M'Kelvey v. Truby

The opinion of the court was delivered by Huston, J. — The plaintiffs here were plaintiffs below, and showed a warrant, survey and patent to James Glentworth, and a regular chain of title to Rebecca M’Kelvey for one undivided half of the tract, and to David M’Kelvey for the other half. These two intermarried and thus owned the whole. About twenty-five years before this suit, David M’Kelvey came with his wife and settled on this tract, and soon after brought a surveyor to run round it, and show him his lines. The surveyor found the line adjoining the disputed ground, but as he had a draft with a wrong course and distance on the next line, they went no farther. Soon after, Col. Orr, a surveyor of known skill, was brought, and he began and ran round the tract so as to leave the line in question for his last course; he found all the lines, and this last one to the river as it had been found by the first surveyor. All this was [325] done in the presence and at the instance of David M’Kelvey. The lines of a tract in the name of Davidson, near this, were run and found, and it appeared there was some land between the two tracts not within the lines on the ground of either survey. I forgot to mention that Col. Orr made a calculation, and M’Kelvey’s survey contained a little more than was called for in his patent. A third surveyor was on the ground and found this same line. It was of the right age, and the course and distance agreed with his draft. A Mr Spear and Caldwell took out a warrant for the space between the Glentworth and Davidson tracts. There were more than enough of witnesses who heard M’Kelvey say that was his line; he cleared to it part of the distance; and after the part now in dispute was settled, he showed Truby and others his line; said he came that far, and where there is timber on both sides of it, said they must not cut any on his side of it. He showed his line to a person proposing to purchase Truby’s, or a part of it. There was also full proof that David M’Kelvey, now deceased, knew of this piece of land and called it vacant long before any warrant was taken for it. The warrant was taken by Spear and Caldwell, in the name of Caldwell, who got a patent in 1830, and sold to Robison and Rohrer for $133, and they sold to Truby, who soon after began to improve. Old Mr M’Kelvey wished him luck of his purchase; said he was glad he had bought it. Old Mr Truby’s sons came on to it, each built a house, one of them a barn, and the other a blacksmith shop: the buildings at the time this suit was brought were estimated at from $700 to $900. James and "William M’Kelvey were at the raising of their buildings, and as the houses were near, Mrs M’Kelvey was there every week and sometimes every day; all very friendly. Old M’Kelvey didd; and there was some coal found in the hill, and it is near the town of Kittaning; and somehow it was discovered that the Davidson and Glentworth surveys as returned in the surveyorrgeneral’s office, call for adjoining each other; and this suit was brought — old Mrs Rebecca M’Kelvey declaring that she would not have brought it, but the boys would have it so. Some of the improvements were made in sight of her, before and after the death of her husband. It was assumed in the court below, and argued here, that the land in question was embraced in the Glentworth survey; it must then have been plotted in, for the lines of the age of the survey exclude it: but I shall suppose this to have been the case, and that although added to the survey by protraction, M’Kelvey might once have held it. The judge very properly left all the facts to the jury, and stated the law correctly, as I consider it settled in this State and elsewhere. I shall refer to only a few cases: M’Cormick v. M’Murtrie, (4 Watts 195), where a man encourages another to settle, and to go on and expend money and labour, he shall not afterwards take the land from the improver, though he has an older and better title. Epley v. Witherow, (7 Watts 163), if a [326] man having a right stands by and sees land sold as the property of another, and gives no notice of his claim, he ought to be and will be postponed, though he shows a better title. This opinion was delivered by Justice Kennedy, who, in page 168, has cited very many authorities. In Carr v. Wallace, (7 Watts 394), it is said, “ there is no principle of equity and public policy better settled than this, if one knowingly though passively suffers another to purchase and spend his money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person.” 4I will add, that it is possible the plaintiff never had any right to this land. I fully admit the general rule, that where two surveys call to adjoin each other, they shall adjoin. Generally the difficulty has arisen where the line of one survey has been run, and the survey next made calls for it as one of its lines; that shall be the line of the two surveys, though it gives more land than the surveyor intended. Wiedman v. Filmsley, a case twice tried, once before Judge Walker and again before Tilghman, was this: William Maclay, in making a survey for Janet Sharon, ran and marked the western line, and then laid a survey adjoining it for B. Wistar. At night, when he calculated Janet Sharon, he found he had included on a 300 acre warrant, 450 acres. This was soon after the proprietary regulation, forbidding a deputy-surveyor to return above ten per cent, above the quantity called for in the warrant. Next morning he sent a person to measure back a certain distance from the western corner of Janet Sharon, and run a new western line, throwing out 120 acres; and this was done, and the line marked: but Mr Maclay forgot this, and returned the Wistar and Sharon survey as adjoining each other. This was proved by Mr Maclay in court, and a warrant taken twenty years after held the 120 acres. In both courts a distinction was taken between the case where only one line was run and that intended to be the line of both surveys, and the case where each survey has its own lines distinctly marked, and those lines 40 or 60 more perches apart. The case was governed by the parol proof of Maclay. I lost the cause in both courts; and, as often happens, was not then nor yet entirely satisfied with affecting the returns of survey by parol evidence : but I mention this to show the plaintiff' that he may possibly have been mistaken on more than one point as to his rights. Judgment affirmed.