
    Diggs and another against Downing.
    Wednesday, September 9.
    In Error.
    After a wararam-y made and marked upon the ground,he has ed'his rights" as to the land to be appropriated, and pennission^o7 locate his can never he allowed lo the prejudice of third persons. warrantce,ea alter havmg made a survey on the ground tive warrant] protract the lines of the survey on pameiúdeland ■which was not the lines Se'kroimd°n his title to the «fnh/reiates" only to the returnofsurvey, because it is founded on a new contract, to which the assent of the Cdfomonwealth is not given until that time; and ifa title be previously acquired under the Commonwealth by one who had no notice of the protraction of the lines of the first survey, it will not be affected by it.
    A survey thus protracted and remaining in the hands of the deputy surveyor, is no notice that the protraction on paper is different from the lines marked upon the ground. Recitals ot mesne conveyances in a patent of an earlier date than the return of a survey which has been protracted on paper, are evidence to shew, tlyit the interest of the warrantee is* vested in- the patentee.
    FROM the bill of exceptions which was returned with the record of this ejectment from the Court of Common p]eas Df Indiana countv, it appeared, that the plaintiff below, . ■ , the defendant in error, claimed the land m question under a patent to William Browne and James Harris, dated Septemfoer 21st, 1789, which recited a warrant to one Houston, and . , . , , , mesne conveyances from him through several persons to the patentees. The title of Browne and Harris was regularly conveyed by deed, bearing date August 12th, 1795, to the plaintiff,
    The defendants, who admitted that they were in possess'on of the land within the lines described by the patent, founded their title on a warrant, dated ^fulu 23d, 1773, to J J . . Adam Holliday, for 300 acres of land on a run emptying into Clearfield creek, including the upper beaver dam, and his improvement in the county of Bedford. On this warrant a 1 r J ^ survey was made of 306 acres 129 perches by Thomas Smith, escl- deputy surveyor, who was paid his fees on the ground, and who, on the 17th September, 1773, signed a receipt for his tees for making and returning the survey; hut the survey was not returned until a long time afterwards, for reasons which will be hereafter stated. A patent issued to Holliday on Uth March, 1796, and it was admitted, that his interest was regularly vested in the defendants.
    agent of Holliday, and assisted in carrying the chain, that he ° . ,, ,- • - , was instructed by his principal to take in the land in question on account of the timber, and that after they had run some # 7 J distance on the second or third course, excluding the land in It was proved by a witness who directed the survey as the controversy, he directed Mr. Smith to go back and continue the first course, with a view to take it in. Mr. Smith declined doing so, but said he would run down until he came opposite to the line of the first course, which he Would extend and take the land in as well in that way as if the line were run upon the ground, and would plot it in and make return of it. He had his protracting instruments with him, and the witness saw him make out his field notes that night, according to the manner in which he had stated he would make the survey. The warrant was in Mr. Smith’s hands at the time the survey was made, and was located according to the description contained in it. In the spring of 1773, Holliday had a cabin raised, and apple trees planted on the tract, and there were when the witness saw it, about five or six years before the trial, twenty or thirty acres cleared, on that part of it which was occupied by Diggs, one of the defendants. Ten or fifteen acres were cleared on another part of the tract, and snug houses built upon it. More than twenty years prior to the trial Holliday sent for his patent, and finding that the survey was not returned, he called upon Judge Smith, (formerly the deputy surveyor,), to inquire why it had been delayed. The reason given was, that the fees had not been paid. On the production of his receipt, Judge Smith directed Col. Cannon to make the return, and the return was made on the 6th April, 1796. Whether the improvements on that part of the land which lay within the interference were made by the plaintiff or the defendants, did not appear.
    In delivering his charge to the jury, Judge Young declared, that notwithstanding the specialty of Holliday’s warrant, if no survey had been made in pursuance of it, until after the date of the plaintiff’s patent, the warrant would be of no avail. In regard to surveys made but not returned, through the fault of the deputy surveyor, he stated the rule to be, that the owner of the warrant was not to be prejudiced except in cases of shifted warrants ; but that this, like every other general rule, was not to be taken absolutely. He inclined to the opinion, that a purchaser for a full consideration of patented land, without notice of a prior survey which ■had not been returned, ought to be protected against the negligence of the officer. But if the law were not clear on this point, he was of opinion, that the rule could not be extended to land not embraced by the lines of the survey at the time of making it on the ground. The actual lines on the ground constituted the survey. These lines might, without doubt, be extended by protraction, without actual measurement, but unless a return of the survey so protracted had been made before the land excluded by the original survey were appropriated by another, the general rule already stated, did not apply. The protraction beyond the original lines, without a return of the whole into the surveyor general’s office, could not operate as notice to others. In that case, express notice to the party, claiming under a later warrant and survey, would be requisite, and such notice would be still more necessary to affect a purchaser under a patent. If, he concluded, the principle laid down be correct, it was not incumbent on the plaintiff to shew the mesne conveyances from Houston, the warrantee to him, the recitals in the patent being sufficient evidence of them.
    To this opinion, the counsel for the defendants excepted, and the questions arising out of it were argued in this Court, by Kelly, for the plaintiffs in error, and Smith, for the defendant in error.
   The opinion of the Court was delivered by

Gibson J.

