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Opinion of the Court.

The defendants below objected to the admission in evidence of the records from the Orphans' Court of Philadelphia, showing the proceedings resulting in the sale of the lands of Nicholas Le Favre to Joseph Brobst, on the ground that the debts of the decedent, as set forth in the petition of the administrator, to pay which the order of sale issued, were barred by the statute of limitations and their lien extinguished, by reason of which it was claimed that the Orphans' Court had no jurisdiction to grant the order. The objection was overruled, and an exception taken.

There was also evidence introduced by the plaintiffs, which was objected to, tending to show payment of taxes by those under whom the plaintiffs claim.

The defendants below offered in evidence on their part an application of Daniel Reese, Lewis Walker, and others, filed in the land office November 26, 1793, indorsed “Ent'd by Wm. Lane for Daniel Rees;” also the warrant from the Commonwealth to Lewis Walker for 400 acres, dated November 26, 1793; also the survey to Lewis Walker made October 22, 1794, in pursuance of the warrant of November 26, 1793, describing the tract in dispute; and then offered a certified copy of a patent from the Commonwealth of Pennsylvania to Peter Grahl, dated April 12, 1797, for the same tract, which patent contained a recital to the effect that Lewis Walker, by deed dated November 27, 1793, had conveyed the said tract with the appurtenances to Peter Grahl. Counsel for the plaintiff's below objected to the introduction in evidence of this patent on the ground that Dr. Ruston held a prior title to the land from the Commonwealth. This objection was sustained, the court refusing to allow the patent to be read to the jury, to which the defendants excepted.

The defendants below then renewed the offer of the patent to Peter Grahl for the land in dispute, in connection with an offer to prove a connected chain of title from Peter Grahl to themselves, to be followed by proof that they took actual possession of the land in dispute in 1875, paid taxes by redeeming the land from tax sales, made improvements, expended large sums of money in opening coal mines, and have ever

Opinion of the Court.

since held actual possession of the land; and also that Nicholas Le Favre, who purchased the alleged title of Dr. Ruston at marshal's sale on October 11, 1803, received notice in October, 1814, of the title of Peter Grahl under the patent to him, and that the plaintiffs below, when they purchased at sheriff's sale in 1872, received notice of the same facts. This offer was rejected, and an exception duly taken.

The court below also refused to allow the defendants to read in evidence certain parts of the return of William Gray, deputy surveyor, to the commissioners of Northumberland County, made in 1796, other parts of which had been read by the plaintiffs below, in order to show that the taxes paid by Dr. Ruston on the lands which he did in fact own in the same county, and paid into the same office during the same time, were paid to or by a different person than the taxes paid on the land in dispute; and to show that there was another tract surveyed by the Commonwealth in the same locality and in the same county in the name of Lewis Walker as warrantee, which was claimed by Dr. Ruston. These offers were also rejected by the court, to which ruling the defendants excepted.

The court below charged the jury, among other things, as follows:

“The plaintiffs put in evidence a certified copy of an ancient paper, dated November 26th, 1793, on file in the land office, designated as old purchase voucher No. 12,969, and in connection therewith a certified copy of an entry, under date of June 14th, 1794, from the old purchase blotter in the land office. These documents were offered to show, and they are evidence tending to show, that Dr. Thomas Ruston was the owner of the Lewis Walker warrant, and paid to the Commonwealth the purchase money for said tract of land.”

And also:

“ The plaintiffs have shown that by sundry mesne conveyances the title which Nicholas Le Favre thus acquired became vested in them prior to the bringing of this action. In connection with their paper title the plaintiff's gave evidence tending to show that for many years they and those under whom

Opinion of the Court.

they claim asserted title to the land and paid taxes thereon without any hostile claim being set up against them until the year 1875, when the defendants took possession. If the evidence on the part of the plaintiffs is believed by the jury, it makes out a prima facie case for the plaintiffs, and they are entitled to your verdict upon this branch of their title.”

To these charges the defendants excepted. These several rulings of the court are now assigned for error.

In the case of Sims v. Irvine, 3 Dall. 425, which was an ejectment for land lying in Pennsylvania, decided by this court in 1799, it was said that, in that state, "payment, or, as in this case, consideration passed, and a survey, though unaccompanied by a patent, gave a legal right of entry which is sufficient in ejectment. Why they have been adjudged to give such right, whether from a defect of chancery powers or for other reasons of policy or justice, is not now material. The right once having become an established legal right, and having incorporated itself as such with property and tenures, it remains a legal right notwithstanding any new distribution of judicial powers, and must be regarded by the common law courts of the United States in Pennsylvania as a rule of decision."

