Barton v. Smith

The case was held under advisement until this day, when- the opinion of the court was delivered by Rogers, J. Two questions have been presented to the court, which have been argued with great zeal and earnestness: 1. Whether a survey, made before the warrant issues, be void; and, 2. Whether the payment of the purchase money to the commonwealth, where the warrant issued after the survey, the acceptance of the survey, and the order of the Board of Property of the'20th of April, 1795, validate the title of the plaintiffs. The plaintiffs claim the land by virtue of three warrants, bearing date respectively the 1st of February, 1794. The surveys, which purport to have been made the 24th and 25th of May, 1794, were returned, and accepted in the office of the surveyor general the 29th of April, 1795.- The plaintiffs’ ancestor, William Barton, paid the purchase money the 14th of June, 1794, and the surveying fees, as appears by a paper produced at the trial, the 19th of April, ,1794. After the verdict, we are to consider it as settled, that the surveys were made before the warrants came to the hands of the deputy surveyor, to whom they were.directed. It is contended, that a survey so made, is contrary to’the plain provisions of the act of the 8th of April, 1785, and particularly tó the ninth section; and, on the other hand, it is insisted, that the act does not apply to .this land, but to the purchase of 1784; and, that the payment of the purchase money, and the. acceptance ' of the survey, estop the commonwealth from denying the plaintiffs’ title. There is, perhaps, no absolute necessityof deciding the much agitated question, whether the ninth section of the act of the 8th of April, 1785, be. general, or confined to the purchase of 1784. Independently of the doubts expressed by some of our predecessors, for whose experience and judgment, in all things relating to titles [406] to real estate, I have the highest respect, I am inclined to believe) the legislature intended to establish a general system, operating alike upon all the lands belonging to the commonwealth. Some of the sections of the act, doubtless, have relation merely to the act of 1.784; and to me it is equally plain, that others have a much more extensive operation, and thi's opinion is grounded on the preamble to the act,-which is the key to its construction, the import of the sections themselves, the mischiefs, which were felt, and were general, and not merely confined to lands within that purchase, and the remedy provided by the legislature. However that may be, yet it appears to me, that independently of legislative enactments, a .survey, made previous to a warrant, is void, on general common law principles; because, made without any authority or direction from the government, in whom the power to grant is vested, to the deputy surveyor. The mischief which resulted from surveying lands, without authority, was felt at an early day; for it had the effect of retarding the settlement of the country, an object of primary importance, and defrauded the proprietaries, by preventing thé sale of their lands, To remedy the evil, which in practice, prevailed to a considerable extent, as early as the 3d of October, 1765, the proprietary government made an prder, by which they expressly prohibited the deputy surveyors, from surveying any of the proprietaries’ vacant, or unappropriated land whatever, on any ticket or order from any person but the surveyor general; nor-were they to survey any land, unless they had a copy of a regular ivarrant, or application, numbered, and to them directed by the surveyor general himself, or by his order. The same policy, and for the same reasons, has been pursued under the' commonwealth, as appears from the act of the 8th of April, 1785, and of the 3d.of April, 1792. A survey, therefore, after this proprietary order, and in contradiction of the policy of the acts of assembly, without warrant, could produce no benefit to him who acted knowingly against law. Whether under the proprietary government, a survey, although made without authority, returned to the office, accepted, and money paid, with a full knowledge of all the circumstances by the proprietary agents, would give title, may be an inquiry of more curiosity than use, as since the divesting act of the 27th of November, 1779, a different state of things has existed. As the proprietaries were the absolute owners of the soil, with power to dispose of the lands in such manner, and upon such terms as they might deem most advantageous to themselves and the public, a subsequent ratification, by them, with full knowledge of the facts, would, upon the ordinary-principles of principal and agent, cure any irregularity in the sale. The proprietary servants had not merely a limited, but a general authority, which was a power necessary for the correct and proper discharge of their trust; and hence, I believe, there is no instance of their refusing to ratify the acts of their agents, Who were in the habit of dispensing with the general rules of the office, where no [407] injustice had been done, or fraud intended. Hence, there was an implied understanding, that in the purchase of lands from the agents, the vendees were dealing with the principals, and upon the same terms as if they were personally present. To say, therefore, that the title was not valid, where the survey had been accepted, and money paid, with a full knowledge of all the circumstances, and without any intervening right, would have been a fraud upon the purchasers. But since the revolution, and the subsequent appropriation to the use of the commonwealth of the proprietary vacant land, circumstances have entirely changed. The officers of the land office, under the state government, are as much bound by the acts of assembly, as any other citizens. They derive their authority from the law, which they may construe, but cannot alter. A uniform practice of the land office is a strong evidence of the law, to which the courts have always paid great respect, particularly where a difference in construction, where there is room for it, would unsettle estates; but that they can disregard the plain injunction of an act of assembly, is what cannot be permitted. It is contrary to the theory of our government, that they should have a dispensing power, and in this consists the difference in the usages of the present, and the proprietary government. The court are, therefore, of the opinion, that the survey being made without authority, is void; and, that the receipt of the purchase money, and the acceptance of the survey, do not render valid the title of the plaintiffs. If Mr. Barton and the officers of the land office acted under a mistake, it is a strong case for relief, by an application to the legislature, who alone can refund the money, or cure the defect of title. The legislature alone, stand in the place of the proprietaries, with full power .to relieve the plaintiffs, if they have sustained injury. Judgment affirmed.