Kirk v. Smith Penn
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 adventurers
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 and purchasers' in England, on 'certain conditions 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 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 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 error, which were held under warrants, of which the following is a specimen:
'Pennsylvania, ss: 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 Conewaga 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 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, this eighth day of January, Anno Domini one thousand seven hundred and 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 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 both within and without the manors. The only distinction appears to have been, that the reserved lands were sold by special contract; and the lands 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, 1823.
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.
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 manor. 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 public 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 contemporaneous, 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 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 be done.  When a party, entitled to a conveyance, does every thing necessary to be done, in order to obtain a decree for a specific performance, 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 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 Penn. 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 money and issuing the patent. For that purpose, the warrant fixed a price and time of payment; and where there was no warrant, the price of the 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 ownership, 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, separated 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 necessary, 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 ratified by decree in Chancery, in 1750.  The line was finally run in 1768, and ratified by the King in Council, in 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. VOL. IX.
When the revolution occurred, 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 legal, or legal and equitable. And the nature of their legal right to lands within a manor, would depend upon the nature of the equity of the occupant. Whether his equity be more or less, is of no consequence at law, since it does not diminish the extent or power of the legal right. These inceptive rights are passed from hand to hand, 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 had the effect of making a partition, and from that time forward there have, in fact, been two land offices in Pennsylvania. Great indulgence has been shown in the collection of the purchase money; but the tenure has never undergone any change, and it has never been doubted that the 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 the 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 been heard of since the time of its enactment, and we are, therefore, compelled to look for a construction of it consistent with its disuse. It is 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. Possession under an agreement, is not adverse;  and ouster cannot be presumed where the possession is not only under, but according to the agreement. 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 no 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.  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. 
The cause was continued to the present term for advisement. February 5.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
^1 1 Smith's Laws 529
^2 2 Ibid. 102
^3 1 Smith's Laws 48
^4 5 Ib. 416. art. 16.
^5 B. Franklin's App. 9, 10.
^6 Ricard v. Williams, 7 Wheat. Rep. 119.
^7 Id. 109. 1 Phill. Ev. 119, 120. 125.
^8 Moody v. Vandyke, 4 Binn. 41. Vincent v. Huff, 4 Sergt. and Rawle, 301.
^9 Griffith v. Cochrane, 5 Binn. 105.
^10 2 Laws of Penn. 299.
^11 Blight v. Rochester, 7 Wheat. Rep. 535.
^12 2 Smith's Laws 137, Note.
^13 4 Dall. Rep. 407.
^14 2 Smith, 133. Note.
^15 Penn v. Lord Baltimore, 1 Ves. 444.
^16 4 Dall. Rep. 02. 410. Penn v. Klyne, 1 Peters' Rep. C. C. 6 Laws of Penn. 205.
^17 Phill. Ev. 118, 119.
^18 Ib. 117, 118.
^19 1 Dall. 67.
^20 Barr v. Gratz, 4 Wheat. Rep. 213.
^21 Branett v. Ogden, 1 Johns. Rep. 230. Doe v. Campbell, 12 Johns. Rep. 365.
^22 2 Caines, 183. 13 Johns. Rep. 118.
^23 16 Johns. Rep. 293.
^24 3 Johns. Cas. 124. 8 Johns. Rep. 220. 9 Johns. Rep. 163. 12 Johns. Rep. 365. 10 Johns. Rep. 475.
^25 1 Caines, 444. 2 Caines, 215. 3 Johns. Rep. 499.
^26 2 Johns. Cas. 358. 4 Johns. Rep. 230.
^1 Morris v. Thomas, 5 Binney, 77.
^2 M'Coy v. Dickinson College, 4 Sergt. & Rawle, 305.