
    [Philadelphia,
    April 14th, 1836.]
    The UNION CANAL CO. against YOUNG and Others.
    In 1792, an act of the legislature was passed, to incorporate a company for opening a canal between the rivers Delaware and Schuylkill, which authorised the corporation to purchase, take, and hold all such real estate as should be necessary for them in the prosecution of their works': in pursuance of which they proceeded to lay out the canal, part of which passed through the land of A., who was a stockholder in the Company. In 1793 a parol agreement was made between the Company and A. for the price of that part of his land taken for the canal; which agreement was' recognized by a hill or memorandum in writing made by A. in 1798. About the year 1793,,the canal was actually dug" through the land of A.; but the communication between the two rivers was never completed ; and after the year 1795, nothing further was done in opening the Communication by this Company; but the strip remained within the fences of A. and with the remainder of his land, was at one time let to a tenant for years, who used part of it, with the other ground, for the purpose of raising grain. In 1811 an act was passed, authorising a junction of the Delaware and Schuylkill Canal Co. with the Schuylkill and Susquehanna Navigation Co. under the name of the Union Canal Co., by virtue of which all the estates, rights and .privileges of the two companies were vested in the new corporation. In 1819 another act of the legislature required the Union Canal Co. to confine their operations to the completion of the communication between the Schuylkill and tire Susquehanna. In 1821 A. accepted certificates for 10 shares of stock of the Union Canal Co., in lieu of his stock in the old Delaware and Schuylkill Canal Co. In June, 1833ypartof the land of A., which being in the immediate vicinity of Philadelphia, had, in the mean time, greatly appreciated in value, was sold for building lots to B. and C. who gave mortgages for the purchase money. In an ejectment instituted to N Dec. term, 1833, by the Union Canal Co. against the heirs of A., and the purchasers under them, it was AeZd, (1st.) That the plaintiffs acquired a right to the soil, occupied or taken for the canal, and not merely an easement therein. (2d.) That the possession of A. was not to be considered as adverse to the plaintiffs, so as to give effect to the statute of limitations. (3d.) That the abandonment of the canal, and the dissolution of the old company in 1811, did not raise any equity, which would avail the defendants as a defence, or authorise them to treat the contract as rescinded (4th.) That supposing B. and C. to be purchasers without notice, they w’ere not entitled to protection further than as they had actually pard the purchase money r the mortgages not being considered as payment. '
    
