Kirk V. Smith. 1824. In the present case, it is not disputed, that the defendants went into possession under the proprietors, and nothing has since occurred to change the character of the possession. No one could hold adversely, unless he came in by title paramount to the proprietary; and no title against the Commonwealth, or grantee of the Commonwealth, can be acquired by length of time." The possession of lands held by warrant and survey, is not adverse to, but under the Commonwealth." February 5. The cause was continued to the present term for advisement. Mr. Chief Justice MARSHALL delivered the opinion of the Court. This is a writ of error to a judgment rendered by the Circuit Court for the District of Pennsylvania, in favour of Penn's lessee, who was plaintiff in a writ of ejectment. The case depends on a bill of exceptions taken to the opinion of the Court, expressed in a charge to the jury. On the 4th of March, in the year 1681, Charles II. granted to William Penn, the ancestor of the plaintiff in the Circuit Court, that tract of country which now constitutes the State of Pennsylvania, By this grant, the property in the soil, as well as in the right of government, was conveyed to William Penn and his heirs, in fee simple. The grant contains special powers to erect manors, and to alien the lands, with liberty to the a Morris v. Thomas, 5 Binney, 77. 8 M'Coy v. Dickinson College, 4 Sergt. & Rawle, 305. Kirk Smith. alienees to hold immediately of the proprietor and 1824. 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 "adventurers and purchasers" in England, on "certain conditions or 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." It would seem as if this article should be construed as restraining the power of the proprietor. Being the absolute owner of the soil, it was in his power, independent of contract, to sell, or not to sell, any part of it. But, as the value of the lands must necessarily depend on the progress of settlement, it was obviously the interest of the great purchasers and adventurers, as well as of the proprietor, that he should open the country generally to emigrants. It was also the interest of the proprietor, to make large reservations for his private use, that he might avail himself of the increased válue to be derived from settlement. To prevent his checking the advance of the settlements by unreasonable reservations, this article fixes the proportion of land which he may take out of the general stock offered to the public. The great mass of land was in the market, to be acquired by any adventurer, at a given price; but out of this mass, Vol. IX. 33 1824. the proprietor reserved for himself one tenth, to lie in bodies of not less than 100,000 acres. Kirk V. Smith. The survey reserving these lands for his own use, whether distinguished by the common appellation of manor, or by any other name, was not to give any new title to the proprietor. The sole effect was, to separate the land so surveyed from the common stock, and to withdraw it from the market. The survey was notice to all the world, that the land was not subject to individual appropriation on the common terms, but could be acquired only by special contract. It was not the intention, because it could not be the interest of the proprietor, to continue all these manors, or reserved lands, as unoccupied wastes, but to sell them at such advanced price as the continuing progress of settlement and increase of population would justify. The lands reserved, and the lands not reserved, belonged equally to the proprietor, and were equally for sale. The only difference between them was, that the lands not reserved, were offered to the public at a fixed price, while those which were reserved, could be acquired only by special agreement. This difference produced the distinction, of which we have heard in argument, and which seems to have been well understood in Pennsylvania, between warrants on the common terms, and warrants to agree. In the year 1762, a warrant was issued for the survey of the manor of Springetsbury. 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 Kirk resurvey was made, and returned into the land 1824. office, in the year 1768, where it has remained ever since, among the documents of the land titles in Pennsylvania. This resurvey included the lands of the plaintiffs in error, which were held under warrants, of which the following has been selected as a specimen: "Pennsylvania, ss.: BY THE PROPRIETARIES. Whereas, Bartholomew 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 Concwaga 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 you to survey, or cause to be surveyed, unto the said Bartholomew, at the place aforesaid, according 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 V. Smith. 1824. the above agreement within six months from the date hereof, shall be valid; otherwise void. Kirk Smith. "Given under my hand and seal of the land office, by virtue of certain powers from the said Proprietaries, at Philadelphia, [1.. s.] this eighth day of January, Anno Domini one thousand seven hundred and GEORGE THOMAS. forty-two. "To WM. PARSONS, Surveyor General.” In 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 has been issued for the lands. Ten pounds, in part of the consideration, were paid, about the date of the warrant, and there is no proof of the payment of the residue. It appears to have been the common usage, for the proprietaries. to give great indulgence to the purchasers of lands, for the purchase money. Although, by the terms of the contract, the survey was declared to be void, unless the agreement were fulfilled in six months, yet the proprietaries appear not to have been in the practice of availing themselves of this condition. Large arrearages of purchase money remained due after the surveys were made, which, as the grants were withheld, were debts upon interest, secured in the |