
    [Chambersburg,
    October 25, 1824.]
    M‘DOWELL against YOUNG.
    IN ERROR.
    An application, calling for an improvement, is descriptive to a common intent; and if due diligence be used in obtaining a survey, the title, attaches from its date, and not from the return of survey; unless some subsequent act of the holder, such as suffering another to take possession and lnaips improvements without notice of survey, postpones him.
    It is the duty of the deputy surveyor to return his surveys; arid if he neglects this duty, the holder of an application is not to be injured by it.
    The holder of a surreptitious warrant for four hundred acres, on which a survey of eight hundred acres has been made, but not returned, cannot hold the land against an application founded on a settlement, where the applicant had a survey made of a smaller quantity than his application called for by a deputy surveyor, then interested in the surreptitious warrant, if, as soon as he discovers the fraud, he applies for an order of resurvey, and that order is executed, though not returned.
    . Time does not begin to run against the holder of such an application, where there been no bona fide purchaser, until he has had notice of the fraud.
    The holder of such surreptitious warrant, whose alienee and descendants hold more than the four hundred acres, cannot be considered in the light of a person claiming under a settlement right, and therefore protected on the ground of a settlement made without notice of resurvey, or before such resurvey is returned.
    On the trial of this ejectment, in the Court of Common Pleas of Bedford county, it appeared that the foundation of the claim of the plaintiff below, Andrew M‘Doioell, to the land in controversy, was an improvement, made by John Palmer in 1763, which he sold to John Moore, by whom it was transferred to Robert McPherson, whose title was vested in the plaintiff. On the 1st of August, 1766, a location issued in the name of Robert M‘Pher-son, for three hundred acres, “ including an improvement made by John Palmer in 1762.” On this location a survey was made by Richard Tea, on the 14th of March, 1769, of one hundred and fifty-two and a-half acres; and endorsed upon the draft, was a memorandum, that a copy of it had been sent to Robert M‘Pher-son. Another copy of this location, which was found in the office of the deputy surveyor of Bedford county, was given in evidence, on which was indorsed an order in the following words, “ A survey has been made in virtue of this order, but not completed as to quantity; you are to make such additions thereto, returning it all in one draft, as will complete the quantity, provided there do not appear prior rights for the same.” This order, which was in the hand-writing of George Woods, the former deputy surveyor, and without date, was directed to Thomas Smith, esq. deputy surveyor, and signed by order of the surveyor general, John Lu-7eens. In pursuance of this order, an additional survey was made by Mr. Smith, which included the land in dispute, a draft of which, in his handwriting, dated 18th of August, 1775, was produced. In the year 1814, a resurvey, embracing the original survey by Tea, and the additional survey by Smith, was made by 
      James Piper, and that gentleman, who was examined as a witness on the part of the plaintiff, swore, that when he made the survey for the plaintiff, a plot and order of survey were put into his hands, from which he ran round the lines, and found them all, except one. He, at the same time, ran the lines of Smith’s survey, and his impression was, that it had been made in 1777; but, from the survey, he found that it was in 1775. He found the lines, of which there were five new ones, well marked round the resurvey, where there was timber. He blocked some of the lines, and thought they counted to 1777, but the3r might have been made in 1775. Pie stated, that McDowell requested him not to return the survey, until he should hear from him. It was returned, on the 2d of April, 1S21, after the commencement of this suit.
    
      Samuel Piddle, testified, that in 1775, on his way from Hunt-ingdon court, he saw some of the tenants of this land in company with James Piddle, who had married a daughter of Robert M‘Pher-son. In 1804, the witness went with Wilson, a surveyor of Hunt-ingdon county, and ran the lines both of the original survey, and of the resurvey, which appeared to correspond in date with the times they were said to have been made. Robert M‘Pherson, he stated, died in 1788. He lived in that part of York county which is now Adams county. Pie was a man of business, and had been sheriff of the county. James Riddle married one of his daughters, and MiDowell another.
    A lease for the land in dispute, bearing date the 1st of April, 1796, from James Riddle to William Cooke, and another lease from James Riddle to Abraham Riblet, dated the 27th of April, 1799, were given in evidence; and it was proved, by John Piper, that Riblet was in possession when he took the lease; but, whether he was in under Nixon, (under whom the defendant claimed,) or not, he could not tell. The house in which Riblet lived, had been a school house, and Nixon’s children had gone to school there.
    The title upon which the defendant rested his claim, commenced with a warrant, not signed by the governor, in favour of George Nixon, dated October 29th, 1762, for four hundred acres, including two springs at the foot of Cove Mountain, adjoining John Piper on the north; on which a survey was made by Richard Tea, on the 5th of June, 1765, of eight hundred and fourteen acres and three quarters. This survey was enumerated in a list of the returns of Richard Tea’s surveys, dated the 7th of March, 1767. A patent issued for apart, of this land, which George Nixon, on the 19th of January, 1801, conveyed to Thomas Nixon.
    
