網頁圖片
PDF
ePub 版

1824.

Kirk

v. Smith.

lic rights of the proprietaries, wherever situated, will have been confiscated; and the private rights, wherever situated, will have been preserved. The Court will look to the nature of the thing, and not to the accident. If a proprietary right be situated within a manor, it will be abolished, because it is proprietary. Such is the construction which the local Legislature itself has put upon this statute, by the act of 1781, for establishing the land office, and by the act of 1784. These acts are cotemporaneous, and in pari materia. If, then, the rights of the proprietors were vested in the State, there remained nothing in them; the legal title passed to the Commonwealth, and, consequently, they could not maintain this action of ejectment. But if any was reserved, it was only the arrears of the purchase money, and not the title, which they might sue for in any manner.

3. That whatever might be the nature of the claim, (manorial or proprietary,) it was barred by the statute called the seven years law, passed in 1705, whether the consideration money is paid or not. This limitation of seven years, appears to have been a favourite period of protection in Pennsylvania. William Penn enacted a law to that effect, in England, the year after he obtained his charter;" and again, in 1700, the same period is provided. And a short period of limitation to

a 1 Laws of Penn. 529. preamble and sec. 5.
6 2 Ib. 102.
c 1 Ib. 48.
d 5 16. 416. art. 16.
e B. Franklin's App. 9, 10.

1824.

Kirk

Smith,

protect possessions, is believed to have been the favourite policy of all the colonies. The act of 1705, to afford the protection which it intends to give, requires two circumstances: 1. That the entry should be under an equitable estate. 2. That there should have been seven years quiet possession. The intention of the act was to protect the property. The vendor was at liberty to enforce payment of the consideration money, by all legal means. Even the land itself was not withdrawn from the operation of a judgment. After seven years, the title was complete, but it was still liable to execution. If the plaintiffs in ejectment can recover, it is because they have a lien. Now, if the lien were express, it would have been barred by the lapse of twenty years; and no lien, created by operation of law, can be more durable, than one created by express act of the party.“ To support this right of recovery, would be to uphold a remedy after the right is gone, and to make the remedy immortal, whilst the right is temporary.

4. That the payment of the purchase money ought to have been presumed; and, consequently, a perfect equitable title in the defendants, barring the action of ejectment. The length of time elapsed, would have authorized a jury to presume a charter, patent, or deed. The fact of actual payment being made out by presumption, the Courts of Pennsylvania adopt the Chancery principle of considering that as done which ought to

a Ricard v. Williams, 7 Wheat. Rep. 119. 6 Id. 109... 1 Phill. Ev. 119, 120. 125.

1824. be done. When a party, entitled to a conveyw ance, does every thing necessary to be done, in Kirk

order to obtain a decree for a specific performance, Smith.

he stands by the local law, in a situation to support or defend an action for the possession of the land.

5. That the plaintiffs below were barred by the statute of limitations of 1785. If we had entered by disseisin, our right would have been protected. We entered claiming the whole fee. Our title and our possession were, therefore, exclusive; that is to say, adverse to every other title or possession. It is said that it was not adversary, because we claim from them: but the mortgagee claims from the mortgagor, and, nevertheless, is barred after twenty years. The idea of an amicable possession, is founded upon confounding the case with that of leases, reversions, and remainders. If the vendee purchases the whole estate, his possession, from the moment of his entry, is adverse to that of the vendor. But, from the period of the survey of 1768, there was an adverse state of possession. The proprietaries set up their manorial or private right against their public or proprietary right, and from that epoch, inconsistent and opposing titles were brought into being. From that moment, the statute of limitations began to run. There is no

a Moody v. Vandyke, 4 Binn. 41. Vincent v. Huff, 4 Sergt. and Rawle, 301.

5 Griffith v. Cochrane, 5 Binn. 105.
C 2 Laws of Penn. 299.
d Blight v. Bochester, 7 Wheat. Rep. 585.

[merged small][merged small][ocr errors][merged small]

escape from this dilemma: either the survey of the manor did not affect, in any way whatever, the previous proprietary right, or it did, and was an attempt to reappropriate to the use of the manor, what had been appropriated before. In the first case, the right was confiscated; in the latter it is barred.

For the defendants in error, it was stated, that; by the royal charter to William Penn, of 1681, he derived an absolute right of ownership to the territory within the limits described, and power to grant, subject to no restrictions but such as he thought fit to impose upon himself. He came to Pennsylvania in 1682; and the powers of government and rights of property were always kept distinct, the former being exercised by the General Assembly, and the latter by means of an agency, constituting what is called a land office. Two principles were early settled, that no sales were to be made, nor settlements permitted, till the Indian title should be extinguished; and that no title. could originate but by grant from William Pend. In the establishment of the land office, it was originally intended that no title should begin but by warrant and survey. But this was soon broken in upon; every kind of irregularity occurred; and, finally grew up the title by settlement and improvement. All these inceptive rights were under the proprietary, and they were to be consummated by payment of the purchase

TO

0 % Smith's Laws of Penn. 187. Note: Vol. IX.

32

ITS.

1824. money and issuing the patent. For that purpose,

the warrant fixed a price and time of payment; Kirk

and where there was no warrant, the price of the Smith.

time was to be paid, which was called “common
terms." The mass of the.country was opened by
opening the land office, but this did not include
proprietary tenths and manors. These last were
appropriated by virtue of his own right of owner-
ship, and are not to be understood as meaning a
manor in a legal sense, with its court and train of
feudal appendages. The term did not mean a
private reservation, for his own separate use, to be
taken out of the market, and granted in a different
mode. It meant only a portion of country, sepa-.
rated from the common mass, so as not to be open
to purchasers (on common terms) or to settlers.
The peculiar and appropriate mode of granting
in a manor, was a warrant to agree. It was, in
fact, an exception out of the country offered for
sale. No particular form of exceptions was ne-
cessary, and none was pursued. He was subject
to laws, but only to his own laws. He might be
considered as saying, “ So much I will sell at a
fixed price; so much at the value to be agreed."
W. Penn died in 1718, and a dispute arose with
Lord Baltimore respecting the boundary line of
Maryland, which was settled by an agreement
between the two proprietaries, in 1732, and rati-
fied by decree in Chancery, in 1750. The line

a 4 Dall. Rep. 407.
6 2 Smith, 133. Note.
c Penn v. Lord Baltimore, i Ves. 444..

« 上一頁繼續 »