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SMITH, ex. dem. PENN, Defendant in Error.

The act of Pennsylvania, of 1779, “for vesting the estates of the late

proprietaries of Pennsylvania, in this Commonwealth," did not con fiscate lands of the proprietaries which were within the lines of manors ; nor were the same confiscated by the act of 1781, for estab

lishing a land office. The statute of limitations of Pennsylvania, of 1705, is inapplicable to

an action of ejectment, brought to enforce the unpaid purchase money, for lands of the proprietaries within the manors for which war

rants bad issuede Nor is the statute of limitations of 1785, a bar to such an action.

ERROR to the Circuit Court of Pennsylvania. This was an ejectment, brought by the defendant in error, in the Court below, to recover the possession of certain lands in York county, in the State of Pennsylvania. On the 4th of March, 1681, Charles II. granted to William Penn, the ancestor of the lessor of the plaintiff below, that tract of country which now constitutes the State of Pennsylvania. The grant contains special powers to erect manors and to alien the lands, with liberty to the alienees to hold immediately of the proprietor and his heirs, notwithstanding the statute of quia emptores. On the 11th of July, in the same year, William Penn, having interested many persons in his grant; agreed with "the adventu

Vol. XX.

31

1824.

Kirk

V. Smith.

rers and purchasers" in England, on “certain con-
ditions and concessions,” which, being for their
mutual advantage, were to be obligatory in the
future management of the property and settlement
of the province. The 9th of these conditions is,
that “in every 100,000 acres, the Governor and
proprietary, by lot, reserveth ten to himself,
which shall lie but in one place.” In the year 1762,
a warrant was issued for the survey of the manor
of Springetsbụry. This warrant recites a former
survey of the same land, in 1722, as a manor;
states the general outlines of such former survey,
and directs a resurvey. This resurveying was
made, and returned into the land office in 1768,
where it has remained ever since. This resurvey
included the lands claimed by the plaintiffs in er-
ror, which were held under warrants, of which the
following is a specimen :
Pennsylvania, 88: BY THE PROPRIETARIES.

“Whereas, Partholomew Sesrang, of the county of Lancaster, hath requested that we would grant him to take up two hundred acres of land, situate between Codorus creek and Little Cone. waga creek, adjoining the lands of Killian Smith and Philip Heintz, on the west side of the Susquehannah river, in the said county of Lancaster, for which he agrees to pay to our use the sum of fifteen pounds ten shillings, current money of this province, for each hundred acres; and the yearly quit-rent of one halfpenny sterling for every acre thereof.

“ These are, therefore, to authorize and require vou to survey, or cause to be surveyed, unto the

Kirk

Smith.

said Bartholomew, at the place aforesaid, accord- 1824. ing to the method of townships appointed, the said quantity of 200 acres, if not already surveyed or appropriated; and make return thereof into the secretary's office, in order for further confirmation; for which this shall be your sufficient warrant : which survey, in case the said Bartholomew fulfil the above agreement within six months from the date hereof, shall be valid; otherwise void.

“Given under my hand and seal of the land

office, by virtue of certain powers from

the said Proprietaries, at Philadelphia, [L. s.] this eighth day of January, Anno Do

mini one thousand seven hundred and

forty-two: “ GEORGE THOMAS. To WM. PARSONS, Surveyor General.”

În virtue of this warrant, a survey of the land claimed by Caleb Kirk, one of the plaintiffs in error, was made on the 12th of October, 1747, in favour of Jacob Wagner, the then holder of the warrant, by various mesne transfers. The title was regularly deduced by various conveyances, from Wagner to Kirk, accompanied with possession. No grant was ever issued for the land. Ten pounds, a part of the consideration, were paid about the date of the warrant, and there was no proof of the payment of the residue. It appeared to have been the usage of the proprietaries, not to insist upon the terms of the contract, by which the survey was declared to be void, unless the agreement was fulfilled within six months from the date of the warrant, and large arrearages of purchase money remained due after the surveys were made

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1824. both within and without the manors. The only

distinction appears to have been, that the reserved Kirk

lands were sold by special contract; and the lands Smith.

not reserved, were sold at stated prices.

At the commencement of the war of the American revolution, the proprietary went to Great Britain, where he remained; and in the year 1779, the legislature of Pennsylvania passed an act, entitled “an act for vesting the estates of the late proprietaries of Pennsylvania, in this commonwealth." The ejectment was brought in the year 1819, and on the trial of the cause, the question whether the land in controversy was included within the lines of the manor of Springetsbury, as surveyed under the warrant of 1762, was left to the jury, who found that it was included within those lines. The opinion of the Court below, was, that if the land was within those lines, the right of the plaintiff below was excepted out of the general operation of the act of 1779, and was not vested in the commonwealth. The court also instructed the jury, that the statute of limitations of 1705, commonly called the “ seven years law,” was inapplicable to the case. To these instructions, the defendant's counsel'excepted, and a verdict and judgment for the plaintiff having been rendered in the Court below, the cause was brought by writ of error to this Court.

March 14th,

1829.

The cause was argued by Mr. Clay and Mr. Webster for the plaintiffs in error, and by the Attorney General and Mr. Sergeant for the defendants in error.

1824.

Kirk

V. Smith.

On the part of the plaintiffs in error, it was contended, 1. That the rights derived to the plaintiffs below, were proprietary, and not manorial. Being in their origin proprietary, they were not, and could not be, affected by the survey of a manor in 1768, subsequent to their commencement.

2. That the rights, being proprietary, and not manorial, vested in the Commonwealth of Pennsylvania, by the right of conquest, and the act of confiscation of 1779. The 7th section confirms all persons, and, consequently, the plaintiffs below, in their rights, derived from the proprietaries. The act must be construed according to its intention, ascertained by a comparison of all its parts. The intention was to confiscate the proprietary rights, wherever situated; and to reserve the private or manorial rights, wherever located. If a proprietary right was situated within a manor, it was to be confiscated. If it were part of the manor, that is, of the right springing out of the manor, it was reserved. There is no reservation to the proprietaries of the arrears of purchase money due within manors. There is only an exception from the operation of the abolition of quitrents and arrears of purchase money, within manors; and this exception must be construed to mean the case of lands bought as part of the

It would be to contradict the whole scope and meaning of the act, to construe it as abolishing proprietary rights every where but in manors, and to leave them there in full vigour. According to this view of the act, we shall have a consistent and congruous interpretation. The pub

manor.

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