    It was proved by John Ritchie, who lived at George Woods, in Bedford, that in the year 1772 Thomas Smith came there, and inquired, where he .should begin to make the survey, and was referred to Mr. Piper for information, to whom he went; that, when he returned, Woods told him, that he had run upon Nixon’s land; to which he replied, he. could not help it; he ran where Piper told him: That, in 1775, Nixon began to build where he afterwards lived, and the witness saw no ground cleared before that time; he did not see Palmer’s impiovement: That before Nixon went to the land to live, the Indian war broke out, and the inhabitants were obliged to flee: That he could not tell when Nixon returned; but, after his return, he resided there till his death. He further stated, that in the year 1814, Abraham Riblet built an addition to the first cabin, a small barn, and a still house, which was burnt, and had twenty or twenty-five acres cleared within the lines of the resurvey.
    
      William Piper testified, that he knew the lines of these surveys: That he did not know when Nixon began his improvement, but he went to reside on the land in the spring of 1784, after the termination of the war; but his family did not return until the fall: That the land was claimed by Nixon: That the school house was built in 1787 or 1788; he helped to raise it, and his children went to school there: That the lines of Nixon’s survey were marked on the ground; and that the witness, when he was a boy, saw the improvement made by Palmer, which was then grown up with pines.
    
      Abraham Bowlman swore, that when he first saw Palmer’s improvement, in 1788, it was grown up with saplings, and had been deserted some years.
    
      Palmer, it was said, lived on the land until he was carried off by the Indians; but, at what time this took place, did not appear. It was proved, however, by one Livingston, that in the year 1787 his improvement was grown up, his fences gone, his, cabin burnt, and that large saplings had grown up in what had been the field. Another witness stated, that the families which had been driven off by the Indians, generally returned to their settlements in 1782. The improvement continued vacant until 17.04 or 1795, when one Gunn cleared it out, and resided on it five or six years.
    A lease to Henry Riblet, son of Abraham Riblet, dated the 2d of September, 1815, was produced, and it was proved that Abraham Riblet’s family lived on the land until his death, when they moved off, and no person was on it for some time.
    By will, dated January 27th, 1806, George Nixon devised this land to his daughter.
    To rebut the evidence adduced by the defendant, the plaintiff produced the certificate of the receiver general, dated December, 13th, 1S07, that no moneyhad been paid on George Nixon’s warrant. He also produced a deed, bearing date the 2d of March, 1764, from George Nixon to George Woods, and a deed, dated the 19 th of March, 1764, from George Woods to Richard Tea and John Little He likewise proved, by the testimony of Samuel Riddle, that he had repeatedly searched the books of the land office, with the officers, to ascertain whether the purchase money, or any part of it, had been paid, on three warrants, in the name of George Nixon the elder, and others: That he was there five days, in the preceding February: That the five shillings usually paid on taking out a warrant in the secretary’s office, had not been paid: That, from the year 1755, it was usual in the secretary’s office to enter in the warrant blotter, the money received: That Richard Tea was a clerk in the land office, from the year 1755, until about the year 1763: That, from seeing his handwriting-in the office, and the information of others, he believed that Richard Tea was in the office at the time of issuing the warrant; and that be found no instance of a warrant issuing without the payment of money, except by the special order of the governor.
    Baikd, President, delivered to the jury the following charge, which, from the nature of the case, and the opinion having been excepted to, generally, by both parties, it becomes necessary to publish entire:
    