It is a general rule, that the owner of a warrant shall not be prejudiced by the neglect of the deputy surveyor in not returning the survey; but it is subject to exceptions. A survey made on a shifted location or warrant vests no interest in the land, before it is in fact returned into office; for a purchaser, without notice of the prior survey, appropriating the same land, will hold it, notwithstanding the return was delayed by the negligence of the officer. The chief reason of the difference between a survey on an indescriptive and on a shifted location or warrant, seems to be this: in the case of the former, the marks on the ground will put a party on inquiry, in prosecuting which he will find nothing to give rise to a belief, that the survey on the ground was not made on the indescriptive warrant or without authority; and therefore the interest shall attach from the date of the survey. But in the case of a shifted right, all inquiry will prove fruitless before the return of survey, as it would terminate without discovering any office right, that could by any possibility be applied to the land, it being impossible in such a case to connect the description in the warrant with the survey on the ground; a settler or purchaser might, therefore, reasonably conclude such survey was made without authority. In the latter case, to prevent surprise on third persons, it behoves the owner to get his survey returned as soon as possible, for an adverse survey made before the return, and without actual notice of the prior survey, will prevail. These principles have some bearing on the case before us. The defendants below claimed under a descriptive warrant, on which a survey was made the 13th September, 1773, the lines pf which as actually run and marked on the ground, exclude the land in dispute, but at the same time the survey was made, or immediately afterwards, it was included by protraction of the lines on paper. Mr. Smith, the deputy surveyor, was paid his fees at the same time, but the survey was not returned before the 6th April, 1796. The plaintiff claims under a patent dated the 21st September, 1789, without notice having been brought home to him of the extension of the defendant’s lines by protraction. Can his title, accruing before the return of defendant’s survey, be affected by an alteration made on paper, of which he could not be apprised ? If Holliday, the warrantee, was dissatisfied with the lines run, he had a right to require the surveyor to go again on the ground, and by actually running and marking new lines, and obliterating the old ones departed from, to correct whatever had been done amiss. This having been omitted, the land excluded by the lines on the ground remained open to other purchasers without notice, who might appropriate it at any time before the return of survey. But it is contended, this survey while in the hands of the deputy surveyor was notice. I can see no reason for that; because the survey appearing from the marks on the grounds to have been complete, and to have excluded the land in dispute, there was nothing to create a suspicion, that the protraction on paper was different, or that could serve to. put a subsequent purchaser on inquiry.

It is further objected, that the Court instructed the jury, that the recitals in the plaintiff’s patent of certain intermediate conveyances from Houston, the original warrantee, to the patentee, were evidence of those conveyances. The abstract rule on the subject is clearly laid down in Bonnet v. Devebaugh, and the other cases in Binney's Reports. A deed reciting a fact is evidence of such fact against the grant* or and all claiming under him, by' a transfer of his interest subsequently7 made. In Penrose v. Griffiths, the reason of the rule is rightly given by the Chief Justice; a recital amounts to a confession of the grantor, and therefore affects him and all who claim under him, and stand in his stead. The question then is, whether the defendants derive their title, such as it is, from the date of their warrant or from the return of their survey. I apprehend they can claim by title, as to the land in dispute, only from the return of survey. A grant by the state of a portion of her land, then not measured off from the common stock, must necessarily be uncertain as to the identity of the very land granted, unless it be described by natural boundaries as in case of an island. A description in a warrant may designate the spot where the location is to be made ; still, however, a survey is necessary to define specifically, the exclusive boundaries of the object of the contract. The grantee has the right of directing the application of the warrant to suit himself, and having thus designated his boundary, the object of the grant is as definitely ascertained as if its boundaries had been originally fixed by the terms of the contract, and the interest vests from the date. When a warrantee has bounded his pretensions by lines run and marked, he has fully exercised his right as to the land to be appropriated; and having done so, the state might with strict justice hold him to his choice; for the customary permission to locate his grant over again before return of survey was at first a matter of indulgence, not of right; and is still never allowed where third persons are concerned. Now Holliday, the warrantee, executed the contract with the state in making a survey which excluded this land; and it then ceased to be the subject of contract between him and the state if it had been so before. If then the defendants derive title from the state, it must be on the ground of a new contract, different from that which was executed by the warrantee, and which must relate to the return of survey, because the assent of the Commonwealth is not given before that time. But if a warrantee has, under the custom of the land office, a right to re-locate his grant, independent of the assent of the Commonwealth, he can only do so where he does not interfere with intervening rights ; and here was an intervening right attaching itself to the land at a time when it might well d© •so. No right can vest under Holliday’s warrant, without ex-eluding Houston’s survey. The appropriation of the land in question, by protraction, could have no validity till ratified by the state; while the land remained her property and subject to her disposal, that ratification might be made on what terms she pleased, and the point of time at which the title should commence would be a matter between her and the grantee. Put I deny, that the state, having granted this land to Houston, at a time when she was the absolute owner of it, could-by any after act vest, even colour of title in a third person, to commence for any purpose or in any point of view prior to such grant. The original contract between Houston and the state, looked to an appropriation by a survey in the usual manner ,• but it was not executed by the grantee ; for no such appropriation of the land in dispute was ever made." ■ The acceptance of an appropriation of a different sort by a protraction on paper, was a new contract, which co.uld not have a retrospective operation against a prior grantee. I therefore think the defendants derive no title under Holliday’s warrant, for that warrant was never executed on the land in dispute ; but their title from the state, such as it is, (and even a patent could give but colour of title,) must take date from the return of their survey. This 'being the case, and the patent under which the plaintiffs claim being earlier than the return, its recitals were evidence to shew, that the interest of Houston was vested in the patentees.

■ A defendant cannot use the recitals in a plaintiff’s patent, to shew an outstanding title in a third person ; for those recitals being in the nature of a confession must, if they are used at all, be all taken together.' The defendant will not be permitted to select such parts as operate in his favour, and reject the rest. If he will shew title in a third person by the recitals of a patent, he makes all the recitals it contains < evidence as well against him as for him j he can only avoid their operation by not having recourse to them, but producing the original title papers of such outstanding title. I am of opinion, the judgment ought to be affirmed.

Judgment affirmed.  