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Opinion of the Court.
receipt the 14th of June, 1794. This, however, is explained by the practice, known to have existed, that while a warrant was never issued except after the payment of the purchase money, yet it was dated as of the date of the entry in the old purchase voucher, which was the authority given to the surveyor to locate the land, the warrant being subsequently issued so as to relate back to that date.
In Brown v. Galloway, Peters C. C. 291, Mr. Justice Washington said: A warrant for land "according to long and uniform practice, is dated as of the day of the application, although it is retained until the purchase money is paid, when. and not before, it issues to the party." To the same effect is Lewis v. Meredith, 3 Wash. C. C. 81.
The competency and value of the two documents from the old purchase voucher and the old purchase blotter, to prove the fact of the payment of the purchase money, and by whom it was paid, are stated by the Supreme Court of Pennsylvania, in the case of Oliphant v. Ferren, 1 Watts, 57. It is there said that these entries were made by John Keble, who was chief clerk in the Receiver General's Office. Prior to 1823, proof of the payment of the purchase money was made by the production of the original receipt, or the testimony of Keble during his lifetime, and after his death, proof of his handwriting and entry in these books. In 1823, however, by a statute passed during that year, the books themselves, and copies from them, were made prima facie evidence.
The matter is thus explained by Judge Huston in his Essay on the History and Nature of Original Titles to Land in the Province and State of Pennsylvania, Charles Huston, p. 335:
"Even on warrants where money was paid, there was sometimes difficulty as to who was the owner. The warrant, being in a name different from that of the claimant on its face, proved nothing. Where the owner, when he took out his warrant, took a receipt for his purchase money and preserved it, this often decided the question of ownership, and it became usual for a plaintiff to recover on such a receipt, without producing any conveyance from the person whose name was used in the warrant. But where the owner either took no receipt,
Opinion of the Court.
or it was lost or mislaid, the ownership must be proved by other means. The common books of the land office charged the warrantee with the land and credited him with the payment of the money. When it became necessary to pay the money before you got the warrant, and while John Keble was chief clerk in the Receiver General's Office, he kept an account of who paid the money on every warrant sealed in that office. The entry, however, is not easily understood, except by those acquainted with the office. Every application was numbered successively, as they were handed in, from one up to near twenty thousand. Some of these applications were for a single tract, and many for more than one hundred, the last written on a single sheet of paper, or several sheets attached together. On each of these was marked the date when filed, and the name of the man who payed the money always appeared. When you applied for a warrant, there were marks by which you could refer to and find the application, and from the application and its number and date, you could find the entry in John Keble's blotter, and there see who paid the purchase money. The right to many tracts has been ascertained by searching as here mentioned; and a copy of that blotter under seal of office, is now evidence in a court of justice, by a particular act of assembly. So careful was John Keble that if the person who paid the money told him by whom it was sent, that also appeared in the blotter." Vide, also, Campbell v. Galbreath, 1 Watts, 70.
There is nothing in the case of Strimpfler v. Roberts, 18 Penn. St. 283 [S. C. 57 Am. Dec. 606], cited and relied upon by the plaintiffs in error, inconsistent with the foregoing. In that case the plaintiffs in the ejectment were permitted to prove that Benson, under whom they claimed, had paid the purchase money, and they did so by the blotters, vouchers, &c., as in the present instance; and it was admitted and decided in that case that such proof established a prima facie title in them, but one, however, which might be overcome by proof of the fact that Benson, who appeared to have paid the purchase money, had done so, not on his own behalf, but as agent for others; and that fact
Opinion of the Court.
being made to appear, it was held that a patent issued to the assignee of the warrantee conveyed a superior legal title. The conclusion is summed up by Chief Justice Black, in the opinion of the court, as follows (p. 302): "That where a warrant is issued to one person and the purchase money is paid by another, and the patent is afterwards taken out by the nominal warrantee, the right of him who paid the purchase money is gone, unless he takes possession of the land or brings ejectment to recover it within twenty-one years from the date of the warrant; and after that lapse of time he cannot recover, no matter how clearly he may be able to prove that the legal owner was in the beginning a trustee for him. When I say that the suit must be brought within twenty-one years from the date of the warrant, I speak of a case like the pres ent one in which the alleged trust is proved by the naked and solitary fact of the payment of purchase money. Where the cestui que trust has superintended the survey, and paid the officer's fees, or exercised other acts of ownership over the land, the presumption in favor of the trustee would perhaps not begin to arise until he did some act of hostility, such as selling his title, or taking out a patent to himself."