    This was an action of ejectment, brought by The Union Canal Company of Pennsylvania,'against William W. Young, John M'AUister, Junr. Joseph Fox and Philip M. Price, to recover a piece of land containing 135 perches, formerly of William Young, deceased.
    The action was tried at a Court of Nisi Prius, held by Mr. Justice Rogers, on the 1st of March, 1836, when, by consent of parties, a verdict was taken for the plaintiffs, subject to- the opinion of the Court upon the whole case.
    On the 29th of September, 1791, an act of the. legislature of Pennsylvania was passed to incorporate a company; for opening á canal and lock navigation between the rivers Schuylkill and Susquehanna; by the second section of which, the company were authorised to purchase, take and hold, in fee simple or for any lesser estate, all such lands, tenements and hereditaments, as should be necessary for them in the prosecution of their works. - -
    On the 10th of April, 1792, an act was passed to incorporate á company, for opening a canal and water communication between the rivers Delaware and Schuylkill; the 2d section of which authorised this company to purchase, take and hold real estate in like manner. The 8th section declared, that it should be lawful for the President and Managers of this Company “ to contract and agree with the owners'of any lands and tenements, for the purchase-of so much thereof as shall be necessary for the purpose of making, digging, and perfecting the said canal, arid of erecting and establishing all the necessary Jocks, works and devices, to such a navigation belonging, if they can agree with the owners but in case of disagreement, or in case the owner thereof should be a feme covert, under age, non compos mentis, or out of the state, or otherwise* incapacitated to convey, a proceeding in nature of a writ of ad quod damnum was authorised.
    In pursuance of these acts the two companies were organized, and the Delaware and Schuylkill Canal Company proceeded to lay out, and construct their canal; the line of which passed through the land of William Young, who was a stockholder, and for some time a manager of the company.
    About the 1st of April, 1793, an agreement was made by the company with Mr. Young, for the purchase of so much of his land as*was requisite for the canal, amounting to 135 perches. In the same year the canal was dug out through this land. By the Act of 1792, it was declared that if the company should not within 10 years from the passing of the act, complete the canal, so as to open a sufficient communication from the Schuylkill to the Delaware, it should be lawful for the Legislature to resume the franchises thereby granted. By an Act passed on the 23d of March, 1802, reciting, that unforeseen occurrences had prevented the completion of the canals within the time- limited by law, it- was enacted that the act of 1792 should be revived and extended for the space of 5 years from and after the passing of the Act of 1802, and thence to the end of the next session of the General Assembly. By another act passed on the 17th of March, 1806, the Act of 1792 was continued in full force until tlie 1st of January, 1820. On the 2d of April, 1811, an act was passed, which after reciting that the stockholders of the two companies before-mentioned, had agreed to form a joint stock and interest under the title of “ The Union Canal Company of Pennsylvania,” enacted in the first section, that “all acts and supplements heretofore passed in favour of the Schuylkill and Susquehanna Navigation, and also of the Delaware and Schuylkill Canal Navigation, be and they are hereby repealed, and that the corporate title of the present managers and company of the Schuylkill and Susquehanna Navigation, and of the Delaware and Schuylkill Canal Navigation, shall henceforth cease and be abolished; and that the corporate style and title of the said corporation, shall be “ The Union Canal Company of Pennsylvania;” under which name the said corporation shall have, hold and enjoy all estates, grants, rights, interests and privileges heretofore held and enjoyed by them under their former respective titles,” &c. On the 29th of March, 1819, an act supplementary to the preceding act was passed, which authorised additional subscriptions to the stock of the Union Canal Company. The 8th section declared that “ all right and title to any and every kind of property, real, personal or mixed, which belonged to the late Delaware and Schuylldll and Schuylkill and Susquehanna Canal Companies, or which is now held by the Union Canal Company, shall be held in common by the old and new subscribers,” &c. By the 11th section, the company was required to confine its operations and improvements to the completion of the communication between the Schuylkill and the Susquehanna.
    This action was instituted to December Term, 1833.
    On the trial the plaintiffs gave in evidence the following bill or account in the hand-writing of Win. Young, viz.
    “ Delaware and Schuylkill Company, to Wm. Young Dr.
    1793, 1st April. 135 perches land, Northern Liberties, at
    £87, 10s. per acre, $196 73
    Interest until 1st of June, 1798, 60 98
    257 71
    1798, 16th July. To cash lent, 50
    $307 71”
    They also gave in evidence a survey of the canal tract through the land of Young, dated June 25th, 1796, addressed to William Young; the measurement of a contract for cutting the canal through his land, dated April 26, 1796; an account of the Treasurer, dated Dec. 11th, 1799, crediting Young for land, $257 7], and debiting him with certain shares of stock of the company in full payment of the balance; a minute of the company dated December 17, 1799, approving the said accounts; certain bills rendered by Young against the company, from 1795 to .1799; a resolution of the ' company dated May 3d, 1796, “ that the contracts for the lands of Messrs Morris and Young be deemed and taken to have been entered into and concluded at the time the respective contracts for working the same were madethe certificate of the ten shares of stock of Wm. Young in the Delaware and Schuylkill Canal, dated August 4th, 1792, with credits for instalments endorsed as paid at different times, from 31st October, 1792, to 22d January, 1800; and receipts signed by William Young, and dated 7th of May, 1821, for 10 shares of the Union Canal stock’ in lieu of his Delaware and Schuylkill Canal stock. They also proved that Mr. Young was present at certain meetings of the board of managers in 1796 and 1800.
    The defendants then gave in evidence a deed of conveyance from Samuel Miles to Wm. Young, datéd 25th of March, 1795, for 8 acres 151 perches, including the premises in question, and the following parol evidence:
    Frederick Branner testified, that'in the year 1793,-the Company dug out the Canal in Young’s property. He saw them at it. In 1794 they dug east of the Ridge Road. Mr. Young’s property was west of the Ridge Road. One Mr. Johnson superintended. After it was kept as a pasture ground, shut up and nothing done to it. Was so kept in 1794. The fence was never removed away at any time. It was always kept up. They made a garden — the family that lived there on the front part. The rest was kept for grazing ground. The canal bottom was pastured with the rest. About half was full of water, and the rest the cattle pastured in. The water was a nuisance, and brought fevers. Mr. Young opened a little to let it run off so as not to keep so much there. The people were a good deal unhealthy there with the ague. No body but Mr. Young appeared to be owner of that property as far as I know of. I have lived about a quarter of a mile from it now about twenty-four years. Before that I-lived in the city. I knew'the property very well before. Been often past — twice or three times a day. Iliad a pasture ground of one John Pemberton just above. Company went east in 1795. I never saw any thing more of them since. Nothing done to it since.
    Being cross examined, he said : — The digging was three or four feet deep — some not so deep — and on Mr. Logan’s place you could swim a horse. None of it was ten or fifteen feet. The fence I spoke of was round Mr. Young’s property. There never was any alteration made in the fence at all. It stood as before. Young had, may be, ten acres it stood round. There were buildings there — a stable, bouse, and printing office. It was a few years after 1794 the print•ing office was put up. The fence was two or three rods, may be, from the digging in some places, and in some places further. In some a few acres from the digging. The fence was all round, and division fences too — some west and east. None of the fences were removed, cross fences or others, before 1794 or 1795, when the last of the digging was done. The garden was on another part than the canal — was, a few rods off, may be. The cows used to run in the excavation. No other use was made of it. They used to run in it from the time the digging was first made, in 1793. Pegg’s run ran across the canal. It began above Young. It was owing to a good deal of rain that the canal was filled. Part of the canal could, not be drained. The last I saw of digging was in 1795, except where the buildings are put, the trench is there yet. I mean Fox and Price’s houses. /
    Being re-examined — he said the people made a gap to go through >to dig, and then fenced after — but' did not pull the fence down at Young’s. Don’t know of any fence running across the canal since. Thirteenth street now runs across this ground, and the canalón the line of Thirteenth street was filled up. That street is now curbed and paved. !
    Being again cross-examined — he said Thirteenth street was puf .there three or four years ago. Was paved two years ago. Was opened and filled several years since.
    Jacob Gardner, testified, that he had lived in the district of Spring Garden 33 years last September. He was. one of the Commissioners for sixteen years in that district, commencing in 1813. He collected the county taxes for nine years, commencing in 1820. He was assessor in 1821, and helped make the assessments six or seven years. He had known this White Hall estate thirty-four or •thirty -five years. He knew it as Mr. Young’s property; the whole ■of it. He never knew there was any division in it. It was always •assessed to the estate of William Young during the time he had anything to do with the assessment and collection of taxes. He thinks Mr. Grigg, the tenant, paid him the taxes. There never was any part of this estate assessed to the Union Canal Company. They never paid any taxes on it. He never collected any taxes from it except the Young people. Mr. Young was landlord of Mr. Grigg. The excavation east of the Ridge Road always remained. We filled the canal ground up east of the Ridge Road when it was occupied by Spring • Garden Street. It was curbed and paved by the Commissioners of the District of Spring Garden. I was superintendent four years.- I had a great deal of it filled up. The Canal Company offered no resistance, and made no claim; I never collected or assessed the taxes to the Union Canal Co. on any part of the route of this survey. The Columbia Rail-road is .located from this end of Pratt’s place partly to the bridge, on the canal survey — through Pratt’s, Williams’s, Fisher’», &c.
    Being cross-examined : — He said, that as the Canal Company had not done what they undertook, we thought it reverted to the owners, and we taxed it to the owners, all excepteast ofPratt’s, where a town plot is laid, and filed liens for taxes, where the owners were unknown. White Hall estate was always assessed as Young’s. We took the whole number of acres to William Young, without any allowance-for the canal. We had the old assessments to go by. We found it had always been assessed to Young, and went by it. The assessment does mention the number of acres. The taxes were $50or f60 moreor less. All the ground where it was excavated, the owners fronting on it paid the taxes. The assessors did consider they included the excavation to the adjoining owners. The assessments were ajw’ays the same. Mr. Haws, who assessed for 18 years before me, never intimated that !he Union Canal Company had any ground to be assessed. He (Mr. Haws) assessed for 18 years. His last year was in 1808. He took sick and I had to finish it for him that year. There is an , assessment every year. He spoke of annual assessments. Robert Brooke was the first surveyor of the district. After his death Joseph S. Siddall, Mr. Ph. M. Price succeeded him, and Joseph Fox is Regulator now with P. M. Price. They have been such seven or eight years. They have reported extensive plans for the district for confirmation. It is necessary for them to go over the grounds of the district for the purpose. They give public notice of the opening of streets that parties may make objections. It was dug for a canal. That was generally known. The court requires a survey to be actually made on the ground.
    
