Sweeney v. Sheffield , 1 Pa. 463 ( 1845 )

The opinion of the court was delivered by

Justice Burnside.

This was an ejectment for lands on the west side of the Alleghany river, in the county of Warren.

The evidence not being returned with the record, I have endeavoured to obtain the material facts from the charge of the court, and the arguments which the learned counsel were pleased to furnish. The title of the plaintiffs commenced with an improvement and settlement by James Phillis, in 1817, and continued until 1824 or 1825.

6th June, 1825, application of Thomas Irvine for a vacating warrant. 14th June, 1825, vacating warrant issued to Thomas Irvine. 22d July, 1825, survey. 11th November, 1825, Thomas Irvine died, and the plaintiffs were his heirs or representatives.

■ Defendants’ title. — 10th April, 1793, warrant to Kirk Betz, survey duly returned thereon. John Miller settled on the land with his family in 1802, cleared about eight acres, and was proved to have continued, and was living there in 1805. After that period it was not known where he resided, but it was in evidence he was not living on the land in 1809. When he left it did not appear. Wilhelm Willinke and others were the owners of Kirk Betz, and they conveyed by deed to Peck and Shattuck, who brought an ejectment against James Phillis for the Betz tract, and part of an adjoining tract, No. 22. 4th June, 1825, tried, and verdict and judgment for the- plaintiff. 6th June, 1825, hab. facias possessionem issued, which was returned by the sheriff,-executed by putting the plaintiff in possession of No. 22, defendants having abandoned No. 11, warranted in the name of Betz. Alias hab. facias issued on the 6th May, 1828, returned executed, Joseph Sheffield, one of the defendants in the present writ, receiving possession under the plaintiff from the sheriff. In 1828, Shattuck and Peck reconveyed the land back to Wilhelm Willinke and others. The defendants in this ejectment claimed under Willinke and others by deeds of conveyance subsequent to that time.

There was no evidence that the persons removed by the sheriff in 1828 had any connection with the plaintiff. It further appeared, that Joseph Sheffield had cleared more than eight acres during the first five years of his residence on the land, and had continued to reside on the tract ever since, extending his clearing and making valuable improvements. Immediately after Shattuck and Peck recovered in the ejectment, James Phillis removed from the land, and by parol gave his claim to Thomas Irvine. No consideration appears, nor was a deed made until a few days before the trial of this ejectment. Neither Irvine, or any person for him, or claiming under his warrant, ever entered or obtained possession of the premises.

Vacating warrants were authorized in certain cases, and issued in pursuance of the 9th section of the unfortunate act of the 3d of April, 1792. That section provides that ££ no warrant or survey to be issued or made in pursuance of this act for lands lying north and west of the rivers Ohio and Alleghany, and Connewango creek, shall vest any title in or to the lands therein mentioned, unless tire grantee has, prior to the date of such warrant made, or claimed to be made, or shall within the space of two years next, after the date of the same, make or cause to be made an actual settlement thereon, by clearing, fencing, and cultivating at least two acres for every hundred acres contained in one survey, erect thereon a messuage for the habitation of man, and residing thereon for the space of five years next following his first settling of the same, if he or she shall so long live; and in default of such actual settlement and residence, it shall and may be lawful to and for this Commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrant, and that actual settlement and residence have not been made in pursuance thereof and so ofien as default shall be made, for the time and in the manner aforesaid; which new grants shall be made, and subject to all and every the regulations contained in this act; provided always, that if any such actual settler, or any grantee in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavour to make such actual settlement as aforesaid, then, and in such case, he and his heirs shall be entitled to have and to hold the said lands in the same manner as if the actual settlement had been made and continued.”

The object of the legislature -was to settle the country, and to form a barrier against the Indians. Was Irvine, who obtained the vacating warrant for a settled and improved tract of land, an actual settler ? Or did Irvine, or any person claiming under him, ever enter on the land in question ? Under this much contested ninth section, I hold it to be the duty of the person who obtains a vacating warrant, or those claiming the benefit of the warrant, to enter upon the land and reside thereon, before the warrant would give him title. To enable the owner to do so, tire law contemplated that the vacating warrant should issue for vacant and unoccupied land, unless when a settler was in actual possession ; and then he was bound to continue the possession, to give efficacy and effect to the warrant. It could not issue, when the land was occupied adversely to the person obtaining the vacating warrant. The object of the vacating warrant was to place a settler on the land. Its views were prospective as to settlement. If it was not so, a false construction would be given to the act of the legislature, and a door opened to injustice, perjury, and fraud. When an ejectment was brought by a person owning the original warrant and survey, against an improver, it -would be the interest of the improver to loose the land, turn out, give his improvement to a relative, or his lawyer; who then obtains a vacating warrant, and lies by short of the period of twenty-one years, then brings an ejectment, and attaches the warrant to the' trespass and settlement, and recovers the land with all its improvements. This vacating warrant, according to the argument, is to heal all trespasses; a perfect panacea not contemplated by the act of 1792. That act allows the vacating warrant only, when the land was not improved. Possession must be continued, and taken in pursuance of a vacating warrant, to enable the owner to hold the tract. The plaintiffs further complain, that the Common Pleas instructed the jury, that Miller’s settlement on the land was presumed to be made under the warrant, until the contrary was shown. So has the law ever been held. The benign principle of justice is, that the possession is presumed to be in accordance with the title, and not in hostility to it. Pope v. Lodge, 16 Serg. & Rawle, 229; Johns. Rep. 216.

The entry is authorized for a condition broken. That condition is settlement, and the condition is never broken if the tract is seated. The vacating warrant is substituted for the entry of the Commonwealth. This tract was seated, the state had no right to enter. She had granted the lands. Her conditions were complied with, and the vacating warrant was utterly void. I deem it unnecessary to review the different acts of Assembly, passed for the settlement 'of the unfortunate litigation arising under the act of 1792. The tract was seated, and the great object of the law was accomplished.

The judgment is affirmed.