In the present case the evidence admitted was held to establish a prima facie legal title in Dr. Thomas Ruston. It was sufficient to establish that he paid the purchase money, and the other proof in the case showed that he and those who claimed under him exercised acts of ownership over the property until their possession was disturbed violently by the defendants below in the year 1875. The defendants were able to offer nothing in opposition to this, except the patent under which there had been no claim of title for more than seventy-five years, and which was not connected by any proof, other than its own recitals, with the warrant and survey.
In Glass v. Gilbert, 58 Penn. St. 266, it was decided that the doctrine of Strimpfler v. Roberts, 18 Penn. St. 283 [S. C. 57 Am. Dec. 606], and Me Barron v. Glass, 30 Penn. St. 133, that a trust will not be sustained between the warrantee and one who has paid the purchase money after twenty-one years, without possession taken by the claimant, &c., does not apply to a
Opinion of the Court.
stranger to the title of the warrantee. If twenty-one years elapse before interference by a junior survey, the presumption in favor of the first, although a chamber survey, becomes absolute. It follows from the foregoing that the evidence introduced by the plaintiffs below was competent and sufficient to establish in Dr. Ruston a legal title to the lands in question.
The next assignment of error is founded upon the objection made to the admission of the record and proceedings in the Orphans' Court of Philadelphia County, resulting in the sale of the title of Nicholas Le Favre to the Lewis Walker tract to Joseph Brobst, by the deed of May 9, 1837. This objection was, that it appeared from the face of the petition for the sale of the real estate of the decedent that the debts, to pay which it was alleged that the sale was necessary, were barred by the statute of limitations, and that, as a consequence, the Orphans' Court had no jurisdiction to make the order of sale. The course of proceeding taken in the present case, as shown by the transcript, was, 1st, a petition to the Orphans' Court of Philadelphia for authority to sell, that being the court which had jurisdiction of the accounts of the executor; 2d, a petition to the Orphans' Court of Northumberland County, in which the land was situated, an order of sale granted thereon, and sale made, and, as required by the express provisions of the statute of 1832, then in force, the return of the sale made to and confirmed by the same court sitting in the county where the land is situated. It is scarcely necessary to cite authority in support of the proposition that the orders, judgments, and decrees of the Orphans' Court, in a case where it had jurisdiction of the subject-matter, cannot be impeached collaterally; much less is it so in the present case, because the statute of Pennsylvania of March 29, 1832, 2 Brightly's Purdon's Digest, p. 1279, pl. 3, (11th ed.,) provides as follows: "The Orphans' Court is hereby declared to be a court of record, with all the qualities and incidents of a court of record at common law; its proceedings and decrees in all matters within its jurisdiction shall not be reversed or avoided collaterally in any other court; but they shall be liable to reversal or modification or alteration on appeal to the Supreme Court, as hereinafter
Opinion of the Court.
directed." Iddings v. Cairns, 2 Grant (Penn.), 88; Riland v. Eckret, 23 Penn. St. 215. In Dreishner v. Allentown Water Co., 52 Penn. St. 225, 229, Mr. Justice Strong said: "Orphans' Court decrees are doubtless conclusive. They cannot be impeached collaterally."
The next assignment of error is founded upon the refusal of the court to admit as evidence the certified copy of the patent from the Commonwealth of Pennsylvania to Peter Grahl, dated April 12, 1797, with a recital therein of the fact that Lewis Walker, by deed dated November 27, 1793, had conveyed the tract in question to Peter Grahl. The legal title of Thomas Ruston to the premises in dispute, established by the warrant and survey and payment of the purchase money, was perfected by the return made by the deputy surveyor into the land office on February 23, 1795. According to the doctrine established by the authorities already cited, it was not competent for the Commonwealth of Pennsylvania to affect that title by a subsequent patent to a stranger. Peter Grahl, the patentee, was not connected with the title under the warrant and survey, otherwise than by the recital contained in the patent itself, that the tract had been previously conveyed to him by Lewis Walker. Clearly that recital was not evidence against the plaintiffs, for, if the patent could not take effect against them. without it, it could not give any effect to that recital. Their right had already vested prior to the existence of the patent, and the grant to them could not be affected by a subsequent grant to a stranger. That such is the uniform course of decisions in Pennsylvania appears by numerous cases. Penrose v. Griffith, 4 Binney, 231; Maclay v. Work, 5 Binney, 154; Woods v. Wilson, 37 Penn. St. 379; Delaware & Hudson Canal Co. v. Dimock, 47 Penn. St. 393; Urket v. Coryell, 5 W. & S. 60; Balliott v. Bauman, 5 W. & S. 150, 155; Smith v. Vasbinder, 77 Penn. St. 127, 130.
It is next assigned for error that the court below erred in rejecting that portion of the return of William Gray, deputy surveyor, offered to be read in evidence by the defendants below. That portion of the return related to other surveys the same township, returned as belonging to Dr. Ruston, and