      Peter Ilotz swore that he was collector of taxes for the District of Spring Garden for 1829, 1830, and 1831. Had known the White Hall estate thirty or forty years. He never knew whose property it was till about seven years ago. He had understood it was assessed to William Young since he was collector. Don’t remember about the digging of the canal there. Knows there was one dug there. Mr. Grigg paid me the taxes on the estate.
    Jacob Gardner called again by plaintiffs — said Spring Garden street was opened through this property about four years since. Price and Fox had their office together.
    Anthony Grigg, being sworn said: — I was tenant of the White Hall estate. In 1812 we moved there, and left in 1830. It was rented of William Young. The whole enclosure. We rented of no one else any part of if. I knew of no other claim during that time to that property of the ownership. I paid the taxes of that property. There were no taxes paid by any other person than me for any portion of it. The building front of the canal was the printing office. , We first paid about $35, and afterwards about $60 taxes. In a wet season the bottom of the c.anal had water in it, in a dry it had weeds. It was a dry season to clear it of water. The canal was lower than Pegg’s run, and for that reason the water stood in it. It drowned vegetation, and we supposed it helped to create the jntermittents of the neighbourhood. Fevers prevailed there very much. The damage was incalculable if it were all owing to that.' There were large brick ponds in the neighbourhood. Sometimes we had not a man or a boy to work owing to the fever and ague. The cattle were turned in, and nothing prevented them going in, and they eat the grass- on the bank. One fence ran across the canal east of Pegg’s run, and divided the property into four or five lots — one near where Thirteenth street runs now. The property was always under fence from 1812.
    Being cross-examined, he said :: — The fence near 13th street we put up. It was not there before. In a few years after we went, we put it up. At the west end there were 300 feet, and about ISO feet at the east end that were not excavated. This was left in its original state. The almost only way to get from one part to another was round these ends. We did not undertake to fill up the canal, or make alterations, but deepened the run.
    Being re-examined, he said : — There was one brick yard 300 feet off directly across the Ridge Road. There was never a great deal of water there. There was another a quarter of a mile off. We considered the canal a part of the cause of the sickness, was one • reason why we attempted to drain it.
    Again cross-examined: — I always thought it was'Mr. Young’s property. I thought the fever was more after damming the Schuylkill. It was the next season after the damming that the hands were so bad. I did not know that the Canal Company had any claim at all. We made a fence along the bank of the canal about 200 feet from the stable to just east of Pegg’s run, and then across it. Part of it on the bank of the canal. We put this up when we put up the other.
    Thomas Nesbit, sworn, said,: — I lived on this place, White Hall," near 8 years. I went apprentice with Mr. Young in 1798. That' property was enclosed during all the time I knew it. It was at that time in the occupation of Mr. Young. He had tenants on it. The whole was enclosed and used so far as they could make any use of it. The bottom was useless so far as I know. There was a fence across it, dividing that portion between the printing office and Ridge Road, about 100 yards from the Ridge Road. — There was nothing done by the Canal Company during the time I knew it. There was no claim of property set up by them that I ever heard of. The excavation stopped from 100 to 150 feet from the west end, and from the east 90 or 100 feet. There was but one fence across the canal. It was there when I went there. — There was a small portion of the canal bed cut off by the fence, was in corn, put there by the tenant. It was the bed of the canal and east of the fence. Once or twice there was corn in it. The tenant’s name was Adam Tice. He was old then, and not now to be found. It was in 1802 or 1803 that A. Tice raised one or two crops of corn. The water in the bottom was supposed to be prejudicial in my time. There was sickness experienced there then by the people. The canal part was used for grazing with the rest of the place as far as it could be.
    A. Origg, again called by defendants, said : — My father moved to White Hall estate in 1808, and I occasionally visited him there. He rented from Wm. Young. The property continued enclosed during that time to 1812.
    William W. Woodward, being sworn, deposed: — I cannot say positively how long I have known it, (White Hall) except in 1798 I was sick there. I was apprentice with W. Young in 1787. I remember seeing the canal dug round the printing office. In 1802 I was likewise there. And since I have seen it, I had a great deal of printing done there. One (book) I was looking at the other day, in 1806. That property has always been enclosed since I have been acquainted with it. I have taken a walk frequently round the lot. I never doubted any person being the owner but Mr. Young. I never heard of any other. The printing office was a strong building, and built for some strong purpose, or it would not have held as much as it did.
    Being cross-examined, he said: — To the best of my recollection every part of the ground was,enclosed. One evidence was, that in 1798 my wife said she had to climb the fence. It was a narrow building. Faced on the canal.
    The defendant further gave in evidence certain deeds from Wm. W. Young and John M'Allister, jun., trustees named in the will of William Young, to Joseph Fox and Philip M. Price, in fee, dated 12th of June, 1833, for certain lots of ground containing parts of the strip of land claimed in this suit: Resolutions of the Company relating in 1829, 30, to the use of the bed of the Canal by the Columbia Rail Road ; other resolutions passed in 1815, 1816, 1834, 1835, relative to,the disposal of the interest of the Company in the ground intended for the canal. A letter dated Philadelphia, August 27, 1814, from the president of theUnion Canal Co. to Wm. Young, requesting him in conformity with a resolution of the Co. to have a deed prepared for the part of his land, through which the canal was dug, and for which he received credit on the books of the Company in December 1799. It was alleged that no answer was returned to this letter. Evidence was also given to show that the defendants had offered to refund the principal and interest of the damages allowed to>Mr. Young, upon receiving a release from the plaintiffs.
    The plaintiffs further gave in evidence a statement of the damages paid on the route from the Delaware to the Schuylkill, viz. by agreement with owners $12387,41- By ¿ssessment of jury $3108,33. Two mortgages, each dated 12th June, 1833, partly on the property in question, one from Joseph Fox to John M£Allister for $6000, and the other from Philip M. Price to the same for $7000. They also proved that written notice was given to the defendants, Fox and Price of the title of the plaintiffs, on the 28th of June, 1833.
    The testimony on both sides being closed, the defendants filed an obligation to refund to the plaintiffs, in case of a verdict and judgment in their favour, t.he principal and interest of the damages allowed William Young; provided the Court should be of opinion that they were equitably bound to refund the same.
    The following specifications of the points on which the defendants relied were filed by their attorneys.
    “1. The plaintiffs have no right of entry into the premises in question ; having had no possession thereof within twenty-one years before the cotpmencement of this action.
    2. The plaintiffs have no right of entry into the premises; because the defendants and their ancestors have had the exclusive, absolute and adverse possession of the premises for twenty-one years and upwards before the commencement of the present suit.
    3. The defendants are protected by the statute of limitations; because they enclosed round the entire tract in question, cultivated, grazed, and fenced along and across the same, upwards of twenty-one years before the commencement of this action, whereby the plaintiffs were ousted, and the defendants have ever since so maintained their possession.
    4. The plaintiffs lost their right of entry, if any they ever had, by omitting to pay any part of the taxes assessed on the premises in question for twenty-one years, and suffering the defendants to pay the whole taxes on the same for twenty-one years and upwards, before this action'was begun, whereby it should-have been left to the jury to presume that the plaintiffs had been ousted and barred by the statute of limitations.
    5. The plaintiffs have no right of entry into the premises in question ; because they have not shown that they intend to occupy the same “ for the purpose of making, digging and perfecting” a canal between the river Delaware and Schuylkill, the only purpose for which the Delaware and Schuylkill Canal Company were authorized by their charter to take ór acquire the said property.
    
