
    Lessee of the Executors of William Thomson v. David Gilliland.
    IN ejectment for land in Pitt township, the plaintiff produced a location, No. 3201, dated 9th May, 1769, in name of Robert Mitchel, for three hundred acres, adjoining John Donne, on the road from the Bullock-Pens, to Braddock’s-Fields; and showed also the location in the name of John Dunn, No. 3115, dated 20th April, 1769, for three hundred acres, at a place commonly called the Bullock-pens, at the Nine-mile run, on general Braddock’s road, adjoining lands claimed by John Frazer, Peter Rolleter, Conrod Winemiller, and William Elliot.
    
    He then proposed to give in evidence a draught of a survey, without specification of date or quantity, but stating the out lines, courses and distances, corner trees, and adjoining claimants, with the following writing on the face of it: “Robert Mitchel, now William Thomson,” and underneath, “Good land, bought of Mr. Joe Spear, at 300l.” and, together with this, the copy of the location, put into the hands of William Thomson, (the deputy surveyor) for surveying, indorsed in Thomson's hand writing, “Robert Mitchel, No. 3201, executed.”
    
      Brackenridge, for the defendant,
    objected to this evidence. 1. Because this draught is in the hand writing of the testator of the plaintiff, made by the person interested, whose act, in his own behalf, has no validity, until recognised by the surveyor general.
    2. Because this paper is not certified to have been a survey made by William Thomson, the deputy surveyor, nor by any one for him, or under his authority or direction; nor indeed ever made. It appears only a diagram.
    
      Woods and Young, for the plantiff.
    1. None but William Thomson could have made the survey. We will prove when it was made; and that it was before William Thomson was interested. Surveyors have always executed surveys of their own land.
    2. It was determined at Nisi prius in Huntington county, that a diagram, made by the surveyor, the field notes of the surveyor, and the tracing of the lines on the ground, and finding them to correspond with those described on the draught, was sufficient evidence of the survey. We will prove, that these lines have been traced on the ground, and correspond. It is immaterial whether the survey was returned or not: It is enough, if we prove, that it was made.
    
      Lessee of Johnson v. Cor. Shippen and Yeates J.
    
   President.

The testimony is admissible, as part evidence of a survey.

Evidence was then given, that in 1769, the witness had a survey to make adjoining this, was told by William Thomson, that he had made this survey for Robert Mitchel, and saw the fresh marks of the title of this survey next his land, and they corresponded with the line on the draught shewn; that the lines round Mitchel’s survey had been lately retraced, that the marks appeared old, and all made at one time, and the lines exactly corresponding with those on the draught shewn; and that they comprehended the greater part of a field of Gilliland’s.

The plaintiff then produced a conveyance, dated 4th April, 1770, from Robert Mitchel of Cumberland county, to William Thomson and Alexander Ross, of the land claimed under the location, acknowledged 6th August, 1770, and recorded 1st September, 1794.

Evidence was then given, that one Winemiller lived on this land, declaring, that he had purchased it from Ross and Thomson, before the war with Britain.

A conveyance, dated 6 October, 1793, from Winemiller to Joseph Spear, for this land, was then produced; and also a conveyance from Spear to William Thomson, dated 1st June, 1781.

The defendant then produced a copy of the same location to Robert Mitchel; a conveyance, dated 9th September, 1772, from Robert Mitchel, corporal in the 18th regiment, to Jacob Bousman, of three hundred acres of land, adjoining a tract of land belonging to

, on the road from Bullock-pens to Braddock’s-field; an assignment, dated 9th October, 1772, by Jacob Bousman to Jacob Miller; and a conveyance, dated 23d February, 1792, from Jacob Miller to David Gilliland. Proof was made of the hand writing of Robert Mitchel, corporal in the 18th regiment, to the conveyance to Bousman; and it was also proved, that the name, Robert Mitchel, signed to the conveyance to Thomson and Ross, was not in the hand writing of Robert Mitchel, corporal in the 18th regiment.

