
    WESTMORELAND COUNTY.
    September Term, 1796.
    Lessee of John Galbraith v. John M'Gaw.
    THIS was an ejectment for 300 acres of land, on Campbell's run, Donegal township.
    The plaintiff shewed a location No. 3048, dated 13th April, 1769, in the name of Michael Coffman, for three hundred acres on the south branch of the Four Mile run, bounded, on the south, by the claim of Philemon Askins; on the east, by the claim of Thomas Pitton; and, on the north, by the claim of Thomas Campbell.
    
    He then shewed an order, by John Boyd, (a deputy surveyor under William Thomson, surveyor of the district) on Michael Coffman, for 3l. 5s. remainder of surveying fees.
    
    Woods, for the plaintiff,
    then suggesting, that the first survey, made by John Boyd, had not been returned, shewed a draught and certificate of a survey of three hundred acres and the allowance, made nth February, 1795, by Benjamin Lodge, then surveyor of the district, in pursuance of an application, No. 3048, dated 13th April, 1769, with a note annexed, that this survey is subject to a claim of John M'Gaw, on a late warrant, but the lines of it appear to have been run twenty odd years ago.
    He then shewed a conveyance of this location and land from Michael Coffman to William Campbell, dated 11th June, 1790, reciting a previous conveyance, dated 8th April, 1775, and (because it did not recite the location) confirming that conveyance. He also shewed a conveyance by James Guthrie, sheriff of Wetsmoreland county, to William Parks, reciting a judgment against Thomas Campbell and Michael Coffman, of October term, 1773, a fieri facias tested of that term, a levy on a tract of land “on which defendant lives, with a small improvement subject to incumbrances ;” and a judgment against William Campbell, 6th October, 1791, a fieri facias, 23d March, 1792, a levy of “three hundred acres of land, more or less, joining lands of John M'Gaw, Nicholas Wilson, and others; venditioni exponas, on both judgments, and sale, 14th September, 1792, of that tract of land of three hundred acres, more or less, joining John M'Gaw, Nicholas Wilson, and others, to William Parks, to whom the conveyance thereupon is. And he shewed a conveyance of the same land by William Parks, to John Galbraith, dated 18th February, 1794, and reciting the sheriff’s deed.
    The assistant who made the survey under Benjamin Lodge, on 11th February, 1795, proved, that he found old lines round this survey, exceptas to part, where he threw out land, as the old lines contained more than the lines of this survey; that he threw out part of that which John M'Gaw claims, and a greater part at the opposite end of the survey; and that John M'Gaw has land out of this survey, besides what he claims within it.
    
      Brackenridge, for the defendant,
    produced a warrant to John M'Gaw, dated 29th December, 1785, for two hundred acres including an improvement, joining lands of James Campbell on the north east, William Campbell, and Nicholas Wilson, interest commencing from March, 1779; and a survey of two hundred and twenty-five acres and twenty-two perches, made on this warrant, 27th June, 1786.
    Evidence, was then given, that, in 1769, there was a deadening on Coffman’s land; that, in 1770, his house was raised; that, in the fall of, 1769 or 1770, John Boyd made Coffman’s survey, conducted by Thomas Campbell, who said he had taken in the cream of the land; that one of the lines made by Boyd is now M'Gaw’s line, is near a spring, which it leaves out of Coffman’s survey, and is near where Coffman’s house was afterwards built, and goes through a field; and that Coffman shewed this as his line, in 1772, to one who proposed to buy from him, and gave as a reason why it went through the field, that he was absent, when the field was cleared, and the grubber went over the line; and said it was Thomas Campbell’s doings to build she house so near the line.
    Evidence was also given, that, in February, 1771, John Overun settled where John M'Gaw now lives, built a cabbin, cleared two or three acres and put it in corn, and lived there till April, 1772. His brotherin-law took possession of it under him, and lived there till Overun sold it, in 1773, to John Livingston, who, the same year, sold it to Hugh Larimer, who, on 13th August, 1780, assigned his conveyance of it to John M'Gaw. There had been a conveyance from Overun to Livingston, and it was given to M'Gaw, but was since lost. The conveyance from Livingston to Lorimer was dated 9th November, 1773, and stated a purchase and bill of sale from Overun of 6th March, 1773. Larimer settled on the land the spring of 1774, and lived there, except when driven off by the Indians. In 1786 or 1787, one Rankin an assistant surveyor came to make a survey for Thomas Campbell, on Coffman’s location, began at Boyd’s corner, and went round till he came to M‘Gaw’s line, but would not cross it; and Campbell directed him to enlarge the survey towards Philemon Askin’s claim. Evidence was also given, that, in 1772, Coffman and Overun agreed, that the line between them should be two rods beyond the spring, so that Coffman should have it: another witness said, that Coffman was to have a way to the spring.
    There was also shewn by the defendant, a written agreement, under seal, by Michael Coffman and Thomas Campbell, dated 8th April, 1775, to sell to William Campbell, a tract of land for which he was to take out a warrant. This, the defendant’s counsel suggested was the deed referred to by the conveyance from Coffman to Campbell, dated 11th June, 1790. And one witness swore that Coffman said, his located lay over between the disputed land and the Four-mile run.
    