      6. The plaintiffs have no right of entry into said premises; because they have abandoned the purpose of making such canal, by neglect of all work upon it for forty years, by never having acquired a continuous right to occupy the soil from one river to the other, by releasing to the adjoining owners rights that they may have acquired, by relinquishment of the route to the Commonwealth for a rail-way, and the occupation of other portions of it by public streets.
    
      7. The plaintiffs have no right of entry into said premises, because the State has, by Supplemental acts of Assembly, accepted by the plaintiffs, prohibited them from making the canal from the Schuylkill to the Delaware.
    8. The plaintiffs have no right of entry into said premises, unaccompanied by a satisfactory demonstration of their power and intention to make the said canal; because they could not constitutionally take the property of a citizen against his consent, except for the public use authorized by their charter; and the agreement of parties to accept damages, was not intended to confer any greater interest than the company could acquire by an adversary inquisition and judgment of the Court thereon.
    9.. That the only title that the Delaware and Schuylkill Canal Company could acquire consistently with their charter, whether by agreement with the parties, or by inquisition and judgment of the Court, was a base, qualified and determinable fee, depending upon the public use of the soil as aforesaid, and not a fee simple, “ generally, absolutely and simply.”
    10. That by the agreement between the Delaware and Schuylkill Canal Company and William Young, the parties did not intend a purchase and sale of the title to the land, for any estate or transferable interest therein, but that the former should merely acquire an easement, they paying “ damages as settled for lands occupied” for that purpose ; from which easement the premises are now discharged by abandonment, and the acts aforesaid relinquishing the franchise; and if an easement, no ejectment will lie therefor.
    11. That whatever may have been meant by the parties as to the nature of the claim, title or interest to be acquired by the Delaware and Schuylkill Canal Company, the said Company never did acquire a legal title in the premises, but merely an. executory contract or equitable interest, liable to be repelled by any countervailing equity.
    12. That the land having cost William Young five hundred and sixty dollars an acre, and the Company having allowed him in damages to the credit of his stock, but two hundred and thirty-three dollars and thirty-three eents per acre, the larger consideration to be paid to Wm. Young, were the stipulated benefits of the canal to his property, which the Company have failed to make according to their charter and contract with Wm. Young.
    13. That any equity the plaintiffs could derive from the payment of the damages has been fully neutralized by the damage sustained by the digging of the soil, and injury thereby to pasturage and health; and if that be not sufficient, by the agreement of record by the defendants, to refund the principal and interest of said damages, if the Court shall be of opinion that any such obligation equitably rests on the defendants.
    14. The plaintiffs have slept too long, upon their rights, if any they had, and equity will not aid their stale claim — equity adopts the statute of limitations.
    15. Circumstances having greatly changed in respect to internal improvements, the ability and purposes of the plaintiffs, and value of property, so that neither party could now derive from the execution of the contract the expected benefits, it would be inequitable to enforce the specific performance of it.
    16. After the lapse of time that has taken place, under the circumstances in evidence in this case, a release of all claim from the Company will be presumed.
    17. The Delaware and Schuylkill Canal Company was dissolved in 1811, when the Union Canal Company was formed; and thereby all title to the premises in question, if any they had, reverted to William Young, and wTas never acquired by the present plaintiffs.
    18. The defendants, Fox and Price, are record purchasers of the premises occupied by them, without notice of plaintiff’s title, and unaffected by it, whatever it may be.
    19. Because the evidence is insufficient to support the said verdict, and because it is contrary to equity and law.”
    Mr. E. K. Pi-ice, for the defendants.
    1. The plaintiffs never had legal possession of the land. The digging of the canal in 1793 was a trespass. If any agreement was made, it was not until 1796. Mr. Young remained in possession; and his possession was distinct, notorious and adverse. The evidence shows that in 1798, a fence was run across the canal, and that in 1802 and 1803, corn was raised in the bed of the canal. The property was let out by Young, and every act of ownership exercised over it, precisely as in respect to the remainder of his land. In Jones v. Porter, (3 Penn. Rep. 135,) Judge Huston says, “ a man may enter on and continue in possession of land which he believes or knows is claimed by another, but notoriously claiming for himself in opposition to that other; and 21 years possession will protect him.” Here we say that the possession was adverse from 1796 at least, when he ought to have executed a deed. This was the doctrine bf the Court in Pipher v. Lodge, (4 Serg. Sp R. 569; S. C. 16 Serg. Sp R. 214, 224.) Walker v. Walker, (16 Serg. 4’ R. 379, 374.) Frederick v. Gray, (10 Serg. Sp R. 182.) In Royer v.. Benlow, (10 Serg. Sp R. 306,) it is said that if one suffer his adverary, who has designated his claim by marks on the ground, to pay the taxes for that part for 21 years,'he may be presumed to be ousted pro tanto. Here it was proved that taxes have been uniformly paid by Mr. Young and those claiming under him, and that the plaintiffs have paid nothing. Read v. Goodyear, (17 Serg. R. 350.) Caul v. Spring, (2 Watts, 396.)
    2. The plaintiffs have no right to recover unless they show that the defendant’s land is wanted for the purpose of a canal. A corporation has no right to hold lands except for the purposes of its incorporation. There is no act of assembly authorising these plaintiffs to hold land, except such as may be absolutely necessary for the canal. It is the public good, and that alone, that can justify the taking and keeping of lands by a corporation. Constitution of Pennsylvania-, Art. 10. Declaration of Rights, Sec. 1. 2 Kent’s Comm. 229. Act of 0th April, 1833. Angel on Corporations, 80. Dwarris on Statutes, 750. The plaintiffs took only a qualified or base fee. 1 Preston on Estates, 22, 42. Wellington v. Wellington, (1 Blackst. Rep. 645.) This was a mere easement and not an estate in the land. Ammant v. The 'Turnpike Company, (13 Serg. Sp R. 210.) Schuylkill Naoigation Company v. Decker, (2 Watts, 343.) Turnpike v. Franklin Co., (6 Serg. tj- R. 233.) 3 Kent’s Comm. 348. 2 Yeales, 331. A Day, 330.