      “ The foundation of the plaintiff’s claim, is an improvement made by John Palmer, in the year 1762. The transfer of this equitable inception of title to J. Moore, and from him to Robert M‘Pherson, the father of Mrs. M‘Z)owell, is proved by the deposition of John Moore. It seems to be admitted by the defendant’s counsel, that such an improvement was made by Palmer, and that he had, in consequence, the earliest and best right to appropriate to his use three hundred acres, in such convenient form around his cabin as he might select. But the inceptive title, which he thus had, might be altogether lost by abandonment, or limited to a less, quantity by a survey. It is said, that Palmer continued to live upon the land, until he was carried off by the Indians. At this period, the violence of savage warfare rendered it necessary for our early frontier settlers to take refuge in a denser population, and, during the time of trouble, the indulgence of the law protected their rights from forfeiture. But, as soon as they could with safety resume their settlements, they were bound to do so, or their claim would be considered as relinquished to the next more enterprising and industrious individual, who would take them up. We are not informed, by the testimony, at what time Palmer, was removed from the soil; but it is proved by Mr. Livingston, that in 1787, his improvement was grown up, the fences gone, his cabin burnt, and that there were saplings as large as his thigh, where the field had been. Mr. Piper says, it was in that situation as long before as he can remember. He states, also, that the families which had been driven off by the Indians, returned generally in 1782 to their settlements. It is farther proved, that this improvement continued vacant, until 1794 or 1795, when one Gunn cleared it out, and lived there five or six years. From this testimony, if the plaintiff’s claim rested wholly on this alleged improvement, perhaps you would have little difficulty in determining, that the equity was abandoned, by leaving the ground for so long a time after the public necessity ceased to exist. But, he relies, also, upon an application in favour of Robert McPherson, dated the 1st of August, 1766, for three hundred aeres, &e. If this was taken out before the improvement was abandoned, during the period in which the rights of improvers were protected, it would so fix the title, that it would not be lost by non-residence, and would hold the allowed quantity, to be af-terwards in a i’easonable time, and in a convenient manner, designated by a survey, including the settlement. But, even if the improvement had been relinquished, prior to the application, still it would hold the land, if precisely descriptive, from its date, provided there was no intervening claim, and due diligence was used subsequently; if it was only generally descriptive, it would fix the right from the time of survey. You will say, whether, on the 1st of August, 1766, the date of the application, the improvement made by Palmer was subsisting or protected. If it was, and the application of M‘Pherson, who was the transferee of his equity, precisely described the land, (which it seems to do by a reference to the settlement,) the right would be so determined, that it could not be lost by merely leaving the possession vacant, and would hold according to survey, reasonably made as to time and manner, against any subsequent claimant. The only question, then, would be, Whether the plaintiff must not be confined to the limits of the survey, made on the 14th of March, 1762, by Richard Tea? This contains one hundred fifty-two and a half acres, embracing Palmer’s old improvement, and including the land in dispute. An improver may certainly give up part of his claim, by leaving it out when he comes to designate his boundaries. Every survey will be presumed to have been made with the knowledge and consent of the owner, and will conclude him, unless he seeks redress in a convenient time. It will be upon him to show, that he did not assent, or that there was fraud or mistake in the officer. The evidence of circumstances may be sufficient. It is said, that in the present instance there was fraud in Richard Tea. Whether there was, or not, we leave with you; but, admitting that there was, the owner ought to have sought relief without delay. It is endorsed on the original draft, that a copy was sent to MiPherson. If, then, he knew that the survey had so limited his quantity, why did he not complain ? Why did he acquiesce, until the ISth of August, 1775, at which time Mr. Smith made a resurvey, under an order without date, taking in the disputed ground. Even this resurvey was not returned — and, in 1814, Mr. Piper retraced the lines, but retained the draft, by direction of Doctor McDowell, until 1821; when it was transmitted to the office, and was the first notice to government and the public, that additional ground was taken into McPherson’s claim. Whether the plaintiff has accounted for this delay, so as to remove the imputation of laches, or negligence, we leave for your decision. If he has not, the legal consequences may be prejudicial to his claim, without involving the defendant’s title at all; for if M‘Pherson had relinquished the improvement, and intended to rely on his applica-
      
