French v. Seely

The opinion of the Court was delivered by Rogers, J. The only question submitted to the decision o'f the court is the conclusive nature of the decree of the board of property. In answer to the defendant’s title, which was% founded on an actual settlement, warrant and survey of the 30th of July 1831, the plaintiff gave in evidence a caveat against issuing a patent to the defendant, Seefy, a decision in favour of the caveators, under whom the plaintiff claims, and then requested the court to charge the jury, that the decision of the board of property, and his neglecting to bring an action of ejectment within six months after such decision, were conclusive against any title he, Seely, had under his warrant and improvement right, at that time. This direction the court refused to give, and of this the plaintiff complains. The eleventh section of the act of the 3d of April. 1792, as is held in Shoenberger v. Becht, 5 Watts 194, is an act of limitation, and is applicable to all vacant lands in the commonwealth; and if an action of ejectment b.e not brought within six months after a decision by the board of property, he against whom the decision is made is forever barred. 'The authority of Shoenberger v. Becht is admitted, but a distinction is attempted., because in that case both parties claimed under warrants and surveys, and in this one party claims by virtue of an improvement. But we do not perceive that this can make any difference in principle, for in this instance the board of property decided in favour of caveators, and direct a warrant to issue for the'lands in dispute to the plaintiffs, on their paying the purchase money and fees, agreeably to law. This is in effect deciding that French was entitled to a patent on his complying with the decision of the board of property, by payment of the purchase money and the fees of office; and in compliance with the decree of the board French took out his warrant on the 23d of July 1835, and the commonwealth granted him a patent for the land in controversy on the 30th of October 1835. The action of ejectment [294] is in the nature of an appeal from the decision of the board of property on the caveat. If the party against whom the determination of the board is, does not think proper to pursue the remedy, which is plainly pointed out in the act, he has no right to complain that the title of the successful party shall be deemed full and perfect, and as such, conclusive of the right against all parties and privies. It is no slight recommendation to the decision in Shoenberger v. Becht, that it tends to encourage the settlement and improvement of the country by putting an end, as speedily as possible, to all controversies in respect to those imperfect rights which manifestly stand on a different footing from other titles in this state. It would be intolerable, that a settler in whose favour a decree is had, without appeal, and who had made valuable improvements, should be turned out of possession by an unsuccessful party, who neglects or refuses to enter his appeal in the manner prescribed: but this consequence is inevitable, unless the settlers are embraced within the provision of the act which limits the ejectment to six months: after that period the settler has a right to consider a claim of the opposite party abandoned. Judgment reversed, and a venire de novo awarded.