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lowed by his successors, and has received the approbation of all mankind, to grant no lands which had not been pre- THOMPSON viously purchased of the Indians. In this he was supported by the legislature, who at a very early period made it penal for any individual to settle on the Indian lands, or even to make a purchase from them. The consequence was what might be expected. The Indians entertained a lasting sense of gratitude and, good will to the proprietaries and governors of Pennsylvania, and were less disposed to war with that province than with others, where principles less equitable had been adopted. If the proprietaries had been informed of the truth of the matter, we may be morally certain, that the patent in this case would not have been issued, nor is it pretended that it ought to have been issued. But it is said that having issued, the legal estate passed. But that is begging the question; for it is contended on the other side that the grant was void, in consequence of the deception. We are not without authority for this opinion; for it was determined before the revolution in the case of The Proprietaries v. Samuel Wallis, that patents were void, which were issued for lands in the proprietary manors, surveyed contrary to standing instructions, and done in such a manner, that the secretary and surveyor general were imposed It was also decided at Nisi Prius in the year 1796, in the case of Weiser v. Moody, that nothing passed by a patent for lands beyond the bounds of the purchase, unless the proprietaries or their superior officers were acquainted with the true situation of them. It may be asked, what in such a case does equity require? The answer is plain. When the patentee has been guilty of no fraud, he should either be permitted to survey an equal quantity of other land, or have his money restored to him with interest. But equity would not require that he should have the identical land, illegally surveyed in 1773, which has been since legally surveyed and sold to another under the authority of the Commonwealth. This would be doing wanton injustice to the subsequent purchaser. In the present instance there is no allegation of fraud, but there certainly was negligence or carelessness in the surveyor, or the warrantee, or both. The purchase line had not been actually run; it was therefore incumbent on the surveyor to keep at such a distance as

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THOMPSON

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should be clearly within it. At any rate the survey was at the peril of the warrantee. This is the light in which the subject has been constantly viewed by the legislature. In JOHNSTON. the act for opening the land office, subsequent to the revolution (9th April 1781, 1 Smith's Laws 532) by which all imperfect titles derived from the late proprietaries were confirmed, there is an express exception of lands not within the Indian purchase; and in the year 1785, petitions for confirming titles under circumstances similar to the present were rejected. It appears to me therefore that the title of the defendant is defective; consequently the title of the plaintiff, although of later date, stands good. I am of opinion, that the judgment of the Court of Common Pleas be affirmed.

YEATES J. The history of Pennsylvania from its foundation as a colony, furnishes most abundant proof of the fixed resolution of the different proprietaries to dispose of no lands within their chartered limits, which had not previously been purchased from the Indian natives. The cultivation of peace with the Aborigines was a measure of sound policy; and combined therewith the individual interests of the lords of the soil. Their solemn engagements not to sell lands beyond the boundaries of their purchases were repeatedly recognized in different conferences with the Indians. The usual forms of warrants issued from the land office restricted the surveys to be made thereon within the Indian purchases; and the deputy surveyors received written instructions to execute the warrants directed to them, "according to the "express words and order of such warrants, and not other"wise:" and it is obvious that they had no authority to enter on the Indian lands to make their surveys. The purchasing of lands from the natives, or settling thereon, was prohibited by positive law.

No instance can be shewn wherein the proprietary officers have received an application for lands within the Indian boundaries; and we are bound to presume that if such applications had been made, they would have been rejected. It appears by the minutes of the governor's council, (Lib. M. 151.) that on the 18th of April 1752, a commission and license issued to Andrew Montour to settle and reside in any place he should judge convenient and central;

to preserve the lands from being settled by others, and warn off all who had presumed to go there, and to report the names of such as had settled there, that they might be prosecuted. In the course of my practice at the bar, two cases only came to my knowledge of ejectments being commenced on surveys made out of the Indian purchases; but the plaintiffs never ventured to bring either of them on to trial.

It appears from the facts agreed on in this case, that the survey under which the plaintiff in error claims the lands in dispute, was made on the 14th of October 1773, above eighteen months prior to the running of the lines of the Indian purchase, made at Fort Stanwix, viz. on the 4th of May 1775. The imaginary line therefore between the nearest fork of the west branch of Susquehanna and Kittanning, could only be guessed at. But if the owner of the warrant under which the plaintiff founds his pretensions, knew at the time that the survey was made. beyond the purchase, he was guilty of a fraud of which he or those claiming under him cannot avail themselves. There is nothing on the face of the survey as returned, which could lead the proprietary officers to information that the lands lay beyond the Indian purchase; and the deputy surveyor has sworn that his commission contained only an authority to survey within the purchase of 1768.

a

Assuming it then as a fact, that the situation of the lands. beyond the Indian purchase made at Fort Stanwix, was unknown either to the grantors or grantee at the time of issuing the patent on the 18th of February 1775, what is the law arising on this case?