      ¿ion, he was hound to pursue it with suitable diligence, or it would be unavailing. Jlfter a reasonable time allowed, if the holder of an application neglects to fix it on the ground by a survey, or some description of boundary, any other person may acquire a right, which will for ever preclude him. Has McPherson, or those claiming under him, used due diligence in asserting a claim to the land in dispute, by an official designa,tion? Between two and three years elapsed, between the date of the application and the first survey by Tea; but this has not been urged as laches, and, so far, the title is not questioned. Jls to the ground for which suit is brought, no survey was ever made prior to 1775, nor returned until 1821. If we consider, therefore, the plaintiff’s claim as resting upon the application merely, / cannot think he acquired any right beyond the quantity contained in the first survey. He liad, by a public notorious act, declared the extent of his claim. He had acquiesced in Tea’s survey for several years, without any complaint, as far as we know; and even after he had obtained an order of resurvey, and had it executed, it was never returned, nor any public intimation of it given, until a short time ago. It would be unreasonable to suppose, that the land around his former survey should be kept vacant, to enable him at any period to fill up his alleged deficiency. An application, as well as an improvement, may be totally abandoned; and if the plaintiff’s claim rests alone upon that inception of title, and it has not been followed up with proper diligence, it gives no right. But, it is urged, that if the settlement was not relinquished, the plaintiff may rely on it, notwithstanding his application is forfeited. Perhaps he might — but, in the present ease, can there be any doubt, that the improvement was intended to be abandoned, when the office title was pursued ? There is no evidence, that any person lived upon it, from the time that Palmer left it, until Gunn came there in 1794 or 1795. But it is said, that M‘Pherson was not bound by the survey made by Tea, because he was mistaken or deceived. If he was, he might have been relieved against the error or fraud in the officer, by applying in a reasonable time; but, if he has failed to do so, as I have before said, or if an intervening claim in the mean time accrued, there can be no redress. Was there, then, such a right attached to the land in dispute ? This leads to the consideration of the defendant’s title. He has shown a warrant to George Nixon, dated the 29th of October, 1762, for four hundred acres, including the two springs at the foot of Cove Mountain, adjoining John Piper on the north; a survey, also, made on the 5th of June, 1765, by Richard Tea, containing eight hundred and fourteen acres and three quarters, oh the waters of Yellow Creek, &c. which was returned on the 7th of March, 1767. This embraces the land in dispute, and if nothing appeared to disturb this title, the case would perhaps present little difficulty; for, admitting the prior improvement to be subsisting at the time, yet Nixon might lawfully lay his warrant upon any laud in the neighbourhood, not conflicting with Palmer’s claim, if marked with lines or other known boundaries ; or if there were none, leaving a sufficient scope for him to fill his quantity from. Now, it does not appear, that Tea in locating Nixon’s warrant, touched Palmer’s improvement, or interfered with his known designation of claim. We have no evidence of complaint or dissatisfaction, and for years afterwards, when MlPherson had his first survey made, it seems that Nixon’s lines were regarded. But the plaintiff’s counsel say, 1st. That Nixon’s warrant being unsigned by the governor, and no money paid on it, would give no right;, and, 2d. That the whole transaction was fraudulent, &c. On the first point, we have great difficulty; but feel constrained to yield to the authority of Gripe v. Baird, 4 Yeates, 215, which is exactly analogous, and, so far as the printed authorities have been adverted to, not directly impugned. Were vve-at liberty to decide upon our owe notion of public policy and justice, or according to our view of the usage and practice of the land office, in similar cases, we do not say what our opinion might be; but when there is an express adjudication on the very point, by the highest tribunal in the state, we are bound by it. The defendant, therefore, can derive no right tinder the warrant to George Nixon, which appears not to have been signed by the governor, and upon tohich no money has been paid. With respect to the fraudulent, surreptitious manner, in which it is alleged this warrant was obtained, with several others from the land office, you have heard a great deal. It is suggested, that they were procured by Richard Tea, who was then a clerk in the office of the secretary, and was afterwards a deputy surveyor of this district. We leave the facts to your consideration. It appears, that George Nixon did not come to this country, until long after the date of the warrant in his name. He was the brother-in-law of George Woods, to whom, it is alleged, he conveyed this land by deed, dated the 2d of March, 1764. J2 question has been made, with respect to the genuineness of this conveyance, of which you will judge. Woods sold to Richard Tea and John Little, this and sundry other warrants, which appear to be all in similar circumstances of suspicion. They were not signed by the governor, and no money was paid on them. They were not entered in the surveyor general’s office, nor is any order of survey marked upon them. They were executed by Richard Tea, who was, as the plaintiff contends, interested in the location. These circumstances have been urged, to show the invalidity of this warrant, and fraud in those concerned. If it was surreptitiously obtained from the office, and surveyed without authority, no right could attach under it. But it is said, that the survey of Nixon has been since recognized by the land office. The evidence, on that point, is, that the warrant, although returned there, has not been filed with the regular papers, but remains, with some others* enveloped in a newspaper. ' A patent has, however, been granted to Thomas Nixon for a part of the tract, reciting the warrant and survey. For that quantity, a separate return had been made, and the money paid. As it respects the rights and interests of the government only, perhaps the land officers might have authority to validate the transaction, and confirm a title, upon receipt of the money; but they could not give a retrospective virtue to a void or fraudulent proceeding, so as to affect the vested rights of other persons. Whether there really was any fraud, we leave entirely to your examination. But, if the defendant can claim no right under .his warrant and survey, he contends still, that he may hold under an improvement, commenced in 1775 or 1776. No doubt, he might so hold, if no prior right existed. It is proved, that George Nixon built a cabin near the land now in dispute, but before it was fit to dwell in, he was forced to fly from the Indians. As soon, however, as the war was over, he returned, and remained there until his death. The possession has been continued ever since, and is now held in right of his daughter, to whom he devised it in his will. If this settlement was made before M(Pherson’s resurvey was executed or returned, or before Nixon had notice of it, he would be entitled to hold an improvement pre-emption, by a convenient designation around his cabin. But, if he has already the disputed ground, he cannot hold eight hundred acres by a settlement. I do not think the excess of quantity ought to vitiate; for, although it was contrary to the proprietaries’ rules on the subject, yet it was the practice of the land office to receive such, — up, at all events, to thelSth of April, or the 1st of May, 1767/ perhaps, in many instances, afterwards.”
    
    
      Thompson, for the plaintiff in error,
    contended, 1st, That in charging the jury that a location reasonably descriptive of the land, did not give title from its date, but that, to do so, it must be precisely descriptive, the court below erred. It has been repeatedly decided, that if a warrant be descriptive to a reasonable extent, and followed by a survey within a reasonable time, or accompanied by possession, with marked boundaries, the title commences with the date of the warrant. Graham v. Moore, 4 Berg. & Rawle, 467. Lilly v. Paschal, 2 Serg\ & Rawle, 394. Lau-mcin v. Thomas, 4 Binn. 51. The language of the presiding judge must have led the jury to suppose, that the plaintiff’s title did not commence until a survey was made.
    2. The court likewise erred, in saying, that if Tea Surveyed only one hundred and fifty acres, on a location for three hundred acres, M‘Phcrson was bound, unless he applied for redress without delay. He was entitled to a reasonable time, and, in the absence of any intervening right, he might fill up his survey to three hundred acres, at any time time before it was returned. As a de-fence against Tea, he might at any time set up the fraud of Tea; and Nixon and Tea were identified with each other. Woods 
      was the assistant of Tea, the deputy surveyor, and the owner of Nixon’s warrant, when he made the survey of M‘Pherson’s location, giving him only one hundred and fifty, instead of three hundred acres.
    3. There was error in stating, that the return of survey was the first notice to the government and to the public, that a survey had been made.
    4. To say, that if MiPherson did not prosecute his claim with due diligence, it would be unavailing, and he would have no title, was also erroneous. Though M‘Pherson did not use due diligence, Nixon could not hold the land against him on a void warrant.
    
