[Marlatt v Silk.]

surreptitious titles which those terms rendered more imminent; not to waive all scrutiny and submit to fraud and imposition where it might be detected. Such a construction would, in all cases, have made the certificate conclusive evidence of the facts stated in it; which it was held in Smith v. Brown, 1 Yeates, 516, and the Lessee of Hyde v. Torrence, 2 Yeates, 445, not to be. In the latter it was declared that a Pennsylvania claimant may show fraud, mistake or trust; or that the Virginia claimant was not in the country before the 1st of January, 1778-the point of time limited for the commencement of his settlement.

The following is a true history of the whole controversy:

1779, August 31. Compact between Virginia and Pennsylvania entered into.

1780, June 23. Ratified by Virginia with conditions annexed. 1780, September 23. Ratified by Pennsylvania, absolutely; with acceptance of the annexed condition.

The compact was closed, and took effect on the 23d of September,

1780.

Both titles were then conclusively settled.-The states might compensate losers; but could not alter the right.

At that epoch the title of Gen. Hand stood thus:

Warrant in name of Edward Hand for three hundred acres, dated the 24th of November, 1773, surveyed the 21st of January, 1778, three hundred and eighty-nine acres. Warrant in the name of John Elder for three hundred acres, dated the 27th of November, 1773, surveyed the 21st of January, 1778, three hundred and seventy-one Three Virginia certificates for four hundred acres each, in right of these settlements, made in 1770. All regularly entered with the Virginia surveyor, and transcribed in his entry book.

acres.

The title of all his lands in that disputed region was effectually protected against both states. When the compact was finally closed, Gen. Hand, on the faith of it, had all his surveys returned into the land office and accepted. The purchase-money and surveying and office fees paid, exceeding (on the two tracts) 260 dollars; and on the 9th of March, 1782, patents issued on both surveys, and actual possession of both tracts by his tenants occupying the land.

At this period of time there was no caveat by Watson, or any other person; there was no dispute, no complaint.

[Marlatt v. Silk.]

Thomas Watson, in 1780, April 25, obtained a Virginia certificate, for four hundred acres, in right of his settlement made in the year 1772. His cabin and improvement were distant half a mile from the nearest part of any of Hand's surveys. No lines run or marked. No request made after the compact, to the surveyor in Pennsylvania to inclose his claim until the 1st of November, 1786, when he caused a survey to be made and returned to the land office. But it was here found to interfere with the patented surveys of other persons, and returned to him to be corrected; on the 17th of March, 1791, he presented the corrected re-survey, and obtained a patent for two hundred and seventy-three acres, "corrected and altered agreeably to a request of the surveyor-general." [Hand's patent was dated the 9th of March, 1782. That such proceeding in Pennsylvania was illegal and void, see 13 S. & R. 23.] On this false suggestion he obtained his patent which is now the basis of the plaintiff's title. He then sold all the survey outside of Hand's land, and removed from his house and improvement, and took possession of the cabin and land now in dispute.

Soon afterwards West Elliot set up a claim to these forty-seven acres, and gave notice that he would prosecute a suit against Watson unless he would give up the land to him.

In the autumn of 1794, Gen. Hand came with the army to Pittsburg, and went out to visit his lands. Soon after his return to town, he and Watson came to the house of Gen. Gibson, where they stated that Hand had agreed to protect Watson against Elliot, and let him hold the forty-seven acres, for his lifetime, he (Watson) paying yearly a bushel of Indian corn; and desired Gibson to defend him, and get counsel for him when necessary. To, this Watson agreed, and several times afterwards called on Gibson to explain the threats used by Elliot, but Gibson encouraged him to persevere and hold on. He did continue on the land during his life. Nor is it known that he at any time expressed any dissatisfaction at this arrangement.

After his death speculators purchased the supposed rights of his children, and employed counsel to bring and prosecute suits to recover these forty-seven acres, which are now the subject of controversy.

Gen. Hand's titles under Pennsylvania and Virginia are clearly the eldest, and under the compact must prevail.

It is an unalterable regulation, founded in equity, to preserve the honour and good faith of both states as far as possible; each had VOL. XI.-C

[Marlatt v. Silk.]

made grants for the same lands; let the good old rule prevail "prior in tempore, potior est in jure." Watson was culpably negligent; he never indicated his claim or boundary until he made an erroneous survey, the 1st of November, 1786, four years after Hand's patents had been issued; five years afterwards he sends an amended survey to the office, falsely pretending he had corrected his errors and thrown out the interfering patented lands. This trick would, of itself, postpone and preclude him, and all claiming under him, forever, from sustaining any suit in a court of justice Besides this, he surrendered to Gen. Hand all his claim to the premises, for a life estate which he enjoyed and with which he was satisfied as long as he lived; and the plaintiffs, for a trifle, have brought up the claim that he had ceased to assert and was too honest to revive.

Hand's lands were patented the 9th of March, 1782; Watson's the 17th of March, 1791, nine years afterwards. Watson's assignees being now plaintiffs, and holding under the junior grant; cannot maintain an ejectment, or recover in a court of the United States against the eldest patent.

