USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 98
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Closely allied to the virtues are the graces, and worthy of all cultivation. They are like the setting of the diamond, which enables it to display its brilliancy and throw abroad its corruscations of light. The ac- complished lawyer, should also be the accomplished gentleman; polished in his manners; kind and courteous to all; servile to none; freely yielding homage where it is due, never exacting it from others; studious to render kindness, to spare feeling; disdaining to inflict injury; scrupulously observing the rights of others; not overjealous of his own; cultivating, in fine, true polite- ness, that of the heart, which is confined to no rank, is peculiar to no station.
Gentlemen,-In this rapid sketch of the character and qualities of your profession, has too much been de- manded of you? You are solicited only to attain he same excellence of which the Bar of the Union and the
Bar of Pennsylvania have presented many examples. Look back but a few years to the names of Tilghman and Lewis, and Ingersoll and Dallas, and Pinkney and Emmet, the illustrious dead; and you will find exem- plars to stimulate ambition, and guides to eminence. Look to the still remaining brethren of these men, the revered and respected patriarchs of our own bar, and you will behold models worthy of all imitation; gentle- men who decline the repose which they might fairly claim in the evening of a life of laborious exertion, and continue to bestow upon their profession, and their country the fruits of their learning and experience in the productions of their pen. Look to the generation which has followed them, to the enlightened men, who among ourselves, now. bear the sceptre of command, men distinguished alike for learning, for eloquence and for moral worth. Look to the Senate of the Union, and follow from the chamber of conscript fathers its pride and ornament; and go with him to the supreme tribu- nal of the nation, behold him every where commanding respect and admiration, shedding light, and carrying conviction. Look to all these, and you will see that you have been asked to tread its paths brilliantly illu- minated, and to follow in your course to usefulness and fame unerring guides.
The existence of this academy is a proof that you have started in your career with ardor, and are pursu- ing it with judgment. It is an admirable institution, en- titled to your constant support: a field of intellectual combat, in which discussions are heard that would com- mand respect from established tribunals: and which has already obtained a fame abroad, gained by the writings of a favorite son. The Academy has long been deeply indebted to the celebrated jurist, who in the midst of scientific labours, and philosophical research, has not hesitated to preside over its fortunes: its present session is commenced under auspices of renewed brilliancy, in the accession to its faculty of gentlemen upon whose model the rising generation may be proud to form themselves .* When hereafter the names shall be re- counted of those, who imbibing here their legal princi- ples, shall have sustained nobly the honour of their pro- fession, may yours, gentlemen, and that of each of you, fill a large space in the animating story.
LAND TITLES. (Continued from page 337.)
The plaintiff claimed under a warrant of the 1st of February, 1760, from lord Baltimore to David Ross, "for 500 acres of vacant land, in Frederick county, Mary- land, between Little Meadow and Buck Lodge, on Po- tomac river, above Fort Cumberland, partly cultivated. On the 30th of April, 1762, a survey was made for Ross, the certificate of which stated that by virtue of a re- newed warrant of 4th of February. 1762, 295 acres were surveyed, called the Dry Level, beginning at two white oaks, standing on the top of a hill, on the west side of Will's creek; but the survey said nothing of Little Mea- dow and Buck Lodge, or of its being partly cultivated; and it was said to be ten miles from the Potomac, and below Fort Cumberland; a Maryland patent to Ross, was dated in December, 1762.
The court said, the case depends upon the articles of agreement of 4th of July, 1760, between lord Balti- more and the Penns. By these articles, the estates of all persons were protected, who had before that time acquired title by any kind of grant from lord Baltimore, or his ancestors. The question then is, had lord Balti- more made a grant to David Ross, prior to 4th of July, 1760? If the original warrant had called for the land afterwards surveyed, we think that the title of Ross, would have related to the date of that warrant, although
* One of those gentlemen has resigned his station since this address was delivered.