    3. This is a stale claim which equity will not aid. After a lapse of time like this, specific performance would not be decreed by a Court of Chancery. In this case things are greatly changed. Streets have been opened through this property, and it has greatiy increased in value. If the plaintiffs could be compelled to open the canal, there might be some compensation for the injury done to the lots; but they are forbidden by law. Pratt v. Carroll, (8 Crunch, 471.) Brashears v. Gratz, (6 Wheat. 528.) 1 Maddock Chan. 422. 3 John. Ch. Cas. 60. Peebles v. Reading, (8 Serg. Sp R. 493.) Elmendorf v. Taylor, (10 Wheat. 152.) Eakin v. Raub, (12 Serg. Sp R. 375.) Pratt v. Fattier, (6 Peters Rep. 416.) Wulker v. Walker, (16 Serg. Sp R. 384.) Kingston v. Leslie, (10 Serg: Sp R. 289.)
    4. The Delaware and Schuylkill Canal Company was dissolved in 1811, and anew corporation was established for distinct objects. It is settled that upon the dissolution of a corporation all its real estate remaining, reverts to the grantor and his heirs. Angel on Corporations, 105, 513; and the cases there cited. 2 Kyd on Corp. 516. 2 Kent’s Com. 246. [Sergeant, J. Is there any case of a sale to a corporation where the purchase money has been paid, in which this doctrine has been held?] The law is laid down generally; and there is no exception of that case. The rule as stated was recognised by the present Chief Justice in The Turnpike Company v. Franklin County, (6 Serg. Sp R. 234.)
    5. At all events, the defendants, Fox and Price, are entitled to the judgment of the Court, as bona fide purchasers for a valuable consideration without notice. -They saw the progress of public improvement obliterating almost every mark of this canal, and no steps taken by the company to keep up or make known their claim. There was no record notice whatever, either by registering a deed, or by writ of ad quod damnum. If the plaintiffs succeed against these defendants it will be in contravention of the recording acts, (1 Sm. Laws, 422, &c.) The first notice they received was on the 26th of June, 1833, after they had commenced building and made contracts, for which they were liable. There is nothing to affect either of them with previous notice. Sugden on Vendors, 532, 3. Hyne, v. Dods, (2 Atkyns, 275.)' Billinglon v. Welsh, (5 Binn. 131.) Peebles v. Reading, (8 Serg. Sp R. 496.) Scott v. Galloway, (14 Serg. Sp R. 333.) Willis on Trustees, 65.
    Mr. Charles IngersoE and Mr. Wm. M. Meredith for the plaintiffs,
    were requested by the Court to confine themselves to the subjects of the statute of limitations and the notice to Fox and Price.
    1. The statute of limitations begins to run only from the time of a notoriously adverse possession. Hawk v. Senseman, (6 Serg. Sp R. 21.) Mercer v. Watson, (2 Watts, 238.) When did that commence here? The plaintiffs took all the possession that the subject admitted of, that is by excavating the bed of the canal; and continued that possession until a very recent period. There is no evidence whatever of an ouster. On the contrary it appears that the company have sold their land in several instances. We find also that Mr. Young recognised the title of the plaintiff in several instances; from 1798, when he made the memorandum in writing, down to 1821, when he took 10 shares of stock in the present company. The payment of taxes, in the case of wild land has been considered as evidence of possession; but ihe presumption has never been extended beyond that case. Here in fact it does not appear that Mr. Young ' paid taxes for the land in question, since he paid for eight acres only; and as to the argument derived from the non-payment of any taxes by the company, it was held in The Schuylkill Bridge Company v. Frailey, (13 S. Sp R. 422,) that bridges and other public works, to which the right of demanding toll is annexed, are not taxable. As to the letting by Mr. Young, it is to be presumed that he intended to demise only that part of his land which he had not sold to the plaintiffs. Mr. Young was both a trustee and tenant in common. 16 Ves. 390. Wallace v. Duffield, (2 Serg. Sp R. 527.) Rush v. Barr, (1 Watts, 120.) M‘Martin v. Bell, (2 Peters Rep. 120.) Johnston v. Humphreys, (14 Serg. <§• R. 394.) 7 Johns. C. R. 90. Blanchard on Lim. 69. Irvine v. Turnpike Company, (2 Penn. Rep. 466.)
    2. It is not very material whether Fox and Price are to be considered purchasers without notice, or otherwise; since they have not paid the purchase-money; and if the plaintiff succeed, it is settled by >aur>law that they will have a sufficient defence on their mortgages. But it is impossible to say, that they have not had notice. The possession by the Company was such as to strike the eye at once, and not to be mistaken. The evidence shows that these defendants were surveyors of the district; and of course they must be supposed to know the state of things. In Billington v. Welsh, a notorious possession was said to be sufficient. Krider v. Lafferty, {ante, p. 303,) shows, that what ought to put a purchaser on inquiry will affect him. Besides actual notice was given to them in time to prevent any expenditure of money; and the circumstance of their giving mortgages for the whole purchase-money shows that they were aware of the defect in the title.
    Mr. Broom, in reply.
    This case differs from almost all others mentioned in the books; since it is an attempt to compel specific performance for a purpose entirely different from that originally contemplated by the parties. No deed has been executed; and if the contract is to be consummated, it ought to be upon the tei'ms of completing the Canal. The evidence shows that Mr. Young did not acquire the legal title to this property until 1795. No valid agreement could therefore have been made in 1793, as supposed on the other side. From December 1799, when the purchase-money is said to have been paid, the possession was adverse. The Company about that time abandoned the intention of cutting a canal. The possession supposed on the other side, was certainly far from such as the law contemplates. Everything showed that if there had been an attempt at a canal, it was abandoned. The fences of Mr. Young were like those of the neighbourhood, and implied continuity of possession. The payment of taxes is evidence of ownership every where. Besides, it appears that streets were opened through this land, and the plaintiffs never interfered or claimed damages. If the plaintiffs intended to keep up a claim to the property, they should have given notice by ejectment, or otherwise, at an earlier period. In 1814, at least, they knew that the claim would be contested. The following cases were cited or commented upon, Smith v. Patton, (1 Serg. óp R. 80.) Jones v. Porter, (3 Penn. Rep. 135.) Pipher v. Lodge, (16 Serg. Sp R. 224, 4 Serg. Sp R. 569.) Carothers v. Dunning, (3 Serg. Sp R. 379.) Frederick v. Gray, (10 Serg. Sp R. 188.) Pennock v. Freeman, (1 Watts, 408.) Caul v. Spring, (2 Watts, 896.) Smith v. Patton, (1 Serg. 4* R. 84); 1 Vernon, 229, 271; 1 Ves. 218.
   The opinion of the Court was delivered by

Rogers, J.

This was an action of ejectment to recover 135 perches of land. On the trial of the cause, by consent of parties a verdict was taken for the plaintiffs, subject to the opinion of the Court upon the whole case.