More especially must Watson's patent fail, when a solemn compact has established the relative efficacy of each, and expressly stipulated that all conflicting titles in the disputed territory shall, without exception, be governed by this rule.

A survey breaking into and including patented land, is void; was always illegal and inoperative in Pennsylvania. 13 Sergeant and Rawle, 23.

Upon the whole, therefore, of this record, the defendants in error submit with great confidence that the judgment of the district court of the United States will be affirmed with costs.

Mr. Justice BARBOUR delivered the opinion of the Court.

This is a writ of error to the district court of the United States, for the western district of Pennsylvania, in an action of ejectment, in which the plaintiff in error was plaintiff in the court below; and in which judgment was given for the defendant in that court. It comes up upon two bills of exception, taken by the plaintiff in error to the opinion of the court, at the trial: the one, in relation to the admission of certain evidence which he alleges to have been improperly received; the other, to the ruling of the court, upon several points of law, in its charge to the jury.

We think it unnecessary to discuss any of these points but one,

[Marlatt v. Silk.]

which we consider decisive of the case. And that is the relative priority of the respective rights under which the parties claim.

The facts of the case are these. Thomas Watson, under whom the plaintiff in error claims, on the 25th of April, 1780, obtained from certain commissioners of Virginia, a certificate entitling him to four hundred acres of land, by virtue of an act of the assembly of Virginia, passed in May, 1779; the fourth section of which, after reciting that great numbers of people have settled in the country, upon the western waters, upon waste and unappropriated lands, for which. they have been hitherto prevented from suing out patents, or obtaining legal titles, &c., enacts, "That all persons, who, at any time before the first day of January, in the year one thousand seven hundred and seventy-eight, have really and bona fide settled themselves, or their families, or at his, her, or their charges have settled others, upon any waste, or unappropriated lands, on the said western waters, to which no other person hath any legal right or claim, shall be allowed, for every family so settled, four hundred acres of land, or such smaller quantity as the party chooses to include such settlement." This certificate was granted in right of a settlement which had been made by Watson, in the year 1772. His evidence of right under Virginia was subsequently transferred to the land office of Pennsylvania, (the land having, under a compact between that state and Virginia, hereafter more particularly noticed, been ascertained to be within the limits of Pennsylvania;) and on the 1st of November, 1786, a survey of his claim was made and returned to the land office of the latter state, and a patent issued thereon by that state in the year 1791, including his settlement made in 1772, and including the land in controversy.

The defendants claim under Edward Hand, who, by virtue of two land warrants, granted by Pennsylvania, the one for three hundred acres, dated the 24th of November, 1773, the other for the same quantity, dated the 27th of November, 1773; caused surveys to be made on both on the 21st of January, 1778; and on the 9th of March, 1782, obtained patents on both surveys, embracing the land in controversy.

Both Pennsylvania and Virginia having claimed the territory, of which the land in controversy is a part, as being within their limits; the dispute was finally adjusted by a compact made between them, which was ratified by Virginia on the 23d of June, 1780, with certain conditions annexed; and absolutely by Pennsylvania, on the 23d

[Marlatt Silk.]
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of September, 1780, with an acceptance of the conditions annexed by Virginia.

That compact, inter alia, contains the following stipulation: "That the private property and rights of all persons, acquired under, founded on, or recognised by the laws of either country, previous to the date hereof, be secured and confirmed to them, although they should be found to fall within the other, and that in disputes thereon, preference shall be given to the elder, or prior right, whichever of the said states the same shall have been acquired under; such persons paying to the states, in whose boundary their land shall be included, the same purchase, or consideration-money, which would have been due from them to the state under which they claimed the right."

The rights of the parties must be decided by the true construction of this stipulation, as applied to the foregoing facts of the case. What is that construction? In the first place it is declared, that the property and rights of all persons, acquired under, founded on, or recognised by the laws of either country, previous to the date of the compact, (that is, the year 1780) shall be secured and confirmed to them. The act of Virginia of May, 1779, before cited, is in point of chronology previous to the date of the compact. Is not the settlement of Watson, made in 1772, recognised by that act? It is in explicit terms, because the act makes an allowance of four hundred acres of land to all those who shall have bona fide made a settlement on waste and unappropriated land, before the first of January, 1778; and it has been seen that Watson's settlement was made in 1772. What was the motive which induced the legislature of Virginia to make this allowance? We find it declared in the preamble to the fourth section of the act of May, 1779: it was, that persons who had made settlements, had been prevented from suing out patents, or obtaining legal titles, by the king of Great Britain's proclamations, or instructions to his governors, or by the then late change of government, and the then present war having delayed, until that time, the opening of a land office, and the establishment of any certain terms for granting lands. And what was the consideration, we do not mean pecuniary, but valuable, on which the allowance was founded? The same preamble informs us, that it consisted in the justice of making some compensation for the charge and risque which the settlers had incurred in making their settlements.

It is apparent, then, that the legislature did not pass the law in