    5. In saying, that the plaintiff could not be relieved against the fraud of Tea in this case, was, in fact, a decision of the cause, and took every thing from the jury; which was error.
    6. The opinion, that a survey of eight hundred' and fourteen acres might be made on a warrant for four hundred acres, was, as this ease stood, erroneous. If the survey had been returned and accepted, the law might be so, but not otherwise.
    7. In charging the jury, that in this case, the defendant could hold the land by improvement, after he had, by virtue of the same improvement, taken up and held four hundred acres more, the court below erred.
    
      MlCulloch, for the defendant in error,
    observed, that no request was made to the judge to charge on any particular point; but after the charge had been delivered, both parties excepted to it. It ought not, therefore, to be severely criticised by this court; but the whole should be candidly considered, without carping at particular expressions. There has been great laches in the plaintiff, and those under whom, he claims. The survey made by Thomas Smith did not pursue the order he received. Instead of returning all in one draft, he made a separate survey of an additional part, and this survey was never returned until the year 1S21, after the lines had been retraced in 1S14, by the deputy surveyor, who kept back the return, at the request of the plaintiff. — The errors assigned, he contended, were not to be found in the charge. With respect to the first exception, he said, that if the whole charge be taken together, the language of the judge was, that the plaintiff’s application gave title to his improvement, and the quantity of land around it to which a settler is entitled, provided it was prosecuted with due diligence; and this is, without doubt, the law. It must be followed by survey or possession. In all the cases cited, the law is so laid down.
    2. The language objected to in the second specification of error, was a single observation, for which, even if erroneous, this court will not reverse the judgment. If the whole charge be examined, it will be found, that the court made many observations, and left it to the jury to decide, whether M‘Pherson had not been guilty of unreasonable laches. He cited, 2 Sm. L. 255. 3 Serg. & Ttawle, 349, 350. 5 Serg. & Razóle, 187. 3 Yeates, 401.
    3. The opinion of the court, as set,forth in the third error assigned, was palpably true, and requires no argument to support it.
    4. If what follows that part of the charge in which error has been assigned, be taken in connexion with it, the meaning of the court will appear to be, that the plaintiff*s claim, if not prosecuted with due diligence, would be unavailing against a third person, who had acquired a right. Consequently, there was no error in the instruction given to the jury.
    5. The language imputed to the court, in the fifth specification of error, is not to be found in the charge. It is expressly said, that MlPherson might have been relieved against the alleged fraud, if he applied in a reasonable time.
    6. The instruction, that a survey of eight hundred acres might be made on Nixon’s warrant for four hundred acres, was of no importance, because the judge charged that this wairant was void, in consequence of its not having been signed by the governor. What was said, was an abstract proposition, that if the warrant were valid, the survey would not be bad, because it included eight hundred acres; and that is the law.
    7. The court did not say, what is supposed by the seventh exception to the charge. A settler has a right to four hundred acres round his improvement. If he has sold four hundred acres, at a distance from his house, to which he has no good title, that would not deprive him of his right to four hundred acres, including and adjoining his house. The judge said, that Nixon could only hold as much land as a settler was entitled to, and left it to the jury to decide whether he held other land by virtue of his improvement. The truth was, he sold four hundred acres, which he held by virtue of his warrant and the survey for eight hundred and fourteen acres; and this could not affect his title, by improvement, to the land in controversy.
   The opinion of the court was delivered by

Duncan, J.

