
    Lessee of Joshua Clark against George Hackethorn.
    A settlement right may be affected by the conduct of the widow of the settler.
    An agreement by a widow in 1786, that a person securing to the family one half of the land improved, by a legal title, shall have the other, may be valid in certain cases.
    The 5th section of the limitation act of March 26, 1785, is binding on infants.
    A purchaser for valuable consideration without notice of a trust, is not subject to it.
    EjectmeNT for 159 acres and 92 perches of land, in Hanover township, brought to November term 1799.
    The facts on the trial appeared as follows : Masterton Clark settled on the lands in question in 1775, built a cabin 16 feet by 14, cleared 11 or 12 acres that year, planted corn in the spring, and sowed wheat in the fall. Next year he cleared 7 or 8 acres more, and planted corn therein ; he lived on the land two years with his wife and children, and was driven off by the Indians in 1777, went to Redstone, and died in 1783. Previous to his death, by his will dated 5th July 1783, he devised to his wife Mary the profits of his lands, until his eldest son (the lessor of the plaintiff) should come of age, and then his said son to have two thirds thereof in fee, and his said wife to have the remaining one third during her life. The land lay waste till 1789.
    On the 15th February 1786, the widow entered into an agreement with James Marshall, esq. then sheriff of the county, that he should take out an office right for the lands, and procure the same to be surveyed and patented, convey one moiety thereof to her son Joshua in fee, and retain the other moiety for himself. It appeared that Marshall entered into this contract with the widow at her express request, and by the advice and approbation of her brother George Blazier, and that he intended thereby to secure a plantation for the family, and merely to indemnify himself. He relinquished his interest in the lands to Samuel Smith, after procuring a warrant, which was conveyed to Smith, subject to the above agreement. Smith obtained a patent for the land, containing 404 acres and 32 perches, on the 16th April 1788, and the legal title to the lands in question became vested in the defendant under four different mesne conveyances, and the residue of the lands, containing 245 acres and 100 perches, were conveyed to the widow, in trust for the uses in the will.
    * » 1 *The lessor of the plaintiff was eight years old when '°i his father died. His mother afterwards intermarried with Mark Duke, and they came into possession of the lands conveyed to her in 1789, but had no possession of the 159 acres and 92 perches.
    After the cause had been argued very fully by Messrs. Pentecost and Simonson on the part of the plaintiff, and by Mr. Ross for the defendant, the court informed the - jury in their charge, that four different questions might come before them for decision on the evidence.
    1 st. Has there been an abandonment of the settlement right ? The leanings of the court were strongly in favour of actual settlers. The law of the 30th December 1786, was declaratory of the ancient law and usage on this subject. But though bona fide improvements would receive every protection if duly pursued, they might be lost by delay and neglect. A widow, even with infant children, might do acts amounting to a dereliction; by gross negligence she might bar their pretensions to a settlement claim. The state of the country was well known. In 1777, the inhabitants fled from the savages; in 1782, there was no real danger from the Indians ; but the public fears had not subsided until 1783; all apprehensions of danger then ceased; but this original settlement was not continued until 1789, and here is a laches of six years.
    2. Was the widow’s contract with Marshall invalid ? In 1786, courts of justice did not regard settlements in the favourable light in which they are now viewed; they were often in jeopardy. It was no more than prudent to secure part of the land by a legal title; the widow had no resources to effect this, except by such an agreement. She consults her brother, and he advises the measure. Marshall meant only to serve her, and gains nothing by it. Suppose a decision of the Supreme Court in 1786, in favour of an office right against the present settlement claim, and a person had purchased the paper title in consequence of such decision, and confiding therein, could he now be dispossessed ? Are not the two cases the same in principle ?
    Referred to as obsolete in part in i P. & W. 453.
    3d. Duke and his wife, in the year 1789, took possession of the old improvement, but not of the tract now in dispute; consequently, as the plaintiff claims under an improvement, and he cannot ascertain a possession within seven years previous to the commencement of this ejectment to November term 1799, he is barred from recovery by the express words of the limitation act of 26th March 1785, § 5. (2 Dall. St. Laws 282.) It has been determined, that this law is binding on infants in Mobley’s et al. lessee v. Ecker, in Huntingdon county, at the last spring circuit, *on full consideration, where the two former points also [*271 underwent discussion.
    4th. On another ground we think the plaintiff must fail. He must recover, if at all, against the defendant as his trustee; but if Marshall and Smith were in the first instance trustees for the lessor of the plaintiff, the several subsequent purchasers for valuable consideration, without notice of the trust, are not subjected to it. 2 Com. Dig. 231. 5 Com. Dig. 584. 1 Co. 122, b. 5 Bac. 342, 387. Talb. Cas. 187, 258, 260. 1 Wms. 128. The trust could not descend on the defendant without notice; and there was no adverse possession which would amount to constructive notice. 2 Bla. Com. 337. 2 Fonbla. 170.
   The jury gave a verdict for the defendant without leaving the bar.  