The case of Evans v. Patterson, 4 Wall. 224, 230, decided in 1886, was similar. In that case Mr. Justice Grier, delivering the opinion of the court, said : “The case cannot be made intelligible without a brief notice of the very peculiar land law of Pennsylvania. The proprietors of the province, in the beginning, allowed no one man to locate and survey more than three hundred acres. To evade this rule in after times, it was the custom for speculators in land to make application in the names of third persons, and, having obtained a warrant, to take from them what was called 20" deed-poll” or a brief conveyance of their inchoate equitable claim. Pennsylvania, until of late years, had no courts of equity. Hence, in an action of ejectment, the plaintiff might recover without showing a legal title. If he had a prior inchoate or equitable title, either as trustee or cestui que trust, he might recover. The courts treated the applicant, or warrantee, as trustee for the party who paid the purchase money, or paid even the surveying fees; for the

Opinion of the Court.

purchase money, under the location or application system, was not paid at the time, and sometimes never. When the state succeeded to the title of the proprietors, the application system was abandoned, and warrants were granted on payment of the purchase money for the number of acres for which his warrant called. Hence, where the claimant of the warrant was unable to show his deed-poll, he might recover by showing that he paid the purchase money ; that the warrantee whose name was used was, therefore, trustee for him. And an ejectment might also be maintained in the name of the warrantee, although he had no beneficial interest in the land, and had no knowledge of the institution of the suit. See Campbell v. Galbreath, 1 Watts, 78, and also Ross v. Barker, 5 Watts, 391, which was decided on the title now in question."

It is equally well established that the action of ejectment may be maintained upon a warrant and survey by the owner who paid the purchase money, without any conveyance from the person in whose name the application was made and the warrant issued. Brown v. Galloway, Peters C. C. 291; Willink v. Miles, Peters C. C. 429. It was said by Mr. Justice Washiington in l/uidekoper v. Burrus, 1 Wash. C. C. 109, 113, that “the person whose name appears on the warrant is considered as merely a nominal grantee, and a trustee for the person who pays for the warrant and has it executed;” stating, as a matter of fact in the history of the practice of the state, that“ whereever one person takes out many warrants he borrows the names of certain persons, no matter who they are.” See also Griffith v. Tunckhouser, Peters C. C. 418; James v. Gordon, 1 Wash. C. C. 333 ; Copley v. Riddle, 2 Wash. C. C. 354. This doctrine is established as the law of Pennsylvania by many decisions of the Supreme Court of that state. In Duer v. Boyd, 1 S. & R. 203, 210, that court said: “For above fifty years past lands held by warrant and survey, without patents, have been considered as the legal estate in England, subject to the liens of judgments, courtesy, dower, and other incidents of real property.

In Maclay v. Work, 5 Binney, 154, 158, it is said: “An estate held by warrant and survey, or other imperfect title, without

Opinion of the Court.

patent, is of a singular nature. In many, and indeed in most respects, it is considered as a legal estate against all persons but the commonwealth. It is subject to the same laws of descent, devise, and conveyance as the legal estate. Tenancy by the courtesy and in dower are attached to it. An ejectment may be supported on it.” And in Gingrich v. Foltz, 19 Penn. St. 38, 40 [S. C. 57 Am. Dec. 631], it is said: “In Pennsylvania a warrant and survey, attended with payment of the purchase money, is to be considered, as against all but the commonwealth, in the same light as the legal estate in England, and is not to be distinguished, as to the mode of conveying, entailing, and barring entails, from estates strictly legal.

If the warrant, survey, and payment of the purchase money constitute the legal title, it is impossible to comprehend how the commonwealth can, by any act whatever, after she has parted with that title, prejudice, much less extinguish, it."

Upon this view of the law, it appears from the record that the plaintiffs below proved a legal title to the Lewis Walker tract in controversy in Dr. Thomas Ruston. The old purchase voucher No. 12,969, offered in evidence, shows that the purchase money for the six tracts described was paid by one person; and the receipt, being a copy from the old purchase blotter, also No. 12,969 to correspond, shows that the owner of the warrants, by virtue of the payment of the purchase money, was Dr. Ruston.

Counsel for the plaintiffs in error seek to read the abbreviations in that extract from the old purchase blotter as showing that the purchase money had not been paid in full, but we think it otherwise sufficiently appears, not only on the face of the receipt itself, but also from the statement on the margin of the old purchase voucher, that a general receipt had been given, corroborated by the fact that the warrants were actually issued.

A point is made on behalf of the plaintiffs in error that the issue of the warrant cannot be considered as evidence of the payment of the purchase money, because it is dated prior to the date of the receipt taken from the old purchase blotter, the warrant being dated the 26th of November, 1793, and the

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