It is important to keep in view, that we have not, in this case, any bona fide purchaser of the original title, under the warrant of George Nixon; that it is held by a mere volunteer, claiming as the devisee of George Nixon, and that under the "warrant of four hundred acres, exclusive of Smith’s addition to M‘Pherson’s survey of one hundred and twenty-seven acres, there is now held by the Nixon family, or purchasers from him, under this fotfr hundred acre warrant, six hundred and eighty-seven acres. If this had heed a valid warrant, according to the usage of the land, office at that time, the survey of eight hundred and fourteen acres would have held the surplus, provided it did not interfere, when it was made, with the intervening rights of others. But, when this survey was made, John Palmer had made a settlement, in the year 1760 or 1762, and conveyed the settlement right to J. Moore, who conveyed to Robert M‘Pherson, under whom the plaintiff claims, and who, on the 1st of August, 1766, the day on which the office opened on the new plan, by application, instead of warrant, entered his application, and obtained an order of survey for three hundred acres, including an improvement made by John Palmer, in 1762 or 1760. Now, if there was nothing more in the case than this, no room would be left to doubt, but that MiPher-son would have an unquestioned right to a reasonable survey of three hundred acres, in preference to Nixon’s warrant, even had it been valid, if his settlement was before the warrant; so that, if M‘Pherson-has lost his preference, it must be, because it has been forfeited by his own act's — laches and negligence. The warrant to George Nixon exhibits a very extraordinary aspect, and the court decided, “that no title was derived by Nixon under this warrant, because it was not signed by the governor, and because no purchase money nor fees had been paid;” and another reason might be added, that the warrant never was regularly, or irregularly, in the surveyor general’s office, until July, 1765; as appears by the entry endorsed on the warrant, brought into the surveyor general’s office, July, 1765.” So that, when the survey was made, it was made without authority or direction; and, though then brought into the office, it was not received and regularly filed in that office, but found enclosed — with other suspicious and irregular papers — in an old newspaper. Prima facie, the warrant was invalid; but this matter might have been explained. The holder of the warrant might have shown some particular reason for departure from the general rule; some special order of the proprietries; some previous, irregular authority; or, some subsequent ratification by acceptance, which would take effect from that subsequent act. But this was not shown; for, although the deputy is charged with the fees in the surveyor general’s books, and the surveyor endorsed it, this is entered in Richard Tea’s list of returns, made to the office of the surveyor general, of the 7th of March, 1767; but the old newspaper wrapper, containing them is endorsed, — “G. W. and Captain Little; no fees paid; received July, 1765.” So that the evidence is conclusive, that the warrant and survey were never in the surveyor general’s office, until July, 1765; and then not received and filed as regular office papers. There is something further extraordinary in this transaction: George Nixon is the brother-in-law of G. Woods, and, when the warrant was taken out, was not in America; and George Woods, on the 2d of March, 1764, claimed the land under a conveyance from George Nixon. The survey, whatever it was, was made for Richard Tea and Captain Little, who was the brother-in-law of George Woods. On the 19th of March, G. Woods conveyed it to R. Tea and John Little, the seventeenth day after the date of the conveyance from George Nixon to him. When the survey was made, it was made by R. Tea, the claimant of Cr, Nixon’s title, for himself. It was in evidence, that in 1764, when the warrant issued, R. Tea was a clerk in the land office. When the location of MlPherson was put in the hands of R. Tea, then deputy surveyor, we know not; but, in 1769, a survey, as appears from a draft in the handwriting, with the calculation of Richard Tea, found in the surveyor’s office, was made for MiPher-son, on his application, of only one hundred and* fifty-two acres; On the order of survey, directed to R. Tea, there is endorsed, in. his handwriting, “ Executed by G. W., 14th of March, 1769.” Mr. Woods sometimes made surveys for R. Tea. It does not appear, that any further act was done by either party, until 1775, when the late Judge Smith, by the special direction of the surveyor general, made the addition, including the land in dispute. This order is without date, but the survey was made in April, 1775. Nixon began to build in 1775. He cleared no ground. He left it, and did not return until 1782. After Indian hostilities ceased, in 1794, a lease was given by M‘Pherson’s heirs, to one Riblet, who had a school house on the land, built by the neigh-bours, where Nixon's children went to school, Nixon then claiming the land. In 1814, Riblet had added to the first cabin, a small barn or still house, and cleared twenty or twenty-five acres of land in 1815. After Abraham Riblet’s death, his son Henry took a lease. Smith’s addition was not returned, until after the ejectment brought. On this statement of facts, granting, as the court did, that the warrant and survey of Nixon were void, and putting it to the jury, as was done in the charge, on the settlement of Nixon commenced in 1775, whether before or after the resurvey of Smith, was there error in the charge of the court? There can be no question made, but that MlPherson might, if he so chose, by his application, have taken a less quantity than three hundred acres; but if the land was of equal quality, as he had bought in Palmer’s settlement right, and took out an application for three hundred acres to fill that right, the first presumption is, that he intended to take in three hundred acres. I find the law no where laid down with more clearness, than in the charge of Judge Smith, in Davis’s Lessee v. Keefer, 4 Rinn. 163. He says, “ I agree, that every settler is entitled to three hundred acres, if there be so much unappropriated land connected to his settlement; but he may take less, and, if he does take a warrant for less than his settlement entitled him to, and has it fairly and duly surveyed, and without any fraud, deception, or misrepresentation, by an adverse warrantee, he is bound to that quantity; and he cannot, after another person has obtained a warrant for the adjoining land, take out a subsequent warrant for it. This is the settled rule of law, and it is necessary to adhere to it.” So, if one takes out a warrant for a full settlement right, but does not fill it, and he chooses not to fill it, and has his survey fairly made and returned, he cannot, at any time afterwards, not barred by the act of limitations, if a third person had taken out a right, or settled on the part left out, by a new survey, oust such such person. Now, in 1769, was there any thing to prevent Tea, except his own invalid survey, on Nixon’s invalid warrant, made for himself, from filling the location of M‘Pherson ? If he was the agent of MlPherson, to make his survey, and he was his agent for the particular purpose of laying the location according to its description, and, at the same time, had an adverse interest not to fill it, and omitted to fill it for that reason, then he deceived M‘Pherson; and, as Nixon claimed under that deceptive act of Tea, and had the benefit of it, and as McPherson might believe that his survey had been duly made, and make no further inquiry, my opinion is, that the original taint is not cured by the length of time elapsed, between the survey of 1769, and the order of 1775, to complete it. Wbat has great weight with me, is, that no innocent purchasers have been induced to purchase Nixon’s right. Now, without descending into the minutise of the charge, or cavilling at particular expressions, I do consider the manner in which it was finally left to the jury was erroneous, tending to mislead them; for, in conclusion, the judge directed the jury, “that if G. Nixon built a cabin in 1775 or 1776, he had a right to hold, if no prior right existed; that he returned after the war, and remained there until his death; that his daughter, to whom he devised it by his will, still continued to hold it, and that, if this settlement was made before M‘Pherson’s resurvey was executed or returned, or before Nixon had notice of it, he would be entitled to hold a pre-emption right, by a convenient designation; but if he had clearly fixed this claim on other lands, he could not come on this disputed ground; he could not hold eight hundred acres by a settlement.” The error lies here at the root of this position; in considering Nixon as entering simply as an actual settler, settling on vacant land, and claiming under a settlement right. That was not his situation; he entered not as a settler claiming to hold three hundred acres under his settlement right, but as a warrant holder, claiming under a warrant and survey of eight hundred acres, and so he continued to hold until the day of his death. He sold to Stone one hundred acres, which was patented on the warrant; he conveyed to his son. Thomas, one hundred and fifty-nine acres, on the 19th of January, 1801, who patented it on this right; he devised to his son John two hundred and thirty-six acres, and to his daughter, Young, the like quantity, on the 37th of January, 1806. When he makes his will, he devises the whole as one tract of land; the homestead place to his wife, during life; and, at his decease, to be divided between his daughter, Rebecca Young, and his son John; and John now holds two hundred and thirty-six acres, the half, under that will. Now, in the face of all these facts, it is impossible to give him the character of a settler. The effect of this would be, to enable him to hold eight hundred acres; to reap the benefit of a fraudulent and void warrant and survey, and then, to serve another purpose, assume a new character, that of a settler on part of the eight hundred acre sui’vey, as vacant land. It cannot work both ways, nor be used as a two-edged instrument, to keep out all around. When Smith made the resurvey or addition for M‘Pherson, his direction was, to complete it as to quantity, provided there did not appear prior rights to the same. Now, if Nixon’s warrant and survey were fraudulent and void, the addition interfered with no prior right; and it is worthy of remembrance, that if the eight hundred acre survey was void, then Smith left land in abundance to fill Nixon’s settlement right, and even to fill his warrant, if the warrant was valid; and, if he had no other than a settlement right, he and his family can have no just cause of complaint for this error; more than twice the quantity, double settlement rights; and, if the settlement was after Nixon’s warrant, it .was before his survey, and the quantity of eight hundred acres could not be included in it, if it trenched on the tract which Palmer’s settlement right entitled him to. And, if the improvement right of Nixon commenced before the resurvey or addition, in 1775, then there was ample scope left for Nixon, under his settlement right; thus admitting, that the character of a settler belongs to him, and not that of a warrant holder.

