
    [Sunbury,
    June 28, 1824.]
    WATSON against GILDAY.
    IN ERROR.
    
      [For former reports of this case, see 2 Serg. & Rawle, 407, and 5 Serg. & Rawle, 267.]
    An application on which a survey has been made and returned, though the proprietor of it does not appear to have pursued his claim by entering upon the land, or occupying it, or paying the purchase money to the state, or otherwise, except by bringing an ejectment in which there was a verdict for the defendant, is a subsisting title in a third person, under which the defendant in an ejectment may protect himself.
    But if both parties claim by improvement, and the plaintiff prove a settlement of boundaries between the defendant and himself by agreement, the defendant cannot set up a title in a third person, to bar the plaintiff’s recovery.
    It is error to leave it to the jury to decide, whether an application, on which a surhas been made and returned, has been abandoned.
    Of the doctrine of abandonment:
    If a person, called to prove what a deceased witness testified, states that he recollects the amount and substance of what the deceased said; that he recollects that there -was a cross examination, but cannot recoiled tohat questions -mere put, he cannot be received as a witness.
    Two bills of exceptions, tendered by the plaintiff in error, the defendant below, one to the admission of evidence, the other to the charge^ of the court, were returned with the record of this ejectment, on a writ of error to the Court of Common Pleas of Lycoming county.
    Both the plaintiff and defendant claimed the land in dispute by settlement and improvement. In the month of September or October, 1797, the plaintiff, William Gilday, went on the land, cleared out a bottom, cut logs, raised a house, moved into it with his family, and continued to i eside there ever since. The improvement under which the defendant claimed, was begun in the year 1796, by Jonathan Bailey, who cleared land, built a cabin, moved upon the place with his family, and raised corn. Bailey after-wards sold his improvement to William M(Kee, who on the 30th of March, -1801, leased it to James Alexander for seven years. Upon the 27th of March, 1804, M‘Kee, by deed, conveyed the land to William and Oliver Watson. It was alleged by the plaintiff, and evidence was given in support of the allegation, that his improvement was begun with the permission of Bailey, both at that time considering the land as appropriated, and that they entered into a parol agreement for the division of the land between them. Whether such an agreement did exist, and whether the land in dispute was situated within the part allotted to Gilday by the agreement, were facts which the court left to the jury.
    the purpose of showing title in a third person, the counsel for the defendant, offered in evidence an application of the 3d of 
      April, 1769, No. 2516, in the name of Jane Little, for 300 acres, on the east side of Lycoming Creels, about one and a half miles from the west branch of the Susquehannah. Upon this application, a survey was made on the 8th of June, 1769. of 255 acres, and 30 perches, by William Scull, the deputy surveyor. The land in dispute was included in this survey, which was returned into the land office. To the admission of this evidence, the counsel for the plaintiff objected, but the court overruled the objection. The counsel for the plaintiffs afterwards offered in evidence the record of an ejectment brought by Esther Coxe and others, executors of John Coxe, deceased, against William Benjamin, James Alexander, and William Gilday, in which the plaintiffs claimed the land in dispute, under the application of Jane Little. The cause was tried in February, 1811, and the defendants had a verdict. An objection was made by the counsel for the defendants to the admission of the evidence, but the court permitted it to be given, upon which, an exception was taken to their opinion. It was proved by Robert MlClure, Esq. that the plaintiffs in that suit failed, in consequence of being unable to show a deed from Jane Little to John Coxe.
    
    
      Charles Reeder, who had been examined on a former trial of this cause, being dead, William Mahoffy was called by the plaintiff, to prove what he then testified, respecting a particular line and corner, made between the plaintiff and MiKee. Mahoffy stated, that he could not say the exact words, but recollected the amount and substance of what he swore. He recollected there was a cross examination, but could not remember what questions were put, but if the parties’ questions were put, it was likely he could recollect some of them. The counsel for the defendant objected to the evidence, but the court admitted it, and sealed a bill of exceptions.
    In their charge, the court instructed the jury, that Jane Little had'a better title to the land in dispute, than either the plaintiff or the defendant, unless from the great length of time she had neglected to pursue her claim, it might be presumed to have been abandoned, or lost by the operation of the statute of limitations, for such parts of the tract as the plaintiff or defendant had adverse possession of, for twenty-one years: That if the title of Jane Little was considered as an existing title, it would bar the recovery of the plaintiff, as he had never been in possession of the land in controversy, and could not claim it by the statute of limitations: That there was no evidence that Jane Little had ever paid the commonwealth for this land, and if the jury believed', that from the neglect to pursue her claim since 1769, by making entry upon the land, occupying it, or paying the purchase money to the state, or in any other way claiming the land, (except by the ejectment brought under her title by the heirs of Coxe, in which the present claimants obtained a verdict,) she had abandoned her claim, the land would then return to the commonwealth, and be open to improvers : and that, if her claim could be considered in this light, it would be necessary for the jury to inquire into the validity of the respective claims of the plaintiff and the defendant.
    The counsel for the defendant excepted to the charge of the court; and the verdict being for the plaintiff, a wx’it of error was purchased.
    On the argument .in this court, Hepburn and Greenough, for the.plaintiff,
    contended, that the Court of Common Pleas had erred in admitting the testimony of William Mahoffy: in support of which they cited, Phill. Ev. 215. 4 Serg. %• Rawle, 205.
    2, That the court erred in leaving it to the jury to decide, whether the title of Jane Little was subsisting or had been abandoned. To this point they cited, Woods v. Galbreath, 2 Yeates, 306. Cox v. Cromwell, 3 Binn. 118. White v. Kyle, 1 Serg. Rawle, 521. Biddle v. Dougal, 5 Binn. 149.
    
