V. TION OF SPRING. 1813. vity or consent of the congregation. By these means the CAUFMAN Congregation would be stripped of the lands which the trustees had specially applied for, and in lieu thereof, would CONGREGA- obtain lands which were proved on the trial, to be of inferior quality, and considered relatively were not deemed as exceeding one fourth part in point of value. This conduct was most highly unjustifiable in every view of the case. It is not competent to the proprietary agent to vary the contract of the parties without their consent. In 1774 or 1775, the congregation built a parsonage house on the premises in controversy, north easterly of their church, without any claim on the part of Calhoun, and put their minister Mr. Kennedy in possession thereof, who occupied the same until 1779, when he was succeeded by the Rev. Hugh · Magill, who was likewise put into possession by the congregation, under a written agreement which is since lost, that he should reside therein free of rent, and should have liberty to make improvements on the land, for which he was to receive compensation in case they exceeded, the value of the rent. Thus living under his flock and superintending their spiritual concerns, he buys in the claim of Calhoun for 401. in 1786, which, if his pretensions were well founded, would be worth at least 3001. The congregation are justly displeased with him, but he is suffered to continue on the land. In 1800 the matter is heard in presbytery; and at length it was mutually agreed that Magill should hold possession of the glebe during his natural life, and receive an annuity. He gave up the sacramental cups &c., and separated from his flock as their pastor. All this seems incompatible with his pretensions under the adverse title of Calhoun. Magill died on the land in 1805, and immediately afterwards, notice was given to his children to quit the premises. Previously thereto, on the 1st of February 1802, William Magill and Robert Magill two of the sons, fraudulently obtained a conveyance from James Purdy the surviving trustee of the congregation, in consideration of 55 dollars; and after their father's death, on the 17th of March 1707, obtained a patent from the Commonwealth in trust for all the heirs, and all the children join in a conveyance to John Caufman on the 5th of May 1807, with covenant of general warranty. Immediately after Caufman received possession, an ejectment was brought against him. 1813. CAUFMAN V. TION OF SPRING. Upon this statement of the facts, I can see little difficulty in deciding in whom the title is; or as it is frequently ex- CONGREGApressed, who had the best right to the patent. The question whether the congregation were guilty of any constructive fraud in not giving notice to Caufman previous to his purchase, was fairly submitted to the jury, and they have deci ded against it. Their possession by their tenants operated as full notice of their claim. They had the earliest location, particularly describing the premises, which could be satisfied no where else, which was followed up by an early survey, and though not properly returned, the actual survey formed a complete contract. If the surveyor general would not receive the survey on the ground of the large quantity of land contained therein, the surplus thrown out should not have been of such part as was specially called for by the application, but on the other side of the tract where the lands were of inferior value, and notice given thereof to the trustees of the church. The conduct of the deputy herein, could not affect the interests of the congregation, unless they acquiesced therein after notice of the fact, of which there was no evidence. Hugh Magill came into possession under them as their tenant, and neither in a legal nor moral sense could withhold the possession from them against the plain tenor of their contract. His children came in under him, and also their vendee, and they all stood in the same relative situation towards the original landlords. The plain consequence is, that Caufman must resort to his covenant of general warranty upon his eviction, for the redress of the injury he has sustained. I am of opinion that the judgment of the Court of Common Pleas be affirmed. BRACKENRIDGE J. having been prevented by sickness from sitting on the argument, gave no opinion. Judgment affirmed. CASES IN THE SUPREME COURT OF 1813. Pittsburg, September 11. A warrant, survey, and patent for lands not purchased of the Indians, and which the proprietaries did not PENNSYLVANIA. Western District, September Term, 1813. THOMPSON against JOHNSTON. IN ERROR. ERROR to the Common Pleas of Indiana county, to remove the record of an ejectment for 217 acres and 18 perches of land, brought by Johnston the plaintiff below against Thompson, in which the following case was stated, know at the time to be considered in the nature of a special verdict. of granting, to be within the Indian limits, pass no right. Title of plaintiff below. A warrant issued by the Commonwealth of Pennsylvania to Thomas Johnston for 200 acres of land within the late purchase, dated 17th May 1785. A survey of 217 acres 18 perches and allowance was made on the 17th of July 1785, by