I think, likewise, there was error in leaving it to the jury to decide, whether McPherson had applied in a reasonable time to have his survey completed. If there was fraud in Tea, in making a survey, including lands naturally falling to M‘Pherson, under the settlement right called for in his application, then nothing short of the limitation law, where the perpetrators of the fraud were to reap the benefit, would conclude him. Here there is, as I stated in the outset, no intervening right — no purchasers for a valuable consideration. The controversy is with those who enjoyed the benefit of the fraud, and for whose use it was committed; and, as was observed by the Chief Justice, in Davis v. Keefer, before referred to, in a similar controversy, the defendant cannot complain. of having suffered any injustice by the neglect; for they were not innocent purchasers. And the court, further says, — If there -was fraud in Tea, the owner ought to have sought relief without delay. There was no evidence of notice given to MiPherson of the fraud. When it was discovered, we know not. Even under the limitation law, the time would not begin to run,.until the fraud was discovered. No length of time will bar a fraud, where the interest remains in the person who committed it, or for whose use it was committed, short, at least, of some positive statutory provision. Talbot, 68. Sac. Tracts, 37. In equity, certainly, until the fraud is discovered, the statute does not begin to run; and the reason is, that the conscience of the party being affected, he ought not to be allowed to avail himself of the length of time, where the party, by his own fraud, has precluded the other party from coming to a knowledge of his rights. Troup v. Smith, 20 Johns. 47. In equity, the limitation does not run, except from the time fraud is discovered. Here, I consider the act of Tea, in making the survey on the Nixon warrant, while he claimed the right to it, and the survey of M‘Pherson, not completing it, as the act of Níxoji. The fraud was committed'' in Nixon’s name, and for his benefit. There was no evidence of notice to MlPher-son. He would naturally conclude the surveyor had done his duty, completed his survey, or that there subsisted some previous right.