      Campbell and Bellas, for the defendant in error,
    refei’red to Cluggage v. Duncan, 1 Serg. 4* Rawle, 119. Lilly v. Paschal’s Executors, 2 Serg. fy Rawle, 398. Phillips v. Shaffer, 5 Serg. fy Rawle, 215. Lowrey v. Gibson, 2 Yeates, 81. Ewing v. Barton, 2 Yeates, 318.
   The opinion of the court was delivered by

Duncan J.

The claims of both parties arise from the same source, settlement on a piece of land of 160 acres, supposed to have remained unappropriated. They depended not on priority of settlement only, but an adjustment of boundaries, and an agreement for consentible lines; a very usual and useful course pursued by original settlérs, and which courts of justice have always countenanced, on this imperfect and inchoate right. It was on the existence and validity of such agreement, the merits of the controversy between these parties depended. The introduction of John Coxe’s claim, under the location and survey returned of Jane Little, was a collateral matter; neither party claimed under it; both declined it; and in ejectment by Coxe’s executors against the Gildqys, many yeax-s ago, there was a verdict for the defendants, since which there have been no further proceedings. It is a general rule in ejectment, £hat the defendant may show an outstanding title in a third person, and and so protect his possession; but.it must be a subsisting one. It subsists wherever the proprietor could sustain an ejectment. And there are exceptions to this rule; landlord and tenant, and other subsisting relations between the plaintiff and the defendant, as trustee and cestui que trust. So, it is a rule, that one having a prior possession, may l’ecover in ejectment. 2 Saund, 112. So, where one comes into possession under a title from B., he cannot gainsay that title against a plaintiff who claims by the same title, by setting up a prior grant in a third person. 10 Johns. 292. So, one who is under a contract for sale, is quasi tenant, and cannot object, that the vended had no title in ejectment against him by the vended’. 18 Jo/ins. 94.There is another principle,that where the plaintiff and defendant deduce their title from the same source, it is not necessary to go further back than that source. I think this title of Coxe should have been left to the jury, with the instruction, that if they found a scrambling occupation, by Watson and Gilday,and that for the sake of peace, they agreed to settle the boundaries, and the boundaries they thus agreed to, were ascertained by proof, then, Watson should not be permitted to set up Coxe’s outstanding title. Their possessory rights, and their controversies inter se, were to be deduced by ajusteomparison of their equitable pretences, and settlement of boundaries, and neither should call in a foreign title to defeat the other. The action itself, is but possessory, and the possession is alleged to be a mixed one, to be regulated by their own agreements. But I by no means agree to the doctrine of abandonment, or leaving it to a jury to presume an abandonment of a location surveyed and returned. Abandonment is a term very often mis-applied, and I know nothing more destructive pf the security of titles, than leaving it to a jury to presume an abandonment of such a title. Abandonment does not apply to such a case. A man may abandon his settlement, and that abandonment may be of such a cast, as that the court may decide it as a matter of law, independentof thestatutary provisionsof limtation, as to seven years; because continuity of actual residence and- possession, is the very vital principle of this right, and is a part of its legal definition. Hence it is determined, that settlements must not have the smallest cast of abandonment. The abandonment then, is not constructive, but absolute; a dereliction of the possession, which amounts to a surrender of the pre-emption right, unless this dereliction is accounted for by some extraordinary occurrence ,as being dispossessed by force, and an immediate prosecution of the right, or prosecution within some reasonable time, or being driven off by the public enemy. Where a location is not followed up by a survey in a reasonable time, this is constructive abandonment, and may be decided as matter of law by the court; and where there is an intervening i'ight before a survey, this imperfect right, and inception of title, may be considered as relinquished, or in other words, abandoned.

