; for those surveys were not to be established to the prejudice of subséquent purchasers, who had appropriated the same land under subsequent surveys, which were lawful when they were made. This is not even as strong as the case of a deed improperly registered, which has been held, not to be constructive notice ; for the existence of such deed is a fact which will always affect the party, where actual notice is brought home to him; but here the very fact of which the survey was said to be constructive notice, was immaterial.

It is objected, that the jury were directed that the defendants having the earliest survey, would have the best title, neither of the warrants being precisely descriptive of the land, but each being descriptive to a common intent. The law is clear' beyond dispute, that in such a case the title can attach only by actual survey. It is also objected that the plaintiff having prayed the Court to direct the jury,'that the tenants in possession, having never, designated their- boundaries as im-. provers, nor claimed’ any definite quantity of. land, would, if protected at all by the Statute of Limitations, be so only for “ the quantity actually enclosed and occupied,” the Court left the facts to the jury with a direction that there must be definite boundaries, otherwise the defendants would be confined t0 what they “ actually occupied and this, it is said, was not a direction as favourable as the plaintiff was entitled to have, because it might extend the protection of the Statute to what was not actually enclosed. But actual occupancy means a pedis possessio, which can only be of ground enclosed. The constructive possession supposed to result from defined boundaries had nothing to do with the cause, for there cannot be such thing; but the direction being full as favourable to the plaintiff, as he had desired in his prayer, there is no error of which he can take advantage. The judgment is affirmed.

Judgment affirmed.  