The defendants contend—

1. That no estate passed to the plaintiffs, which will entitle them to recover in this action.

2. That if any estate passed, the plaintiffs have lost their right to recover.

3. That the defendants may rescind the contract.

4. That for part of the land, Fox and Price, two of the defendants, are bona fide purchasers, without notice.

By the second section of the act of the 29th September, 1791, the Company have the power of purchasing, taking and holding, to them, their successors or assigns, in fee simple, or for a lesser estate, all such lands, tenements, and hereditaments, as shall be necessary for the prosecution of their work. There is a like provision in the act of the 10th April, 1796. In the 6th section of the first act, it is provided, “ That it may be lawful for the President and Managers, to contract and agree' with the owners of the lands and tenements, for the purchase of so much thereof as shall be necessary for the purpose of making, digging, and perfecting the canal, and of erecting and establishing, all the necessary locks, works and devices,” &c. if they can agree with such owners ; but in case of disagreement, &c., the act provides for the issuing a writ of ad-quod damnum, to assess the damages done to the owners of such lands and tenements, andón the return of the inquest directs the Court to give judgment, and declares, that the Company shall be entitled to have and to hold, to them and their successors and assigns forever, all and every the lands and tenements, &c. in the said inquisition described, as fully and effectually as if the same had been granted to them by the respective owners thereof.

It is immaterial in this controversy, whether the contract of sale between Mr. Young and the Company was, entered into on the 1st of April, 1792, or at a later period. The effect on the title is precisely the same. I must, however, be permitted to observe, that the evidence shows, roost clearly, a parol contract of the 1st of April, 1792, of which a memorandum, in writing, was made in the hand writing of William Young, some time in 1798. The contract was executed by the entry of the Company on the land, excavating it, preparing it for the uses and purposes of a canal, and by payments of the purchase-money. The resolution of the 3d May, 1796, shows that the contract was made at or about that period of time. Be this as it may, the contract was made under the authority of the acts cited, and was followed by the Company taking possession, as before stated. The defendants contend, that under this contract the plaintiffs acquired an easement or right of way only, and that for an injury to such an interest, ejectment will not lie; and it is true, if it be an easement, ejectment is not the proper remedy, as ejectment will not lie for an incorporeal hereditament. 2 Yeates, 331; 4 Day’s R. 330.

It will not admit of doubt, that the Company might acquire, either-by contract, or on a writ of ad quod damnum', a right to the soil, either in fee simple or for any less estate. In this, the acts are express. When a contract is made for a purchase, for the use of the canal, as well as for the use of an individual, the presumption is, as against the grantor or bargainor, that the greater estate was intended to pass. In the note or- memorandum of Mr. Young, the quantity of the estate is not mentioned; but a sale of lands on an agreement to sell, imports a fee. Brooke, Abridgment, title Contract, Bargain and Sale, folio 169. In the case of a corporation aggregate, if a freehold passes, it must be afee or an estate equivalent to it; for in a grant of land to a corporation aggregate, the word successors is not necessary, though usually inserted; for albeit, such simple grant be only an estate for life, yet, as^ a corporation never dies, such estate for life is perpetual, or equivalent to a fee simple, and therefore the law allows it to be one. (2 Black. C. 109.) The bill of Mr. Young has nothing on its face which indicates that he sold to the company the right of way, only ; and if that had been his intention, it should have been so expressed in the instrument itself. Nor is the inference, which is drawn from the silence of Mr. Young, to be rebutted by calculations fonnded on the value of the land per acre, based on the price given for the whole tract, and of course, including in the estimate the improvements which were on the property at the time of his purchase. Calculations of this kind would be too uncertain; and it is impossible for us to say for what reason the vendor, (supposing the fact to be as is alleged), chose to part with his property to the Company for less than its real value. On the argument of this part of the case, reliance was had on the resolution of the 30th June, 1796, which directs Mr. Govett to give credit to Mr. Young for the amount of his damages, as settled, for the land occupied by the tract of the canal. The latter part of the resolution is nothing more than a description of the land for which the damages are directed tobe paid; and as to the word “damages,” the Company have used the term which is used in the 6th section of the act of incorporation; the money which is given as a compensation to the owner, is given as his damages ; and this as well where the Company acquire a right to a fee simple, as any less estate.

But if a fee simple did pass, the defendants contend that the plaintiffs have lost the right of recovery. Under this head I shall consider

1. The statute of limitations.

2. That equity will not lend its aid to enforce the plaintiffs’ claim.

3. That there is a condition annexed to the contract, which has not been performed.

4. That the Company was dissolved in 1811.

After what has been already said, we must take it that the plaintiffs have a fee simple or an estate equivalent thereto in the property in controversy. The Company had taken possession of the locus in quo, by excavating and embanking it, and filling up for the purposes of a canal. They had the only possession, which they were entitled to ; for it may well be doubted, whether they would have been at liberty to have taken an exclusive possession of the property, until, the passage of the act of the 29 th March, 1819, which made it the duty of the Company to confine its operations to the completion of the communication between the Tulpehocken, Quittapahilla and Swatara Creek. The Company have, by these acts, acquired a concurrent, if not an exclusive possession. It is therefore incumbent on the defendants to show, either an abandonment of the right, or an ouster of the possession so acquired and held by the Company, and'a hostile and adverse holding by the defendants.

As to( the allegation of an abandonment of right, there is scarcely a pretence, particularly as the plaintiffs had taken possession, and held the property, until 1819, for the purpose of complying with the acts, under which they were incorporated ; for it must be observed, that until the passage of the act of 1819, the duty and right to make the canal, remained as it was under the act of 1192; and more especially will not the doctrine of abandonment apply, when the whole amount of the purchase money has been paid? The Company, so far from relinquishing the right of property, asserted it, not only as to this, but to every other parcel of land held under similar titles. Indeed, I am not aware that their title has been the subject of dispute, except in this instance.

The entry of the owner of land, is barred only by an actual, continued, visible, notorious, distinct, and hostile possession, for twenty-one years. It is not necessary to entitle him to recover in ejectment, that he should prove, that he, or those under whom he claims, have been in possession within twenty-one years, before bringing suit. Hawke v. Senseman, (6 Serg. & Rawle, 21.) Mercer v. Watson, (1 Watts, 330.) Rung v. Shoneberger, (2 Watts, 27.)