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the survey was not made until some years after, pro- vided the warrant had been renewed according to the practice of the Land Office of Maryland. But suppos- ing, as we do, that the warrant did not call for the land surveyed, the grant to Ross cannot be said to commence before the time of surveying it, viz. 30th of April, 1762, and is therefore a mere nullity. We can find nothing in the articles of agreement between the proprietaries, to establish a title of this kind, to land in this state against a person, who, like the defendants, afterwards acquired a regular title from the proprietaries of Penn- sylvania, (which, as appears by the report, commenced in August, 1766,) a new trial was therefore granted, on the point of fact, whether the land was called for by the original warrant of 1760.
In the lessee of Thomas Lilly, v. George Kitzmiller, at York, May, 1791, before Shippen and Yeates, Jus- tices, (MSS. Reports, ) the case was as follows:
The lessor of the plaintiff grounded his title on a Ma- ryland patent for 6,822 acres, dated 11th of October, 1735, founded on an original warrant for 10,000 acres, dated 1st of April, 1732, which, according to the cus- tom of the Land Office of Maryland, had been several times renewed; also, on a Maryland warrant of re- survey, to re-survey the ancient metes and bounds, correct errors in the first survey, and add contiguous vacancies, whether cultivated or not, dated 15th of Ju- ly, 1745. A survey thereon of 3,679 acres, made in October, 1745, and a patent, dated 18th of October, 1745.
He also relied on the two agreements of the proprie- taries of Maryland and Pennsylvania, the first dated May 10th, 1732, under the 11th article whereof, "Per- sons holding lands under either of the proprietaries, though beyond the division line of the two provinces, were secured and quieted in their rights and posses- sions," and the order in council made in pursuance thereof, on the 25th of May, 1738. And the second agreement on the 4th of July, 1760, under the proviso whereof, it was declared, that "nothing therein con- tained should be construed to extend to the respective grantees, or those claiming under them," and deduced his title to both patents, under a will, and divers mesne conveyances and descents.
The defendant's title rested on a warrant to Martin Kitzmiller, for 150 acres of land, including his improve- ments, from the Land Office of Pennsylvania, dated 5th of February, 1747; a survey thereon of 164 acres, made 30th of May, 1759; a patent dated 17th of September, 1759; and a conveyance from the patentee to him. It was proved that the defendant and his ancestor had been in possession of the lands in question since the year 1738, or 1739. It was admitted on both sides, that the temporary line between the two provinces, was run . in 1739-the final division line run by Mason and Dixon was completed in 1767, and that the proclamations of the respective governors issued in 1774.
The instructions of lord Baltimore to Charles Carrol, his agent, dated 12th of September, 1712, were also given in evidence on the part of the defendant, whereby the mode of assigning warrants was pointed out, and wherein he directs, that in each survey, the boundary tree alone should be marked, and the courses and dis- tances specified in the return of survey, as the fairest mode, and best calculated to prevent civil suits!
and of 270 courses contained in the field notes, which were several years in witness's possession, he left out above one hundred and fifty of them; and the witness afterwards delivered the field notes to John Digges, the patentee.
The lands in possession of defendant were thus thrown out of the returned survey, but were included in the re- survey, which was said to have corresponded with the lines originally run upon the ground.
There was much other testimony, but not material to the point now under consideration.
The court in their charge to the jury, said, in sub- stance, as follows: The lands in dispute lie four miles north of the boundary line between the States of Penn- sylvania and Maryland. Independent of the proprieta- ries' agreements, lord Baltimore could have no right to grant lands beyond the limits of his province. What- ever, however, was granted by either proprietor, though beyond their respective limits, before the royal order in 1738, was secured to the settlers by their mu- tual agreement, but the subsequent agreement of 1760 could not affect the rights of persons claiming under either proprietor, previous thereto. The great question in this cause is, whether the first survey included the lands now possessed by the defendant.
It appears to us there is a failure in the plaintiff's title in this early stage of it. Under the practice in Pennsylvania, of making proprietary surveys, trees are marked on the ground, and where there are no trees, or natural boundaries, artificial marks are set up to distin- guish the survey. By these means, if the surveyor re- turns a d aught, different from the courses and distances actually run, the mistake is easily corrected. Should the surveyor commit an error in his return, it shall not affect the right of the party. Such cases have frequent- ly happened.