virtue of the said warrant, by James Johnston deputy surveyor, adjoining the purchase line. Thomas Johnston the warrantee above named, by indenture dated 3d December 1798, in consideration of natural love and affection and of one dollar, conveyed the said tract of land to James Johnston the plaintiff in fee. The defendant is in possession of the land surveyed as above. The said defendant and a certain Alexander Taylor. searched the lines of said tract of land about thirteen years ago, and found the purchase line marked differently from other lines; and that the diagram made by Alexander Taylor on the 27th of December 1809, by virtue of an order of Court, contains a true representation of the surveys of plaintiff and defendant, and their relative situation, and of the purchase line as run in conformity with the treaty with the Indians at Fort Stanwix in 1768; and that the land now claimed by plaintiff lies on the north side of said line, and adjoining thereto. The said treaty and purchase from the Indians, and the different acts of assembly relative thereto, to be considered as part of the case, and that the purchase line was run and marked agreeably to the acts of assembly, previous to making the plaintiff's survey. Defendant's title. An application was entered on the 23d of July 1773, for 300 acres in the county of Westmoreland, in the name of Charles Porter. On the same day a warrant was issued by the then proprietaries of Pennsylvania to Charles Porter for 300 acres joining Stephen Porter in Westmoreland. On the 14th day of October 1773, a survey was made by Joshua Elder deputy surveyor, by virtue of the said warrant, containing 323 acres and allowance, and which survey is fairly represented in the diagram made as above by Alexander Taylor. Charles Porter by indenture dated the 8th of February 1775, in consideration of five shillings conveyed the said tract of land to James Cannon; and the then proprietaries on the 18th of the same month, granted their patent for the land to Cannon. The defendant settled on the land in dispute in the year 1796, and has cleared eight or nine acres. The purchase line runs through the tract of land in the name of Charles Porter; and the defendant claims the tract under the patent to Cannon above mentioned. The purchase line above stated was the boundary line between Westmoreland county and the counties thereto adjoining on the north, until the act of assembly, passed the 30th of March 1803, erecting certain parts of Northumberland and Lycoming counties into a separate county called Indiana; the same for a certain time came within the jurisdiction of Westmoreland, and is now Indiana county, and was so at the time of bringing the suit. The commission to Joshua Elder contained only an authority to survey within the purchase of 1768. The survey of defendant was made, and patent granted before the purchase line was run by the commissioners. And if upon the whole the opinion of the Court shall be &c. 1813. THOMPSON υ. JOHNSTON. 1813. THOMPSON V. JOHNSTON. The diagram of Taylor is not material: it shewed the interference of the tracts, and that Porter's survey was upon land not then purchased from the Indians. Forward argued for the plaintiff in error. Ross contra. TILGHMAN C. J. James Johnston the plaintiff below, and defendant in error, claims under a warrant dated 17th May 1785, on which a survey was made 17th July 1785. John Thompson, the defendant below, claims under a warrant dated 23d July 1773, on which a survey was made 14th October 1773, and a patent issued 18th February 1775. But at the time of the defendant's warrant, survey and pa tent, the land had not been purchased by the late proprietaries of the Indians. The question therefore is, whether any right to land so unpurchased passes by a patent. It is a principle that nothing passes by a deed, where the grantor is entirely deceived as to the object of the grant, unless such deception be without any fault of the grantee, and on a point which the grantor is bound to know. Considering that the surveyor was in some measure the agent of the party who took out the warrant, as well as of the proprietaries, and that it was the party who described the land which he wished to take up, I do not think that a survey made in express violation of the rules prescribed for the conduct of surveyors, can be said to be altogether without the fault of the warrantee, although he may not have been guilty of an intended fraud or deception. It was impossible for the proprietaries to be present at the execution of surveys. They therefore laid down general rules for the direction of surveyors, and it is highly reasonable that all persons applying for lands, should be bound by those rules. One of these directions was, to survey no lands beyond the bounds of the purchases from the Indians; a regulation founded not only in good policy, but in strict justice. The royal charter did indeed convey to William Penn an immediate and absolutè estate in fee in the province of Pennsylvania. But that great and good man did not conceive that he had a title in conscience, until he had obtained the consent of the natives. Accordingly he established it as a principle, which was fol |