It does not, as the court instructed the jury, lie on the plaintiff to prove that McPherson did not assent. It would be incumbent on the person alleging his assent, to prove that he had notice of the act, and all the circumstances, and with that notice assented by his acquiescence. There was not a scintilla of evidence, that M‘Pherson had notice of this incomplete survey. If he had, and acquiesced in it, it is probable he would haye called on Tea to return it; and though the original draft was evidence to show the act done on the ground, yet the memorandum of Tea, that a copy had been sent to M‘Pherson, was no evidence to prove notice. It was a private memorandum, and not an official act. He could not make evidence for himself. I think, likewise, that too much stress was laid, on the delay in not returning the survey completed by Smith. This, in the contemplation of law, was a precise application. It did not, to be sure, amount to a survey; but calling for Palmer’s improvement, it described it with all reasonable certainty. It could not be laid on other land with propriety, and that is all the certainty that the law required. To make it a descriptive location, it is not required that it should be with all certainty. Davis’s Lessee v. Keefer, 4 Binn. 163. And, in Lauman v. Thomas, 4 Binn. 58, it was said by the Chief Justice, warrants descriptive of the land to be surveyed, are either precisely so, or with such reasonable certainty as is sufficient to designate it; and if due diligence is used in obtaining such survey, the title attaches from the date, and not from the return. This is the first class. The second is, where it fixes no precise spot, but allows a scope of several miles. The title does not attach until the survey is made. The third, are shifted wax-rants or locations, where title attaches fi-om the return of the survey, unless where a party has notice. And in the second class, — of loose warrants or applications, — which was the case befox-e the court, he observes, that the application was to ■be considered complete from the time of the survey, unless something improper afterwards took place on the part of the holder, as suffering a mau to settle and improve without notice of the survey, or permitting it to be surveyed for a third person; for,’ as he most justly says, the survey was made by the officer of the proprietary, whose duty it was to return it to the surveyor general’s officer, for so he was commanded by the warrant. 4 If he neglected his duty, the purchaser is not to be injured by it. And this certainly is the law here with regard to loose locations; but how much stronger is it,' where the location is descriptive, with common reasonable certainty. All these rules, with respect to return of surveys, admit of exception, where there has been improper conduct on the part of the warrantee, affecting the owner of a subsequent right. Whatever doubts might be entertained, by some, of the principle as applied to lobse locations, where the location, as in this case, was descriptive, I never heard it questioned; for, as was further said in that case, if the warrantee has done every thing in his power, by putting his descriptive warrant into the hands of the surveyor, and procuring a survey to be made, great mischief would follow, if he might be cut out of his land, by the dishonesty of the surveyor in not making the return. Here no such imputation is intended to be cast on the memory of the most respectable gentleman, who made the addition on the order of 1775, (if, indeed, that order had not issued earlier.) Fewer controversies have arisen on surveys made by that most excellent man and fine officer, than have occurred in the case of any other deputy surveyor. But the war intervened; the fact of the additional survey was notorious; it was made by the direction of Captain Piper, who lived on the adjoining tract, to whom Mr. Woods referred Judge Smith, to show him the spot. I do not think it necessary to consider the exceptions further in detail. But, to prevent misapprehension, I do not understand the judge to have charged the jury, that an application precisely descriptive did not give title, but from' the time of the return. Taking the whole charge together, and construing it as , one whole, I do not think that was the meaning of the court. If it was, it would be far from being correct as a general proposition, though, in particular cases, the neglect of return might amount to evidence of abandonment, where the omission was the act of the warrantee, and operating injuriously to the right of others, who had, with the knowledge of the warrantee, made valuable improvements without notice; for .these rules, simple in their origin, and very general in their terms, must from their very nature, be subject to exceptions. The only-argument against the rule, is, where these persons are affected by the improper act of the warrantee himself, not by the neglect of the surveyor.

I am therefore, for this reason of opinion, taking into consideration all the circumstances of this very uncommon case, that the view taken of it by the court was erroneous, and would tend to mislead the jury, by taking the new ground, of Nixon being a settler in 1775, whose claim included the land in question, under his settlement right; whereas the proof was ineontrovertable, that G. Nixo7i entered, claiming eight hundred acres on his warrant, sold ■parts of it as his warranted land, settled the residue on his wife, and children, as his warranted and surveyed land, lived on it as his surveyed land and died on it as his warranted and surveyed land; one undivided a tract of eight hundred acres, held by warrant and survey; and, on the trial of this cause, they put the warrant and survey in the very front of the battle, as their shield and defence. The heirs of George Nixon could not now patent it, and pay the purchase money, as on a mere settlement right, by abandoning the warrant and survey, if there was not an adverse claim, and would be bound to patent it on the old right, and pay the price and interest from 1762, and not interest from 1775; for this would be a fraud on the state.

Judgment reversed, and a venire facias de novo awarded.  