But the case is very different under the ancient prac- tice of making surveys under the proprietaries of Ma- ryland. Such surveys were merely ideal, and precisely fixed on paper alone. No trees were marked except the beginning boundary. Lord Baltimore's instructions, which have been read, clearly show us, what his inten- tions were, and that he was concluded only by the courses and distances returned. The survey was am- bulatory, not confined to a certain spot of land, but was governed by the variation of the compass, and was continually shifting. The courses and distances return- ed formed the survey, and determined on an exact admeasurement, the particular lands granted, as often as they were run. Those courses and distances alone were binding on the proprietor, and consequently on his patentee. It necessarily follows under our idea, that as the testimony of witnesses, or any other circum- stances shown in the cause, cannot establish a title to lands without the limits of the original survey as return- ed, that the plaintiff must fail in the present suit.
We mean, however, in thus giving our opinion, which we have taken some pains to form, to confine ourselves to the express case before us. It is not intended to affect other rights. Persons who have bought lands from plaintiff, even within the resurvey, may have ac- quired titles by their possessions and improvements, which should not now be shaken. The plaintiff suffered a nonsuit.
With an intention to show fraud or mistake, in the deputy surveyor, it was proved by an ancient witness, PART II. that the deputy surveyor did not return the first survey Of the ancient practice and customs of the Land Office, previous to the year 1765. as actually made by him on the ground; that the quan- tity of 10,000 acres was really contained within the lines of the lands run by him, including the lands in question, By force of the royal charter, William Penn, and his successors, as proprietaries, were the undoubted lords of the soil. They stipulated, however, with the pur- chasers under them, to extinguish the aboriginal right of the natives. They alone had this power. No indi- vidual, without their authority, could purchase of the and tliat upon making his plat, and finding the figure to be very irregular, he got displeased, and swore he would not cast up the contents, or return it in that form, and then reduced a number of lines into one, struck off five or six angles in different places, and made a new plat different from the courses and distances run on the land, | Indians; and the people themselves, by legislative acts,
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recognized, and aided them to enforce this important principle.
They had the unquestioned right to dispose of their lands in any manner they thought proper. But without settlement, a grant of an extensive territory would have been useless. If the condition of colonization had failed, the grant must have been resumed; and if the disposi- tion of the great founder had not been the most benevo- lent, a commanding necessity obliged him to encourage emigration and cultivation, and to part with his lands upon reasonable terms.
The officers of the Land Office were his officers and agents. The commissioners of property were controlled by his regulations and authority; and it will appear, that from the acts of these proprietary agents, many rights to land have sprung up from time to time, which have, not improperly, been termed inchoate, irregular, im- perfect, and equitable titles; founded not only upon warrants, surveys, and patents, but upon settlements. connived at, or acquiesced in, depending sometimes upon the situation of the proprietor's title, or the unset- tled state of his family, upon the supposed circumstance of the Land Office being shut, or encouragement given to settlers on or near controverted boundaries, and to promises. Hence also custom and usage of the Land Office from early times have vested interests, which have afterwards been confirmed by judicial decision, and recognized by laws. Thus in an instance which may be found in Kyle v. White, 1 Binney, 247, a pro- mise made to a trespasser, to induce him to move off of the unpurchased Indian lands, by secretary Peters, was considered as entitling the trespasser to a preference after the purchase.
Whatever uniform plan of settling the country and conveying his lands, the first proprietor may have con- templated, or devised, it must very early have been found impracticable on experience. At present no regular system can be traced upon the public records. The terms of sale were changed from time to time; and as the affairs of the Land Office were not familiar to the mass of the people, it is not to be wondered at, that the assembly, even in the year 1755, in an address to governor Morris, declare, "that the state and manage- ment of the Land Office is pretty much of a mystery." Votes of assembly, vol. 4, page 464.
Of First Purchasers, or Old Rights.
