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Kirk

Smith.

was finally run in 1768, and ratified by the King 1824. in Council, în 1769. In 1732, the Marylanders encroaching, and the Indians growing uneasy, Sir W. Keith, at the request of the latter, issued an order to survey the manor of Springetsbury, which was accordingly surveyed in that year. The land office was not then open west of the Susquehannah, the Indian title not being extinguished. In 1736, before the land office was opened, Thomas Penn, the proprietary, recognised and adopted the survey, and thereby gave it validity. In 1762, the survey of 1732 having been mislaid or lost, Gov. Hamilton issued a warrant of resurvey, which was duly returned into the land office, in 1768, where it has since remained.

When the revolution ocourred, the descendants of the proprietary were the owners of all the vacant lands in the province; they had the legal estate in all lands, to which individuals had only acquired inceptive rights, for the purpose of enforcing the terms; they were entitled to all purchase money, and to all quit-rents; they had also private estates subject to the ordinary legislation. The whole, as then existing, may be arranged into three classes. (1.) Their private estates, which may be at once dismissed. (2.) Estates or rights in lands not included in the limits of manors: and these might be legal, or legal and equitable. (3.) Estates or rights in lands included within the limits of manors: which might also be Jegal, or legal and equitable. And the nature of their legal right to kinds within a manor, would -lepend upon the nature of the equity of the oc

1824. cupant. Whether his equity be more or less, is Kirk'

of no consequence at law, since it does not di

minish the extent or power of the legal right. Smítb.

These inceptive rights are passed from hand to band, by deed; they descend, are devised, and sold by the Sheriff; and every body knows their nature, and the liabilities to which they are subject. The deeds frequently express it, as in the present instance. Hence the lapse of time affords no presumption of the payment of the purchase money, or completion of the title. In truth, there is no such thing in Pennsylvania as the presumption of a grant.

This was the state of things at the period of the revolution. That event, ipso facto, determined the powers of government conferred by the charter, but left the rights of property exactly as they stood before, in which state they remained until the act of 1779. That act devests the estate of the proprietaries, only by vesting it in the Commonwealth. It, therefore, devests no further than it vests; and as to all besides, leaves it on the same footing as before. It did not at all change the relation between the proprietaries and those who had purchased their lands. They then had, and still have, a land office, to receive purchase moneys and grant patents. The Commonwealth land office will not receive the purchase money of lands included in the limits of manors, nor will they grant patents for it. The act thus bad the effect of making a partition, and from that time forward there have, in fact, been two land offices in Pennsylvania. Great indulgence has

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been shown in the collection of the purchase 1824. money; but the tenure has never undergone any change, and it has never been doubted that the

Smith. legal title remained in the proprietors and the Commonwealth, respectively, and that they might at any time enter, to enforce the terms of sale.

The act of 1779 did not assert that the estates of the proprietaries had been devested by the revolution, nor could that proposition now be maintained, if the question were open. It did not profess to confiscate their property, nor could it justly do so, for they had committed no offence. Neither did it assert a right of conquest. The act was not passed to benefit individuals, nor to alter or lessen their just liability. It was a partition between the Commonwealth and the proprietary of all their estates, legal and equitable, of which the manor lines, were the lines of division. It left the proprietors, then, their vacant lands, their legal estates, and all else within the manors. The terms of the act give no countenance to the idea, that the legal title was assumed by tủe Commonwealth, leaving the purchase money to the proprietaries. The reservation is of private rights. But the whole of this question has been long since disposed of, and it is now considered as settled law in Pennsylvania, that the legal estate is in the descendant of the proprietaries, as a security for the purchase money."

As to the seven years law of 1705, it has never

a 4 Dall. Rep. 02. 410. Penn v. Klyne, 1 Peters' Rep. C. c. 6 Laws of Penn. 205.

1824. been heard of since the time of its enactment, Kirk

and we are, therefore, compelled to look for a

construction of it consistent with its disuse. It is Smith.

a retrospective law in its very terms, and, having performed its office at the time, has been ever since disused. No such construction as that insisted on, ever could have been given to it.

As to the presumption of payment, it must be founded, in every such case, both upon the length of time, and the omission to do what would be done if the presumed fact did not exist. It is a presumption merely, and may be repelled by circumstances, showing why an earlier demand has not been made. No such presumption, therefore, exists, unless the forbearance be unusual, or contrary to what might have been expected. But it has been the universal practice to forbear. If there had been a payment, there would have been a patent. Where the fact to be proved must appear by deed, the presumption, from length of time, does not arise. The surveys, if made, were never returned ; therefore, there could have been no payment. The receiver general's books will show what has been paid.

The statute of limitations of 1785, is not a bar. To make possession a bar, it must be adverse. It may be adverse as to one, and not as to another. A possession under one, is not adverse to him.

a Phill. Eo. 118, 119.
b Ib. 117, 118.
c 1 Dall. 67.

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Possession under an agreement, is not adverse;" 1824. and ouster cannot be presumed where the possession is not only under, but according to the agree

Smith, ment. To maintain a title, or a claim, of adverse possession, such possession must be adverse at its commencement, and so continue for twenty years., There must be, at least, a claim, or colour of title, adverse or hostile ; though it is not necessary that it should be a good title. A person who enters without claim, or colour of title, is deemed to be in possession in subservience to the legal owner, and po length of time will make it adverse. The doctrine of adverse possession must be strictly taken, and the fact must be made out by clear and positive proof, and not by inference. Every presumption is in favour of a possession, in subordination to the title of the true owner. If the defendant has acknowledged the plaintiff's title, he cannot, afterwards, dispute it. So, an acknowledgment, by a person under whom the defendant claims, that he went into possession under the lessors of the plaintiff, is conclusive against the defendant, as to tenancy. And though it may not have that effect, yet it will prevent possession from being adverse.

'a Barr v. Gratz, 4 Wheat. Rep. 213.

6 Branett v. Ogden, 1 Johns. Rep. 230. Doe v. Campbell, 12 Johns. Rep.365.

c 2 Caines, 183. 13 Johns. Rep. 118. d 16 Johns. Rep. 293.

e 3 Johns. Cas. 124. 8 Johns. Rep. 220. 9 Johns. Rep. 163. 12 Johns. Rep. 365. 10 Johns. Rep. 475. f i Caines, 444.2 Caines, 215. 3 Johns. Rep. 499. & 2 Johns. Cas. 358. 4 Johns. Rep. 230.

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