The title draws to it the possession ; and when the possession is concurrent, no title can be acquired by either, on the ground of an adverse holding. The defendants claim the possession to have been adverse and hostile, because Mr. Young paid the taxes for the property, leased the land, without an exception of the part owned by the company ; because the tenant raised a crop of corn for one or two years in the bed of the canal; and because a fence was removed, and a fence run across the line of the canal. I see nothing in any one, or all the circumstances adverted to, which brings this case within the rule so distinctly laid down in Hawke v. Senseman, and the other cases cited. Mr. Young continued to hold and enjoy the land in ,the same manner as he had been accustomed to do, at the lime when the company were confessedly the owners of the land. There was no open, visible and notorious change in his conduct, which could put the company on their guard, and make it, in proper time, their duty to assert their right. On the contrary, from any act of his, they could not have the slightest suspicion, that it was his intention to dispute their right. So far from this, he acknowledged their title by a receipt of the 7th May, 1821, for ten shares of the Union Canal stock, in lieu of his Delaware and Schuylkill stock. We cannot in justice to Mr. Young, suppose that at that time he had any idea that he held the possession by a title adverse to the company. It admits of some doubt, whether the whole tract without allowance, was assessed to William Young, but be this as it may, the payment of the taxes under the circumstances of this case, (supposing the interest of company liable to taxation,) furnished no evidence of an adverse holding. To give title by the statute of limitations, the possession must be continued. Raising a crop of corn for a year or tw'o, is not sufficient to give title, nor will the fact that a fence was run across the line of the canal, have that effect. In conclusion on this part of.theease, I will observe, that the rule in this state is, that when there is a given state of facts, either admitted or distinctly proved, whether the possession is adverse, is a question of law; and it would be error in such, a case to submit the question of title, to be determined by the jury. Rung v. Shoneberger, (2 Watts, 27.) Star v. Bradford, (2 Penn. Rep. 384.)

It is suggested, that this is an equitable action; and that it is a principle in a Court of Chancery, that he who asks equity, must do equity. The principle, which cannot be disputed, applies in its full force to an executory contract, when it is necessary to invoke the aid of the Court. Chancery leaves the party to his remedy at law, unless he complies with the equity principles, which govern the decision of the Court. I am not aware that the same strictness is applied to the case of a contract executed by delivery of possession, and payment of the purchase money; and in this particular, the cases cited differ from this case. There is a discretion undoubtedly vested in a Court of Chancery, but this is not an arbitrary discretion, but it is governed by certain fixed and well defined rules. .In order to claim the benefit of the rules, it is necessary for the defendants to show that they are entitled to equitable relief; and this must depend upon the construction of the contract. The equity on which the defendants rely, is, that the property was sold by William Young, on the condition of making the canal, which condition has not and cannot be performed. They contend that the plaintiff acquired but a base or qualified fee; and if it be so, it is a flat bar to the plaintiffs’ action.

A qualified, base or determinable fee is an interest which may continue forever; but the estate is liable to be determined by some act or event circumscribing its continuance or extent. The instances which are usually given to illustrate this species of estate, are a limitation to a man and his heirs so long as A. shall have heirs of his body; or to a man and his heirs, tenants of the manor of Dale, or till the marriage of B.; or so long as St. Paul’s Church shall stand, or a tree shall stand. In these and similar cases, the estate will descend to the heirs, but continue no longer than the period mentioned in the respective limitations, or when the qualifications annexed to it are at an end. If the owner of a determinable fee convey in fee, the determinable quality of the estate follows the transfer. JVemo potest plus juris in alienum transferre quam. ipse /label. The general policy of this country does not encourage restraints upon the power of alienation of land. A qualified, base or determinable fee is created by deed, by will, or by some other instrument of writing in express terms, and cannot be implied by law. The instrument which creates the estate shows at the same time its limitations. It is part and parcel of the title, and hence there is no injustice in the purchaser taking the estate with the determinable quality annexed to it; but here there is nothing in the agreement which qualifies the nature of the estate. It is an absolute sale of the fee simple without any restraint whatever; and it would be wrong that the vendee’s title should rest partly in writing and partly in parol. If Mr. Young intended to sell a base fee, determinable when the canal ceased to be used, it-should have been so expressed in the written evidence of the contract. It would be unjust that the law should imply this as a condition annexed to the agreement.

The act of incorporation, as has been before stated, authorizes the company to purchase an absolute right of property in the soil, either in fee simple or for a less estate; and in estimating the price the owner has a right to demand its outside value, without any regard to any supposed advantage, the improvement may be to any other property which he may possess. The same rule governs the jury in estimating the damages to the owner on the writ of ad quod damnum. In this the act differs materially from the recent acts of the Legislature, which direct that due regard shall be paid to the advantages which the improvement may be to the owner. In this contract it is fair to suppose that all these considerations were duly weighed, and that Mr. Young took his chance of a change of location, or any change^of interest, either by the Legislature or the company; if so, he has no more right to complain, when he has received the estimated value of his property than any other citizen of the Commonwealth. In The Turnpike Company v. Ivrin (2 Penn. Rep. 466,) it was decided that the benefit which results to individual property, by the incorporation of a company and location of a public road, does not in contemplation of law enter into the consideration of the contract of subscription; and such subscriptions are necessarily subject to the power of the Legislature, to change the location of the road, when the contrary is not expressly stipulated.

The owner has no assurance of any benefit which may arise from the intended improvements, unless he chooses to make that a part of the contract. He depends altogether upon his calculation of chances. This may have operated upon the mind of Mr. Young. It is most likely he supposed the canal would greatly enhance the value of the remainder of his property. But this cannot be relied on as a circumstance to influence the construction of the contract. A person may purchase a piece of property from a view of erecting a factory, or of engaging in some business which the vendor may suppose will be highly advantageous to the neighbours, and particularly to himself. This may be his motive for making the sale, and may have had an influence on the price, yet, unless it be made a part of the contract, the law will not annex a tacit condition to the sale, that it shall be applied exclusively to the purposes for which it was originally intended. Nor would a Court of Chancery interfere, even when the contract was executory, on an allegation that the vendee intended to apply it to a different purpose, unless there was fraud in the vendee. It cannot be made to form part of the consideration -of the contract, unless so expressed in the agreement; for this would be confounding, as is said in the Turnpike Company v. Irvine, the consideration of the contract, with the motive, which induced the parties to enter into it. Want of faith on the part of the company is not alleged. The alteration in the original plan has arisen from necessity and not from choice.

But aside of those general principles, I cannot see what right Mr. Young and those who claim under him, have to complain.

. By the act of the 29th September, 1791, the legislature incorporated the President, Managers and Co. of the Schuylkill and Susquehanna navigation, for opening a canal and lock navigation between the rivers Schuylkill and Susquehanna. And by the act of the 10th April, 1792, they incorporated the. President, Managers and Company of the Delaware and Schuylkill navigation for opening a canal and water communication between the rivers Delaware and Schuy Ikilll On the 2d of April 1811,the legislature, at the request of an association of a number of the stockholders of the two companies mentioned, who represented that they', had formed a joint stock, and interest under the title of the Union Canal Company of Pennsylvania, repealed all the acts before passed in favour of the Schuylkill and Susquehanna navigation, and of the Delaware and Schuylkill navigation. They enacted that the corporate title of said corporation, should cease and be abolished, and that the corporate, style and title of the said company should be the Union Canal Company of Pennsylvania, “ under which name the said company shall have, hold and enjoy, all estates, grants,'rights, interests and privileges heretojfore held and enjoyed by them under their respective titles.”