The original lists of first purchasers are recorded in the Land Offices. The privileges to which these were entitled, with respect to city lots, and liberty lands, and the price paid by them, and the quit rents to which they were subject, have been already stated. To these first purchasers, the conditions and concessions made in England, chiefly related. Wherever they desired to sit together, and their quantity amounted to five or ten thousand acres, they were to have their lot or town- ship cast together, &c., and in every one hundred thousand acres, the governor or proprietor reserved ten to himself, by lot, which shall lie but in one place. It has been already shown, that this related merely to the original purchasers.
Many of these original rights were long out standing, and several not surveyed until after the revolution, and probably, some few have been entirely abandoned. The subject is at this day intricate from a variety of causes. Many of the purchases appear to have been made upon speculation by persons who never came into the province; and transfers were made of parts or parcels of large warrants to different individuals. For these parcels separate warrants were again issued to survey the subdivisions to the under purchasers By such means, it has not :Infrequently happened that a considerable surplus has been surveyed beyond the amount of the original purchase. By the accumulation of old rights, by purchase, in one person, it has also happened, that entire squares of city lots, as appurte. nant, in early times have been granted to individuals,
with large appropriations of liberty lands, and it became almost a science to trace out original titles. From such cause is to be attributed the singular appearance of the original minutes of property, which exhibit a record of transfers and mesne conveyances in abstract, and pedi- grees, and even of intermarriages. It is not improba- ble, however, that in some cases, these may be valuable documents at this day.
In the minutes of the Board of Property, August 15th, 1765, there is a special order respecting old rights. The preamble suggests that great quantities of lands on such rights had been again applied for, and twice grant- ed, and, "The deputy surveyors are directed to send in to the surveyor general's office, all the surveys on old rights which they can discover not to have been yet returned-And all future surveys thereon to be return- ed in two months after made."
By the seventh section of what has been termed the divesting act, ante. vol. 1, page 481. all rights, titles, estates, claims, and demands which were granted by, or derived from the proprietaries, their officers, or oth- ers, duly commissioned, authorized, and appointed, or otherwise, or to which any person or persons, other than the said proprietaries, were, or are entitled, either in law or equity, by virtue of any deed, patent, warrant or survey; or by virtue of any location filed in the Land Office at any time or times before the 4th day of July, 1776, were ratified, confirmed, and established forever, &c.
By the 5th section of the act in the text, persons possessed of old rights, &c. were confined in locating the same to the lands already purchased of the Indians.
Of Quit Rents.
All quit rents were abolished by the ninth section of the divesting act before mentioned. Any observation respecting them, therefore, can have no further inte- rest than as they may be considered as a part of the history of the titles to lands as they stood under the proprietary government. -
It does not appear that any certain standard or rule was established with respect to quit rents at the first settlement of the province, except with the first pur- chasers, which was one shilling sterling for one hundred acres .- See votes of assembly, vol. 1, part 2, page 41.
Lands which were allotted to servants, who came over with the first settlers, and faithfully served out their time, were not liable to purchase money; the quit rent was therefore greater. The seventh article of the conditions and concessions runs thus, "That for every fifty acres that shall be allotted to a servant, at the end of his service, his quit rent shall be two shillings per annum; and the master, or owner of the servant, when he shall take up the other fifty acres, his quit rent shall be four shillings by the year; or if the master of the servant, (by reason in the indentures he is so obliged to do, ) allot out to the servant fifty acres in his own divi- sion, the said master shall have on demand allotted to him from the governor, the one hundred acres, at the chief rent of six shillings per annum."
When warrants were issued upon what were called the new terms, it appears by the minutes of the com- missioners of property, the price was five pounds for one hundred acres, and the quit rent sometimes a bu- shel of wheat, sometimes one shilling sterling. This latter was called the common rent. The new rent, and the most usual, was one penny sterling per acre. What- ever reservation was made, was stated in the warrant, as part of the contract.
In the commission of October 28th, 1701, to Edward Shippen, Griffith Owen, Thomas Story, and James Logan, as commissioners of property; authority is given to them to grant lands for such sums and quit rents, &c. as to them or any of them, should seem reasonable.
The same authority is given by the new commission of November 9th, 1710.
