Baker v. King

The opinion of the Court was delivered, by Chambers, J. The plaintiff, in support of this action of trespass for breaking his close, and digging and carrying away a large quantity of iron ore^ from a tract of unimproved land, gave in evidence a warrant to Wm. D. McKirnan, dated 6th August, 1844, with a survey made in Sept. 1844, for 59 acres 137 perches, embracing the land on which the alleged trespass was committed. David Stewart, under whom defendants claim, took out a warrant for the same land on the 7th August, 1844. It is in evidence that the written preparatory applications to be presented to the land office, were written with the certificates of the justices in the county of Indiana, on the 3d of August, for McKirnan and Stewart, Stewart having his prepared in the morning of that day, and McKirnan in the evening, when he Avas made acquainted with the intended application of Stewart, prepared earlier on the same day. Stewart entered a» caveat against the acceptance of the survey of McKirnan, alleging that the right to this land was in- him by virtue of an actual settlement, commenced in 1822, and without claiming under his Avarrant of the 7th August. The Board of Property, on the 2d March, 1846, decided in favor of the acceptance of the survey of McKirnan, who, on 5th of December, 1846, conveyed by deed to Elias Baker, the plaintiff. The defendants claimed under the said warrant to Stewart, which did not call for any improvement, and was reasonably descriptive of the land in controversy; and gave in evidence an ejectment brought by SteAYart,pending against McKirnan in April, 1846; a conveyance by Stewart to the defendants on 20th November, 1846 ; and a survey made for them by the deputy surveyor in December, 1848, for 49 acres and 24 perches. The Court; in reply to the third point submitted on part of the defendants, instructed the jury, if they believed that McKirnan, at the time he made his. application, knew that Stewart had [142] already made an application for the same land, that he acquired no right by said application, in hastening to the land office, with his papers in advance of Stewart. This instruction is now assigned for error by the plaintiff. The grants of land by this Commonwealth to individuals are founded on written applications describing the land; and if founded on a settlement, must state when the improvement commenced, with the oath of the applicant that no other office right had been issued for the same, under which he claimed title, with the certificate of two justices. This is the requisition of the law, for the protection of the Commonwealth in its claim of interest on the purchase-money. The preparation of the intended application is in the country before two justices, and is the act of the individual, under his control, in fieri, forming no contract or an inception of title until filed in the land office, and the office fees and purchase-money paid to the Commonwealth. Where there is an antecedent settlement, if prosecuted and continued, it constitutes an inception of title, to be regarded and protected from its commencement. This species of title is, from necessity, to be established by parol; and as it consists of acts done on the ground, visible, permanent, and notorious, which are notice to the neighborhood as well as inquirers, the public, applicants, or purchasers, need not be misled by reasonable vigilance. If an individual should take out a warrant for land thus appropriated by the settlement right of another, it is at his peril; and if in ignorance of the prior right, that ignorance will be intended to he wilful, and will afford him no equity. Public policy and the security of title require that the origin of title from the Commonwealth should not depend on parol evidence, except in cases of settlement right, where it is ex necessitate rei. In case of an improvement, the first stroke of the ax, or other act on the ground, determines the residence, if prosecuted with diligence. A party having it in contemplation to apply to the land office for a warrant, may have his written application prepared in the county of his residence, and use or withhold it as he may think proper. It constitutes in itself no contract, but an intended application for a grant unknown to the officers of the Commonwealth until it is filed. Is another individual, who on the same day has his intended application prepared in writing for the same land, to be kept at bay because another had an hour before prepared a like application, and of which the second was only informed when he was having his prepared? The Commonwealth can know nothing of this priority of preparing the intended applications between individuals at a distance. It may be before different justices, and at places remote from each other. But it is alleged that one who is making his preparations to apply for the land, and while in the act of doing it is informed that another has on the same day had a like [143] application prepared, is acting maid fide in pursuing his application any further for the same land. Both individuals were bound to know that the writings prepared bound neither of them; they might be pursued or abandoned at their pleasure. In such case, we think, if there was not fraud or deception, the application first filed in the land office constituted the inception of title; that should obtain the first warrant and prevail between the parties, and would be a proper application -of the maxim, “ vigilantibus non dormientibus leges subserviunt.” An improvement made or a warrant obtained for land, with actual knowledge of even an imperfect and unreturned survey of the same land on a shifted warrant, will be postponed, though there is no contract between the state and the holders of such survey before the return: Keble v. Arthurs, 3 Bin. 29. Yet in such case, the improver or holder of the junior warrant is bound to know the usage of the land office in allowing the shifting of warrants and the acceptance of the surveys made on them, where they did not conflict with the rights of others, acquired before a knowledge of such survey. The survey made on such shifted warrant is by a surveyor who is a public officer and the agent of the state, whose office would furnish the information to any who desired it of the appropriation of the land by a survey on the ground, to satisfy the shifted warrant. A conflict between an improver and the holder of .a warrant as to priority in the origin of their respective titles, may, from the nature of the title, call for parol evidence to establish the precedence, and with respect to which we do not impugn the decision of this Court on that point in the case of Mix v. Smith, 7 Barr 75. In that case, the improvement was commenced three days after the proposed application and jurat before the justices, and with the knowledge of the improver that there was such application for what was vacant land, and in respect to which the conduct of the settler under the circumstances was surreptitious. But we do not feel disposed to carry the principle there adopted any further, or extend it to a conflict of paper title, attested by warrants of different dates, the evidence of priority of title in which is that furnished by the records of the land office, and without making that priority dependent on parol evidence of precedence in their measures of preparing their intended applications in the country, or in the degree of knowledge which one may have had of the intention of the other. In such conflict between warrant-holders, not claiming under an antecedent improvement, the safest rule for the security of title and to avoid litigation, is not to go behind the dates of the warrants and open a door for parol evidence, the tendency of which would be to unsettle the priority of official grants, as well as all reliance on them as evidence of title. In this ease, there is a material circumstance in evidence in [144] favor of the title of the plaintiff that was not regarded or noticed by the Court below, that he was a bond fide purchaser .of the McKirnan warrant and title, and for which a deed was made to him after the decision of the Board of Property against the claim of Stewart, and without any notice of claim under the warrant to Stewart, or in the preparatory writings to obtain said warrant. The plaintiff had, under the McKirnan warrant and survey, a title prior and better than that derived by defendants under the warrant to Stewart; and the former warrant gave to the plaintiff a constructive possession of the land in controversy, that would sustain this action of trespass, if there were not an actual adverse possession clearly made out on the part of the defendants. It is well settled that the owner of wild and uncultivated land is to be deemed in possession so as to maintain trespass until an adverse possession is clearly made out: Matthew v. Trinity Church, 3 Ser. & R. 513; Ward v. Taylor, 1 Barr 238. In the instruction of the Court below to the defendants’ third point, which has been recited, and which ruled so decisively against the plaintiff below as to bar his recovery with the jury, this Court is of opinion there was error. From the opinion expressed, we deem it unnecessary to remark on the other errors assigned specially, as they were not pressed in the argument, and the more controlling question has been fully reviewed and decided. For the misdirection referred to, the judgment of the Court below is reversed, and a venire facias de novo awarded.