Perkins v. Gay , 3 Serg. & Rawle 327 ( 1817 )

The opinion of the Court was delivered by

Gibson J.

By the act of the 4th April, 1799, it is made the duty of the commissioners to ascertain all the rights or lots within the seventeen townships, that were occupied or acquired by Connecticut claimants, and to make out certificates therefor, “ with a draught of the survey thereto an- “ nexed.” It is then provided, that on application of the original settlers or their legal representatives, and security being given for the purchase money, patents “ for the lands “so certified,” shall issue from the proper office.' It is very clear, that the patent following the courses and distances of the survey returned by the commissioners, vests no legal title in lands not included in that survey. But, it having been the duty of the commissionei-s in making surveys, to follow the boundaries established under the grants of the Susquehannah company, as near as the same could be ascertained, it is supposed where a departure occurred through mistake, the party will have at least an equity in the part of the original tract or lot, excluded from his survey. At first view, this does not appear devoid of reason ; particularly, as it has been adjudged in Carkhuff v. Anderson, 3 Binn. 4, that the patent does not vest a new right but confirms an old one, the Connecticut title being the substratum on which that under Pennsylvania is founded. If the party thus losing part of his lot were in no default; as in case of accident or mistake in not recognising alterations of the original lines by the agreement of the parties ; especially if the omission arose from trick on the part of him who would be benefited by it, perhaps the latter would be considered as a trustee as to the land thus unjustly acquired. On the other hand, it was clearly intended, that questions of boundary as well as questions of title between the Connecticut claimants, should be submitted to the decision of the commissioners. By the ninth section of the act above cited, the commissioners are empowered “ to appoint a surveyor or surveyors, and to em- “ ploy chain carriers and markers, for the purpose of such “ surveys as they shall judge necessary, and the said surveyors, chain carriers, and markers, shall be sworn, &c. “ and all surveys made by direction of the said commission- “ ers, shall be by them returned to the office of the surveyor “ generaland by the eleventh section it is enacted, “ that “ in case of dispute between the Connecticut claimants, they « may elect to have the same decided by the said commis- “ sioners, or appeal before such decision to the Court of « Common Pleas of the proper county,” and a certificate of the clerk of the commissioners or the prothonotary of the Court, certifying in whose favour the decision was had, is made evidence for the purpose of obtaining the patent. There can be no doubt, but the provisions of this last section extend, as well to disputes about boundary, as to those between different claimants to a whole lot. Now the duty of the commissioners under the act, was substantially a proceeding in rent, of which all parties interested were to take notice. All the lots within the seventeen townships, settled within the true intent and meaning of the act, by Connecticut claimants, antecedent to the decree of Trenton, were subjected to their jurisdiction; and it was their business to make inquisition not only of the true ownership of each, agreeably to the rules and regulations of the Susquehannah company, but also of their limits and boundaries, by “ ascer«taining the lots.” Hence the necessity of employing chain carriers, surveyors, and markers. It was, therefore, the business of each claimant for whom a survey was to be made, to give the surveyor all the information that could be obtained as to the ancient boundary, and having done so, if he were dissatisfied with the survey made b.y the surveyor, he should have complained to the commissioners or have taken an appeal to the Court of Common Pleas. Here the claimant has neglected to do so, and the survey must be considered as having been acquiesced in. It is too late to complain of a departure' from the ancient boundary, after the party has acknowledged and sanctioned the lines established by the commissioners, by taking out a patent conformable to those lines. The parties had an opportunity of being heard, and, therefore, stand in the same situation as if they had been actually heard; the question being virtually decided by the survey having been unappealed from, and acted on by the commissioners, whose authority in this particular was judicial. As to every thing they did decide, their certificate is final and conclusive, and not now to be controverted: it is in the nature of a judgment of a Court of competent jurisdiction directly on the point, and conclusive on the same point, when brought incidentally into view in another proceeding. We are, therefore, of opinion, the Court of Common Pleas did not err in directing the jury, that the lines, established on the ground, by the surveyor of the commissioners, if not subsequently altered by the acts of the parties, ought to prevail.

But the defendant gave evidence of the establishment of a consentable line, as a permanent boundary, which he contended was fixed by him and Jackson, under whom the plaintiff claims. This boundary leaves the land to the defendant. Whether the parties ever agreed to it, and if they did, under what circumstances, were matters proper for the decision of the jury ; what we have to do with is' the direction of the Court in matters of law. It was laid down in general terms, that if, at the time of an agreement to establish a consentable line, as we technically call it, the parties labour under a mistake as to their respective rights, they will not lie bound. To this doctrine I do not assent; no boundary of the sort could in any case prevail, if it were law, for the consideration of the agreement, is, in ninety-nine cases out of a hundred, the settlement of a dispute arising from ignorance and misapprehension of right on both sides. If, to prevent irritation until the true line be ascertained, a temporary boundary, predicated on the avowed ignorance of the parties, be established, to a full understanding that it is not to be permanent; there is no doubt it will not have effect beyond the terms of the agreement. So if the parties, from misapprehension, adjust their fences, and exercise acts of ownership, in conformity with a line which turns out not to be the true boundary; or permission be ignorantly given to place a fence on the land of the party, this will not amount to an agreement, or be binding as the assent of the parties; and I agree it is a principle of equity, that the parties to an agreement must be acquainted with the extent of their rights and the nature of the information they can call for respecting them, else they will not be bound. The reason is, that they proceed under an idea that the fact which is the inducement to the agreement, is in a particular way, and give their assent, not absolutely, but on conditions that áre falsified by the event. Turner v. Turner, 2 Ch. Rep. 81. Bingham v. Bingham, 1 Vez. 126. Gee v. Spenser, 1 Vern. 32. Pusey v. Desbouverie, 3 P. Wms. 316. Lansdown v. Lansdown, Mosely, 364. Cocking v. Pratt, 400. But where-the parties treat upon the basis that the fact which is the subject of the agreement is doubtful, and the consequent risk each is to encounter ifi taken into consideration in the stipulations assented to, the contract will be valid notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party, that would affect any other contract. Can v. Can, 1 P. Wins. 726. Pullen v. Ready, 1 Atk. 587. Jones v. Randall, Cowp. 37. Every wager, as well as every policy of insurance, and every compromise of a doubtful right, depends on this principle. The establishment of this kind of boundary is always a matter of compromise, in which each party supposes he gives up for the sake of peace something to which in strict justice he is entitled. There is an express mutual abandonment of their former rights, upon an agreement, that whether they be good or whether they be bad, neither is to recur to them on any pretence whatever, or claim any thing that he does not derive from the terms of the agreement. Each' takes his chance of obtaining an equivalent for every thing he relinquishes, and if the event turn out contrary to his expectations, so much the worse for him. If there be no intention of fraud, no unfair dealing, and neither party has more knowledge of the fact misconceived, than the other had, the contract will bind. I regret being obliged to reverse a judgment on account of an inadvertent expression which may have had no effect on the verdict; but on a bill of exceptions we have no discretion. The judgment must be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.

CASES m THE SUPREME COURT QT PENNSYLVANIA. Western District, SEPTEMBER TERM, 1817.