Elliott v. Laidig , 1898 Pa. Super. LEXIS 28 ( 1898 )

Opinion by

Beaver, J.,

The able opinion of the trial judge in the court below upon the question of law reserved at the trial, upon which judgment was entered in favor of the defendant non obstante veredicto, is not in any sense “ a new deliverance as to the law governing the character of land warrants which has been so long settled in Pennsylvania,” as alleged by the appellant. In Huston on Land Titles in Pennsylvania, 427, in the case of Lessee of McKinney v. Houser, 2 Smith’s Laws, 190, tried before Judges Smith and Breckinridge, at Mifflin in 1800, which, as Judge Huston says, is a leading case, the court in its charge to the jury said : “ Defendant has a warrant, etc. If his title depended on the descriptive part of this warrant, it would be very vague, for there can be no certainty in calling for a survey of Reuben Haines.” In Hepburn’s Lessee v. Levy, 4 Dallas, 218, it was said: “A vague, undescriptive warrant will not be sufficient to affect the plaintiff’s survey and, although fraud is said to vitiate every transaction, yet the fraud of the deputy surveyor cannot affect the rights of the defendant.” This has been the uniform tenor of all the decisions of the Supreme Court from that day to the present. Fox v. Lyon, 33 Pa. 474, is no exception. In that case “the warrant in the name of John Fox called for four hundred acres of land in Bald Eagle valley, adjoining a survey in the name of Mordecai Massey, on the north, and adjoining land of Fowler & Co. in Franklin township, county of Huntingdon. The warrant in the name of James Fox called for four hundred acres of land adjoining lands this day granted to John Fox, Senior, on the north, in Franklin township, in the county of Huntingdon.” When surveys were made upon these warrants, the John Fox warrant was laid to join Mordecai Massey on the north but was not within one hundred and fifty perches of the Fowler lands, and the James Fox warrant was laid at the east instead of the north of John. In this case the Supreme Court held — Woodward, J., delivering the opinion — that these were shifted warrants. An effort was made by the plaintiffs in that case to show that both warrants belonged to the same person and that, by changing the interior lines of these surveys, as returned to the land office, they could be made to conform to the description contained in the warrants. After considering the claim of the unity of the title, Mr. Justice Woodward says: “We cannot treat the warrants of 1794 as belonging to one man and the eight hundred acres of land covered by them as his exclusive property. The proofs in the case do not permit us to do so, whilst the presumptions which the law is called to make in behalf of paper titles compels us to regard these warrants as separate properties belonging originally to the respective owners whose names they bear. So regarding them, it appears that they were not located according to their calls and were, consequently, returned as shifted. warrants, the title to which must be held to have originated when the returns were accepted. But before that time that part of the land covered by them which is in controversy in this state had been taken away by the warrants and surveys under which the defendants claim and, therefore, the plaintiffs had no right to a verdict.”

The warrant under which the plaintiff’s survey was made calls for “ one hundred acres of land adjoining lands this day granted to them in Dublin Township in the county of Bedford.” This is almost identical with the description in McKinney v. Houser, supra, and lacking the precision of the description of the James Fox warrant, in Fox v. Lyon, supra, as being “adjoining lands this day granted to John' Fox, Senior, on the north.” It is admitted that the land described as this day granted to Eaekman & Faile in Dublin township was, as located and surveyed, a tract having six different sides. So far, therefore, as the mere description was concerned, a location on any one of the six sides would have answered its requirements and this, of course, answers the entire argument of the plaintiff that the warrant under which he claims was a descriptive warrant.

It is scarcely necessary to say that a warrant is descriptive solely by reason of the description which is contained therein and not because of anjr extrinsic facts or circumstances. The fact that the land on all sides of the original Eaekman & Faile’s survey had been appropriated by previous surveys, leaving but one side upon which the warrant for one hundred acres could be located, so as not to interfere with actual surveys upon the ground, does not help the plaintiff’s contention that the warrant was descriptive. The description contained in it was vague and uncertain and, it being conceded that the defendant’s survey was older than that of the plaintiff, judgment was properly entered in the court below, upon the reserved point, for the defendant, non obstante veredicto.

Judgment affirmed.