Rush v. Barr , 1 Watts 110 ( 1832 )

The opinion of the Court was delivered by

Huston, J.

This case differs in its features from any heretofore brought from that portion of this state, which unfortunately has been so productive of lawsuits, and the settlement of which has been so retarded by contests as to settlers.

Among the evils which have arisen from those contests, one, and not the least, is the destruction or perversion of moral principle, which is too often disclosed. Those who have a sense of the obligations of law and of religion, who would shudder at being told they were acting without regard to their duty to their neighbour, and in opposition to the commands of their God : men, who, in every part of their intercourse with society, endeavour to act with scrupulous honesty, too often seem to thinktheties which bind them in all other capes, have no obligatory force in their transactions with respect to the titles to the land on which they live. Different opinions and different decisionsby our supreme court and the supreme court of the United States, for a long time, made it doubtful what, tinder certain circumstances, was or was not a good title ; every individual next formed his own opinion, and with many men, all this resulted in a total disregard to any and every contract made respecting the land. I hope the time is not far distant when the titles will be settled, and the plain rules of law and of moral justice, will again be acknowledged in words and in practice.

The same evil, and something worse, has occurred in other places, and has disappeared; has given way to reflection and a sense of duty and right.

Before I come to the contracts of the parties, I will notice the situation of the plaintiff and his claim, and of the defendant, at the time of the contract by the plaintiff and the defendant. I mean those under whom the plaintiff and defendant claim.

At the date of the act of 3d April 1792, all agreed as to its construction ; and this is abundant evidence that those who took warrants were as strongly impressed with the necessity of making the settlement, as those who claimed only by actual settlement. The continuance of Indian hostilities, and the impossibility of procuring forty thousand actual settlers to go into a wilderness within two years, set ingenuity at work to evade the law. And among the strange effects of this, was the arrangement by.the officers of the land office, by which they undertook to dispense with the provisions of the law, and to grant patents on what were called prevention certificates ; but until the decision of the supreme court in The Commonwealth v. Coxe, many supposed these titles good.

Not to be behind the warrantees in attempts to evade the law, the settlers, as soon as a few logs were cut, or a few trees deadened, claimed to have as much right as if a house had been built, and a family was residing in it. And as many of these went to that country with the intention of making a bona fide settlement according to the law, and were discouraged by the difficulty of procuring provisions in a wilderness, where all wanted to buy food, and nobody had any to sell, it soon happened that many wanted to sell their improvements. Another class, each of whom had commenced more than one settlement, wished to sell all, or all but one. Purchasers were found; for we have seen times when every body would buy land,- and times when nobody would buy land, at least, not at a fair price.

The plaintiff seems to have purchased a dozen of these improvements ; and as each is from a different person, we may take it, from men who began bona fide to settle one tract, but had become discouraged. Although the deputy surveyor ought not to have made a survey for any one who had no warrant until he had made an actual settlement, that is, until, at, least, a person was residing thereon as a home, yet surveys were made as soon as a few days’ work had been done, and for men whose residence and family were many miles distant ; and on these deadenings, not actual settlements and surveys, the officers of the land office received the purchase money, and warrants of acceptance issued, and perhaps, in some cases, patents. And on the principle of prevention patents to warrantees, this was right; an actual settler might be prevented from completing what he had begun, as well as a warrantee. The warrants of acceptance, which were one step towards a patent, could be no. better than a patent; that is, they were in thems.elves, and unsupported by any thing else, of no avail, and no suit would be supported on them ; but did not preclude the owner from showing that he had actually made the settlement according to law. The one in question, was obtained on the 7th of August 1795. The settlement of J. Clark, which it recites, had then begun, during the Indian hostilities; and Clark, or whoever came under him, would have had two years from Wayne’s treaty, within which to make it his actual residence, and clear, and fence; and cultivate jt, according to law ; for in this country, as well as other parts of the state, he tvho had begun bona fide, was not required to stay the day and night, until bis family was brought on ; if he persevered in his improvement with due and reasonable diligence, he was protected. M’Call then came to this country in 1796, or before: he was on this land in 1796, claiming it on Clark’s improvement, and he found Wason there, who also had commenced an improvement, but after M’Call’s warrant of acceptance, and not within the lines of this tract. An agreement is made between M’Call and Wason, which recites, that Clark had made improvement on this tract, and a survey had been made by the deputy surveyor, and the purchase money paid by M’Call, and a warrant of acceptance to him; but that “ no patent could issue, until the conditions of settlement, residence and improvement, directed and imposed on the lands, by act of 3d April 1792, shall have been completely performed and fulfilledand then goes on to state, “that M’Call had that day sold one hundred and twenty-five acres of the land, &c., being part of said survey to 'William Wason, who agrees and binds himself to perform and fulfil the settlement, residence and improvement required by the said act, so that a patent may issue for the whole tract. And then Wason binds and obligates himself to do all required by the act of assembly, in the very words of the act.