So, under particular circumstances, where a survey has been made andnotreturned, and no surveying fees paid; no act done by the owner; no money paid on the location, this might likewise be considered as an abandonment. This doctrine was essential to a new country, which, in the case of these imperfect rights, required an active pursuit, and this the law required. Where, after the presumed abandonment other rights have been fixed, this might be consided constructive abandonment, but where the survey was duly made, certainly where duly made and returned, this principle would not apply ; no one could be deceived, the land could not be considered as vacant and unoccupied, and any neglect in perfecting the titlej was a matter solely between the proprietaries, (since the state) and the holder of the warrant or application, with which, persons who are not aggrieved had nothing to do. The state has extended the time of payment by law, and has passed laws for the recovery of the purchase money of land so held bv location and survey. A location with a survey returned, is as to*all the world but the state, in Pennsylvania, the legal title, with all the incidents of the legal title, and all the right and benefit- flowing from it. A man does not forfeit his title, where he has committed. no actual fraud against the tenant, either by not bringing suit, or resting after one verdict against him, if the delay was for a- less time than that prescribed by the act of limitations. To say that he would, is to set up a limitation contrary to the law. Delay is not fraud; it may be negligence, which the law permits, if not protracted beyond a prescribed period of twenty-one years. I do not see any other ground for presuming a fraud, than what arises from the delay in instituting the action, and there was no fraud in that. These principles governed in Wood’s Lessee v. Galbreath, 2 Yeates, 306, and in Cox v. Cromwell, 3 Binn. 114; and again, in White and another v. Kyle’s Lessee 1 Serg. & Rawle, 517, where two trials, verdicts and judgments in ejectment, and seventeen years acquiescence, were held not to be a bar. Such an acquiescence might be a bar where there was actual fraud committed by a party: as by encouraging a defendant to improve, by holding out to him a determination not to prosecute his claim'farther, or encouraging a stranger to buy. But mere delay could not’postpone; it must be some particular act of fraud, or fraudulent connivance. But the position of the court, that if the jury believe, that Jane Little neglected to pursue her claim from 1769, by making entry upon the land, occupying it, or paying the state for it, or in any other way claiming the land, as here (except the ejectment, which was brought years past, by the heirs of John Coxe, who claimed under Jane Little', and were defeated by the present claimants,) she has abandoned her claim, and the land would then return to the commonwealth, and be open to improvers,” has no foundation in law, and is in my view, pregnant with most mischievous consequences, removing the land marks of property. This is seating up a new limitation, contrary to positive law; and where the contracting parties, the state, and the applicant, have come to terms, with respect to payment; where the credit has been extended by acts of the legislature, and where in giving the extension, they had added.their own terms, by charging interest on interest after a certain period, to say, that not- . withstanding all this, the land reverted back to the state, where the state, has dispensed with the conditions of payment as to time, and still will grant the patent, and take a mortgage, payable by instalments for the security, would be a violation of the public faith, and contrary to their own positive enactments. What is it to Giiday or Watson, whether Jane Little has paid her purchase money to the state or not ? It was a matter between the state and her,which the state has regulated by law,and on the non-payment, and non-settlement of the land, it does not become derelict, open to the first man who chooses to take possession of it. There was error in this part of the charge, for if the jury did not believe, that the plaintiff had made out his case, as to this amicable adjustment between him and the defendant, by this agreement respecting the lines, the defendant could show this subsisting title in Jane Little.

There was likewise error in admitting Mahoffy’s evidence, as to the testimony given by Reeder on a former trial; for though it be true, that if a witness, examined on a former trial between the same parties, and where the same point is in issue on a second trial or action, be since dead, what he swore on that former trial may be proved, by any one who heard him, yet this is evidence from necessity. The law of England is very strict, and requires that the person called upon to prove what a deceased witness said, should undertake to repeat precisely his very words, and not merely to swear to their effect. We have relaxed that strictness,' and admitted a witness who would undertake to give evidence of the substance; but in that, there must be no equivocation or ambiguity. The reason why such evidence is admitted at all, is because the parties to the suit are the same, the point in issue the same, and an opportunity was given for cross examination. If there was a cross examination, the witness should be prepared to state what that was, for the cross examination might have explained what he swore to, on the direct examination. He cannot recollect the questions that were put in the cross examination: he recollects there was a cross examination, but what it was, he has no recollection of.- This was but a partial account of what the first witness swore, and is a dangerous kind of evidence, on which no indictment for perjury would lie. The whole that was given in evidence on the point in issue to which he was examined, in the words of the deceased witness, or its whole substance, without garbling, the witness from his recollection must state, or he cannot be heard.

Judgment reversed, and a venire facias de novo awarded.  