      Michael Coffman was called, and swore, that, in 1768, he employed a man to make an improvement for him; that he cut a clapboard tree, raised two logs high of a cabbin; that he went out next spring, hired two men, and worked on the land, settled there near the spring, applied for a location, claimed the land in dispute, cleared on it, and made no lines with Overun; that Boyd did run the line between his house and the spring, but told him he had not his compliment, and he would come back, and make other lines; that he never came back, but he understood one Hamilton came, after he had sold the land to William Campbell; that he intended to hold down to the branch of the run; and that Thomas Campbell never had any interest in the location.
    
      Brackenridge, for the defendant,
    then produced copy of a record of an ejectment to April term, 1774, for this land, by the lessee of John Livingston against Thomas Campbell; which stated that, at January term, 1775, this dispute was referred, by consent of the parties, to five arbitrators, who, 19th February, 1776, awarded that Thomas Campbell had no right to the land, and that he pay costs.
    Woods, for the plaintiff,
    objected to this on two grounds. 1. Because no agreement of Thomas Campbell subsequent to 8th April, 1775, could be admitted; for if he ever had any right, he, together with Michael Coffman, had, by deed of that date, conveyed this land to William Campbell, and afterwards could not affect it by any act of his.—2. Because the judgment against Thomas Campbell, and the levy of this land on it was prior to the reference or the ejectment.
    
      Brackenridge. No subsequent act of Thomas Campbell could deprive us of the benefit of any agreement made while he had an interest. He was tenant in possession; was bound to warrant; and therefore his act is the act of his assignee.
   President.

The act of Thomas Campbell cannot affect Coffman, nor William Campbell, after the sale to him. A submission is revocable before the award or hearing.

Brackenridge then offered a decision of the Board of Property on a caveat entered by William Campbell against John M'Gaw, dismissing the caveat because a record in ejectment had been produced.

Woods. The court having already rejected the ground of this decision, the decision itself cannot be received.

President. As a decision between the parties in this suit, on the subject now in dispute, it may be given in evidence. Its operation is another thing.

Brackenridge contended for the line run by Boyd, or, at any rate, the agreed line, as the boundary between the parties.

Woods argued, that the line run by Boyd was but a line of experiment and never intended to be final, and that the agreed line was incredible.

President. The arbitration or reference and award or report, with the judgment on it, must be laid out of the question, as not binding the present parties. If so, as the decision of the Board of Property states this as its foundation, it cannot, with propriety, be allowed to influence this question.

The location intitled Coffman to three hundred acres, but he might limit himself, if he pleased to one hundred. He did limit himself by Boyd's line, which, if acquiesced in, was decisive. He might indeed have called on the public authority to change it; and it would have been changed, if no intermediate legal or equitable claim were affected by the alteration. But, if an intermediate right interfered, the alteration could not affect it.

The only clear evidence of the interference of public authority, to alter the limitation of Coffman's claim, is the survey made by Benjamin Lodge, 11th February, 1795. That indeed refers to old lines. How, or when, or why, the old lines were made, it does not appear.

The questions then are, Were those old lines made by authority, were they such as would have been a limitation of Coffman's claim, or were they voluntary and not binding him? If they were voluntary and not binding him, were they an alteration of Boyd’s authoritative survey? If they were authoritative, did any intermediate legal or equitable right intervene?

Before 11th February, 1795, a legal right, M'Gaw’s warrant and survey, intervened; and no act done by Galbraith then, could affect the title acquired by M'Gaw before.

The agreed line rests on the credibility of the witnesses; and the truth must be ascertained by you.

The jury found a verdict for the defendant.  