Now, let us pause and review this transaction. M’Call did not come to Wason and tell him, I have a good and complete title, and thus induce him to contract; he tells him exactly the truth, for I take it, that the recital, that Clark had commenced an improvement, is to be taken as strictly true between those parties at this time. What both parties state in argument to be the state qf facts, is as much the statement of one as the other. Whether the work on the ground showed that somebody had been there before Wason, we do not know, but Wason might know by inspection; and as he resisted the Barrs, would have resisted M’Call. But further, if no work had been done by Clark, the survey by the deputy surveyor, Gapin, for Clark, is, after thirty years, evidence of at least work done by Clark. All the rest of the statement of what M’Call had done, is proved by exhibits in the cause. The copy of the warrant of acceptance offered in evidence, was certified from the surveyor-general’s office in May 1796, and was probably then exhibited.

From 1795 until 1796, there was no conclusive proof of abandonment by Clark.' M’Call might then go on and complete the settlement, and had until the 22d of December 1797, in which to do it. It is distinctly understood and stated, that the title was inceptive, and would not be good unless followed up according to the directions of the act; and in consideration of one hundred and twenty-five acres, Wason agrees to do all the act requires, so that a patent may issue for the whole survey. It has been followed up, and the actual settlement made and continued five years, and a patent could have been got on that settlement, and on the money paid by M’Call; for although the warrant of acceptance is, I think, informal, yet as he had paid the purchase money for this tract, and had procured the actual settlement to be made within the time, a patent would have regularly issued for the use oí M’Call and Wason, as their vendees, on that payment of money, though informally paid.

I repeat, that if M’Call had undertaken to sell a good title, or that he himself would procure a good title, when in fact he had no title, and could not procure one without an actual settlement, the law might on these facts have been, that the settlement made by Wason would have enured to his own use, and not for his own and M’Call’s; but the bargain was very different, and was a lawful one, and ought to bind both parties.

If M’Call had not settled or procured some one to settle according to law, his warrant of acceptance and his money paid, would not have availed him; but he did, or procured another to do all the law required, within the time required, and the question, shall that other take all, or shall he be bound by his bargain, and take one hundred and twenty-five acres, leaving the residue for M’Call.

On the 17th of August 1796, only a few days after his agreement with M’Call,i Wason conveyed to Herron, who bound himself to complete the settlement agreeably to Wason’s contract with M’Call. There is something in this not explained on our paper book, it is a contract to sell two hundred and fifty acres, which he, Wason, had bought from M’Call; the case furnishes no evidence of his right to that quantity; but probably there was some written or parol agreement which we have not. Herron moved his family on next year, we find his nephew Witherson on, and three or four acres cleared and cultivated. In 1798, Thomas Barr and Robert M’Dowell came there—they had begun a cabin in 1796, and been absent two years. They bought from Herron, moved on and continued ; and here we meet with what induced the reflections with which I commenced. It is in full proof by parol, that they bought from Herron, and - were to give him the same piece Herron gave Wason, and that they gave a note for the balance of the purchase money. When another person wanted to take part of the land, they kept him off by M’Call’s title, and Wason and Herron’s improvement, which they said they had purchased; but the only written evidence of title was in Ihese words, signed by M’Dowell and Barr: “ be it remembered that we, Robert M’Dowell and Thomas Barr, do promise and covenant with Thomas Herron, to maintain a settlement according to law, where they began their settlement and now lives, unless prevented by law. Witness our hands and seals, 26th May 1798.”

The last witness to this paper proved that he wras present at the bargain, from begining to end—at the conclusion of which they entered into the above agreement. That he understood from the declarations and conversation of all parties, that Barr and M’Dowell were to keep Herron clear of M’Call, and were to continue the settlement Herron had bound himself to maintain.

Now, from the words of the above agreement, it would seem, it was their own settlement, commenced in 1796, which they bound themselves to continue.

These persons, in 1803, took a warrant in the name of Robert M’Dowell and a patent. Robert M’Dowell died in 1810, and left his half to Barr’s children, and some other nephews of his.