It was against the uniform practice of the proprietaries to sell lands unpurchased from the Indians; nor was it their intention to do so in the present instance. A mistake had arisen from the want of knowledge in the deputy surveyor of an unmarked boundary of forty or fifty miles in extent, which had never been run; and neither party meant that lands within the claim of the natives should pass. There was not therefore the union of two minds in the grant of the lands in question, under the circumstances of this

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But what is the plaintiff's equity? The lands have been paid for by the patentee at the rate of 51. sterling per one VOL. VI.

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JOHNSTON.

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hundred acres; and as between him and the late proprieTHOMPSON taries, if the consideration has failed either in whole or in part, the former is entitled in good conscience to have the JOHNSTON. Consideration money refunded in proportion to the deficiency of his title, together with interest thereon, and his reasonable expenses. The Commonwealth has succeeded to the rights of the proprietaries, and should deal out the same measure of justice as would be incumbent on the latter. Beyond this the plaintiff has no fair pretensions against the state. Besides the relations between the parties have materially changed by subsequent events. Previous to the Indian purchase at Fort Mackintosh, the land office by an act passed 21st December 1784, was declared to be opened for sale of all vacant lands within the state (the depreciation and donation tracts only excepted) at the rate of 30% currency for every one hundred acres. In pursuance thereof Thomas Johnston, under whom the defendant in error holds, has paid for the lands in question at that rate, and the equity derived under him is evidently superior by a positive law to that derived under Charles Porter, who paid a very inferior sum for the lands then supposed to lay within the purchase. To give a preference to the latter under such circumstances, would render an illegal act the means of obtaining an undue advantage over the rest of the community.

Such were evidently the grounds of the legislative determination upon the petitions of James Milligan and Hugh Lenox, presented 22d March 1785, (Journals of Assembly 235,) and of William Parr, Owen Biddle and Clement Biddle, presented 28th of the same month. (Ib. 252). For although the committee on both petitions reported on the 5th of April 1785, "that at the times of the petitioners making the lo"cations and paying the purchase money, it was understood "and believed that the lands were within the lines of the "Indian purchase, but that the line which was run from the "western branch of Susquehanna to the Allegheny, in or "about April or May 1775, is said to have excluded the "lands so located and returned or part of them;-yet they were nevertheless of opinion that the claimants had an "equitable claim to have the lands confirmed to the war"rantees, or their legal representatives or assigns, and re

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"commended a resolution that the prayer of the petitions "should be granted." The legislature however refused to THOMPSON adopt the report, (Ib. 286.) and no provision was made in the subsequent law of 8th April 1785 allowing a preference in such cases.

Upon the whole I am of opinion that the judgment of the Court of Common Pleas of Indiana county should be affirmed.

BRACKENRIDGE J. At the time of the proprietary grant made to the plaintiff in this case, had the charter proprietor a right to the land granted, or has he since acquired a right, so that he could have it in his power to make a title, though originally he had not? The king of England, under whom the charter was granted, would seem to have considered himself as having an absolute right to the soil; for there is nothing said as to the rights of the Aborigines, or any reservation made in granting the charter. From the first discovery of the continents or islands of America, these Aborigines were not considered as having any right, not being christians, but mere heathens and unworthy of the earth. The pope, as head of the church, considered himself as having the title paramount and the absolute right of the soil. "The earth is the Lord's and the fulness thereof," says the scripture; and for whose use could it be intended but for that of the heirs of salvation. This was the catholic notion of the right; nor would the protestant church seem to have entertained different ideas as respected the claim of the original inhabitants of the country. For on the crown of England becoming protestant, we find no distinction taken, or modification of the grants that were made under it. The bare right of discovery is all that is referred to as warranting a right of property in the country so discovered. But the proprietor himself taking the charter, would not seem to have considered it as giving a right paramount and above that of the Aborigines; on the contrary he would seem to have acknowledged the right of the natives by purchasing from them. But it is observable at the same time that he considered himself as possessing an interest in the soil, exclusive to a certain extent; otherwise why claim a monopoly in his disposal of lands within the charter boundary? He would not

V.