Brackenridge then brought forward a witness, to prove that Robert Mitchel, corporal in the 18th regiment, had declared, that he had taken out the location.

Woods objected, that this would be admitting a man to make a title by his own declaration. If Robert Mitchel were present now, he could not be admitted as a witness; shall then his declarations be admitted?

Brackenridge. Though Mitchel could not new be admitted to prove, that he had then taken out the location, it may now be proved, that he then declared, that he had taken out the location.

President. Surely no man can be admitted to establish a title by his own declarations. But declarations of interest at the time may perhaps be admissible, to shew that this person was the person named in the location. We will admit the testimony; but reserve the point, as such evidence, if proper, is precarious, and not strongly to be relied on.

3 Atk. 96.

A bill of exceptions was proposed; and it was agreed, that it might be drawn up afterwards.

The witness then proved, that after William Thomson brought up the locations, Robert Mitchel, corporal in the 18th regiment, two serjeants, and John Dunn, a clerk to Alexander Ross, all then in the garrison, told him, they had each of them got a location for land in this country, and were going out to have it surveyed. Robert Mitchel said, his location was either for or near the French Bullock-pens, near to William Elliot’s. When Mitchel was going to leave the garrison, there were hot words between him and Ross; and Mitchel told the witness, that Ross wanted to have the location from him, but he damned himself, if he should have it, and said he would convey it to another. Ross had made use of the names of several soldiers, in taking out locations.

The defendant then produced testimony, that, about the year 1772, Jacob Miller came into this country, and bought a tract of land from Jacob Bousman; and some months afterwards, sent out one Bougher to improve on it. Bougher lived on it with his family.—There was also proof, that, when Thomson surveyed the land, there was a cabbin on it raised to the joists; and proof, that Bougher settled within what is now the claim of Gilliland.

A survey, made 22d August, 1790, by the surveyor of the district, on Mitchel’s location, was shewn, containing two hundred and sixty-two 1-quarter acres.

Young. Mitchel was but a trustee, and had but the mere legal or nominal right.

Brackenridge. The presumption is, that Robert Mitchel took out the location, and had the interest in it—The contrary must be proved. Thomson abandoned his survey, never returned it. The law has guarded against secret conveyances? Why not against secret surveys? No use was ever meant to be made of this survey. Shall we bring forward notes found in a desk? Finding no return of a survey, the improver had reason to presume, that the location (which cost but a dollar) with the survey on it, was abandoned; and had good heart to go on, and make further improvements.

Note.—See the case of a bill of exchange payable to a fictitious payee, a person not in existence, &c. 3 T. Rep. 174, 182, 481.—1 H. Bla. 313, 569.

Woods. There was no improvement, at the time of the survey, to defeat the legal title. Mitchel’s declaration is no evidence, that the location was his. It only proves, that, when he heard, there was a location in his name, he was determined to claim the land.

President. If the survey was compleatly made in 1769, as it appears to have been, there was then no Improvement or settlement, that ought to have been regarded, and the title is in the person who has the interest in the location.

The interest was in, the person who procured, and paid for the location.

If Robert Mitchel, corporal in the 18th regiment, was the person who procured the location, and paid for it, the interest was in him. If the location was taken out by another, in the name of Robert Mitchel; Mitchel was but a trustee, without interest.

You will therefore enquire, 1. Whether Robert Mitchel, named in the location, had an interest, or only a bare trust. 2. Whether Robert Mitchel named in the location, was Robert Mitchel, corporal in the 18th regiment. 3. If he was, and was but a trustee, whether his title has come into the hands of Gilliland, bona fide, without notice of the trust, and for an adequate consideration: for if so, Gilliland has the estate clear of the trust. For I cannot see any good reason for distinguishing this from the ordinary case of a trust, or for permitting owners of locations to run no rifle, while in tiling the names of others, they give them an opportunity of imposing on innocent purchasers.

The jury came to the bar, ready to give a verdict; and the plaintiffs suffered a nonsuit.  