The possession was continued regularly until M’Dowell’s death, and Barr continued on for about three or four years after. Barr became indebted, and in 1819, all the right of Thomas Barr to his interest in the tract of land, was levied on, and sold to Monteeth. Barr did not live on it then—he is since dead. When the defendant, his- widow, went on it, it does hot appear. This suit was brought to March term 1828.

It also was shown that an ejectment was brought in 1817, by Jl. M’Call against Thomas Barr, which resulted in judgment for the defendant.

The errors assigned are :

1. The court erred in rejecting the warrant of acceptance which was offered in evidence. At first, I thought the court right in this particular, but a minute examination of the dates and of the several agreements, satisfies me that it ought to have been admitted. It would not have been evidence as a ground of title between parties who never had privity with each other, not against an actual settler who, after the 22d of December 1797, entered on the land as vacant, and adverse to the warrant, unless along with it the defendant had shown some actual settlement connected with it; but it was evidence to shew that the statement of M’Call in his agreement with Wason was true, and if the defendant had acted fairly, it, or the payment of the purchase money on it, connected with the actual settlementof the defendant would haveavailed to procure a good title.

The judge was struck, as I have been, by the appearance of iniquity in the attempt of the defendants to get clear of their contract, only he calls it by the softer name of management. If the jury should find that the parol evidence is true as to Barr and M’Dowell purchasing from Herron, and that their agreement was put in its present form with an unfair design, the plaintiff would be entitled to recover an undivided part of the tract, containing in all above one hundred and twenty-five acres—I say, would be, unless the statute of limitations bars him. As to abandonment, I see no evidence of it; the land was in possession of the part owner under a written agreement. It does not appear that any proof of the settlement having been completed was offered to M’Call, or any call on him to take out a patent; by the agreement the possession was to remain with Wason or those claiming under him. The fact that Barr and M’Dowell claimed adversely was not of record in the county; in fact if Mr Ross believed they did not so claim in 1803 or 1804, the warrant in 1803 to M’Dowell was an act inconsistent with the agreement with M’Call, but if that warrant called for a settlement made by M’Dowell, the reading of it would give no notice that it was for a tract settled first by Clark and then Wason. The statute of limitations is a most useful one, and ought not lightly to be frittered away; but there are cases to which it does not apply. Whenever the legal title is in one, and the real interest in another, these form but one title, and thé statute does not run between them until the trustee disclaims and acts adversely to the cestui que trust: so of landlord and tenant; the possession of the tenant is that of the landlord, who reposes safely on the effect of his lease until the tenant refuses to pay rent, disclaims the right of his landlord, and openly sets him at defiance. And so in all cases where two persons have each an interest in a tract of land, of such kind that both their interests form but one title, and by their agreement one is to possess for his own use and the use of the other. In such cases the statute does not run until he in possession disclaims the right and interest of the other— denies his right and refuses possession, and such disclaimer and denial must be such that the other has notice of it. It is not sufficient that it is denied secretly, or an agreement inconsistent with it is made and concealed. Fraud prevents the statute from running; it is well settled that the statute does not run until the discovery of the fraud. After the discovery of the facts imputed as fraud, it does run. Kane v. Bloodgood, 7 Johns. Chan. 90, 122, and cases there cited.

By the agreement between M’Call and Wason, the possession of Wason was to be the possession of M’Call. The latter could then repose in safety. The possession was to continue so till a certain time after, when a patent was to be obtained, and there was no exact agreement when it was to be divided. Wason conveyed to Herron in good faith, and the latter covenanted to fulfil the agreement with M’Call. Whether Herron joined in the plan to defraud M’Call of his interest, does not appear, but the defendant, if the witnesses be believed, had full notice of M’Call’s interest, and defended under it once when it suited them; at the same time, by agreeing to protect Herron against M’Call, it would seem a deliberate plan was formed, which was any thing but honest. If the jury, for it must be left to them, believe there was an intention unfairly to drop the contract with M’Call, and set up and hold under the merely colourable commencement made by the Barrs in 1796, and which had been abandoned two years, their conduct was fraudulent as to M’Call; they were, in honesty, in conscience and in law, as much bound to give him his share of the land as Wason or Herron was, and the statute of limitations does not begin to protect them until M’Call knew of this conduct and intention of theirs. The jury will ascertain when M’Call had knowledge of this unfair conduct, and if this suit was not commenced until twenty-one years after he had knowledge of these facts, then the statute of limitations bars the plaintiff; if twenty-one years had not expired from the time he had notice of such fraudulent and adverse act, it does not bar the plaintiff. The effect.of fraud on the running of the statute of limitations did not occur to the court of common pleas in the hurry of the trial.

Judgment reversed, and a venire facias de novo awarded.