The assembly, in their address to the proprietor,
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when he was about to sail for England, September 20th, 1701,requested of him,"That the inhabitants or possess- ors of land may have liberty to purchase off their quit rents, as formerly promised. Votes of Assembly, vol. 1, part 1, p. 146.
In his answer, he tells them, "If it should be my lot to lose a public support, [ must depend upon my rents for a supply; and therefore must not easily part with them; and many years are elapsed since I made that offer, that was not accepted. Ibid. 149.
Some controversy, indeed, there was about this pub- lic support; and the assembly alleged that quit rents were originally agreed to be paid to the proprietor, on account of the extraordinary charge he would be at in the administration of the government, That he had sold lands to a great value, and reserved rents sufficient, in a moderate way, to maintain him or his lieutenant, answerable to their station. What if we add, say they, that we desire the proprietary would be content to live upon his rents, &c. Considerable altercation, and no little warmth took place upon this subject between go- vernor Evans and the assembly. The dispute, however, died away. The assembly continued to provide for the governors down to the revolution. See votes of as- sembly, vol. 1, part 2, p. 41, 45, 155; vol. 2, p. 10, 12, 15.
Of the six per cent. allowance
The allowance was originally ten per cent, In the address of September 20th, 1701, before mentioned, the assembly request, "That the ten acres in the hun- dred, may be allowed according to the proprietaries' engagements." I am very willing, answered the pro. prietor, to allow the ten acres per cent. for the ends proposed by law, and not otherwise.
The law referred to, was the law of property, made shortly before at New Castle, with which the people were dissatisfied, and some misunderstanding had taken place respecting it. The assembly, therefore, on the 9th of October following, (1701,) again request "That the misunderstanding about the ten acres per cent. be rectified; and the allowance for roads and highways be allowed to all lands whatever, whether already taken up, or to be taken up hereafter." On the 23d of Oc- tober, they sent a member to the governor, with the request, varied in this manner. "The assembly de- sires that the proprietary will be pleased to allow ten acres per cent, for roads, uneven grounds, &c, unto all persons, purchasers and renters, either taken up, or to take up: and for such as shall hereafter rent, five per cent. at least." The proprietor sent them the fol- lowing message on the 25th -"Friends, complaint ha- ving been made, that some persons had not the benefit of the law of New Castle, with respect to the allowances of ten per cent. I consented to allow the said ten acres per cent. according to the said law; but never intended to make myself debtor for those deficiencies which were not to be had; and understanding you look upon that law unequal, as giving to sume ten per cent. where there is overplus, and but two per cent. upon sur- veyed land, where no more is to be found; I am there. fore willing to allow or make good six per cent. to all persons, as well to those that want, as to those who do not want the same upon a re-survey." This did not meet the sentiments of the assembly ; and the amendment proposed by them to the bill of property was, " That whereas ten per cent. is allowed by the law made at New Castle, for roads, barren lands, uneven grounds, and differences of surveys unto all such persons who have overplus in their tracts; the same ten per cent. may be allowed unto all persons whatsoever, who have taken up lands by right of purchase, or on rent, or that shall hereafter take up by virtue of former grants; and that all persons hereafter purchasing may have five per cent."
ed in this province, the surveyor, that lays out the same, shall allow for roads and barrens, after the rate of six acres for every hundred acres to the owner of such lands, for which said allowance of six per cent. no rent shall be paid to the proprietary, his heirs and assigns!"
This act was repealed by the queen in council. Feb- ruary 20th, 1713; but the custom was established, and continued from that time to this day.
See votes of assembly, vol. 1, -part 1, p. 145, 148, 153, 161, 163, 164, and appendix 14.
Of Townships.
It appears to have been part of the plan of William Penn to have laid out the province into townships, of 5000, or of 10,000 acres, and to have surveys made within the respective boundaries of such townships; and that purchasers of large tracts might lie together; he accordingly introduced this clause into his warrants, " According to the method of townships appointed by me." This plan could not be long pursued. The clause in the warrants, however, continued long after the ob- ject of it ceased. It was omitted in the warrants for the lands in the purchase of 1784, but was not discon- tinued in the preceding purchases, until it was struck out by the present Land Officers, as having no present meaning, or utility.
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