The 5th section, directs the president to call a meeting of the stockholders, upon notice given ; and upon an agreement of a majority of the stockholders, certified to the Governor, it is made his duty by proclamation, to declare the law in full force and effect. It further provides, that if any of the stockholders of said company shall neglect or refuse to deliver their certificates of slock, in either of the said companies, and accept stock in the Union Canal Company of Pennsylvania, they may bring suit, &c. to recover, a just compensation ; and their interest in said company, shall thereafter cease. In March, 1815, they passed an act to authorize a company to make a lock navigation in the river Schuylkill. On the 29th of March 1819, the legislature passed the act supplementary to the act, entitled “ An Act to incorporate the Union Canal Company of Pennsylvania.” The 11th section, makes it the duty of the company to confine its operations and improvements to the completion of the communication between the Tulpehocken, Quittapahilla, and Swatara creek. In the act of the 26th March, 1821, the legislature guaranteed the interest on the stock of new subscribers, authorized by the act, for 25 years. And on the 7th of May, 1821, William Young received 10 shares,of the Union Canal stock, in lieu of his Delaware and Schuylkill stock.

This short reference to the various legislative acts, shows, that up to the period of the passage of the act of 1819, the rights and duties of the company remained the same as under the original acts.of incorporation. The Legislature having incorporated a company for making a slack water navigation in the Schuylkill, and by this means secured a water communication with the interior, thought proper to relieve the Union Canal Company from making the eastern section of the canal. But this, by no means impaired their right to the property which had been vested in them by the act of 1811. The duty of completing the canal, was a public duty, of the violation of which William Young had no more right to complain than any other citizen, and over which the Legislature had a complete and absolute constitutional jurisdiction. They had the exclusive right to judge of the expediency of exempting the company from the necessity of finishing what they had so unsuccessfully begun ; and of the policy of this course, there can now be but one opinion. But what right have the representatives of William Young to complain. The ■legislature reserved to him the right to compensation, for his interest in the Delaware and Schuylkill Company; but instead of a vailing himself of it, with a full knowledge of all the legislative enactments, in favour of the Company, and a certainty that the work would be completed, he on the 7th of May, accepted the stock in the Union Canal Company, and surrendered his certificates of stock in the Delaware and Schuylkill Company. He acquiesces in the transfer of the property to the Company; for it will not do for him to avail himself of the advantages of the change, without at the same time submitting to any inconvenience or loss which may attend the substitution of the one for the other.

I have looked carefully through the acts which relate to these companies, but cannot perceive, that at any time there was even a suspension of the rights and duties of the Company. They have always stood in full force. The two first companies were merged in the Union Canal-Company, and at the same time, the right to all the estate was vested in the'latter Company, in the most full and ample manner. There has been no change which can affect the right to any estate which has been vested in them. It follows from what has been already said, that this is not a case where either party is at liberty to rescind the contract, particularly after the great, change which had taken place in the circumstances of the parties, the increased value of real property, in that vicinity, and the express recognition and adoption of the contract by Mr. Young in 1821. Until the ejectment was brought, there was no offer to rescind the contract; and the stipulation which has been filed, cannot be permitted now to vary the rights of the parties.

One other question remains, Are Price and Fox bona fide purchasers without notice ?

In the view we have taken of this cause, it is unnecessary to determine whether the possession of the Company, and the various circumstances disclosed in the evidence, were sufficient notice to the purchasers, to put them on inquiry, as to the nature and extent of the interest which the Company had in the property. The defence, amounts in equity to a plea in bar, alleging that the defendants claim under a purchaser for a valuable consideration, without notice of the plaintiffs’ title. The principle of this plea, as Lord Eldon observes, in Wallwyn v. Lee, 9 Vesey, 24, and Justice Spencer, in 18 Johns. 5(52, is, “ I have honestly and bona fide paid, for this estate, in order to make myself the owner of it; and you shall have no information from me, as to the perfection or imperfection of my title, until you deliver me from the peril, in which you state I have placed myself, in the article of purchasing bona fide.” To the validity of such a plea, a number of particulars are absolutely essential, all of which are enumerated in Svgd.-553; and in 4 Desaussure, R. 280. The plea must distinctly aver that the consideration money mentioned in the deed, was bona fide and truly paid, independently of the recital of the purchase in the deed; for if the money be not paid, the plea will be overruled, or the purchaser is entitled to relief against the payment. A consideration secqred to be-paid, is not sufficient. If seems clear from the authorities, that such a plea will protect the possession óf a bona fide purchaser, without notice, from an equitable title, although even that has been sometimes questioned; but whether it will avail against a legal title, is more doubtful. From a review of all the authorities, Sugden. in his treatise, seems to think it clear, that the plea is a protection against a legal, as well as an equitable claim, although this conclusion has been doubted by Chancellor Desaussure in Snelgrove v. Snelgrove; who observes, that when the title attempted to be set up, is an equitable one, it seems very reasonable that the Court should forbear to give its assistance in setting up such equitable title against another title set up by a fair purchaser. But when the complainant comes with a legal title, I do not perceive how he can be refused the aid of the Court. In Pennsylvania, under our recording acts, it cannot well be doubted that it would be a valid defence, as well against a legal, as an equitable title. More v. Mahon, (1 Chan. Cases 34.) Maitland v. Wilson, (2 Atk. 241. 3 Atk. 314.) Hardington v. Nichols, (3 Atk. 304.) Snelgrove v. Snelgrove, (4 Des. R. 287.) Murray v. Finster, (2 John. C. R. 157.)

The purchaser is not protected, if he has notice, previously' to the execution of the deeds and payment of the purchase-money; for till then the transaction is not complete; and therefore, if the purchaser had notice previously7 to that time, he will be bound by it.

In England the rule is carried to a great extent; for it would seem that a purchaser is not protected, unless the whole purchase-money has been paid. This precise point came before this Court in Youst v. Martin, (3 S. & R. 423,) where the English doctrine was overruled ; and it was held, that where the purchaser has paid part of the purchase-money, the owner of the equitable title, cannot recover the land without repaying the money paid by7 the purchaser, before receiving notice. With this equitable qualification, the rule itself is distinctly affirmed. The burthen of proof is thrown upon the purchasers; and in this instance, the defendants have failed to prove payment in whole or in part of the consideration, independently of the recital in the purchase-deed. The consideration is secured by mortgage on the property ; but that, as has been seen, is not sufficient, inasmuch, as equity will protect the purchaser against payment of it.

Motion for anew trial overruled, and judgment on the verdict.  