Calhoun's Lessee v. Dunning

By the Court. — We can never acquiesce in an attempt so manifestly calculated to evade the truth and justice of the case. Shall it be in the power of a party, by suppressing a deed ; or by employing the name of a trustee; to avoid the legal effect of a judgment rendered against him ? In the action of tresspass, Caruthers pleaded liberum tenementum, as to the very lands now claimed by Calhoun ; and Calhoun has never controverted his right. It is plain, therefore, that Calhoun’s name is now employed, for the use of Caruthers ; and that the parties are really, though not nominally, the same, in both suits. Objection overruled. II. In the charge to the jury, it was stated— By the Court. — Blunston’s licenses have always been deemed valid ; and many titles in Pennsylvania depend upon them. The equitable right acquired by the lessor of plaintiff, under a license, has been perfected by a survey and patent; so that he clearly possesses a legal title to the land in dispute. On the other hand, the defendant has no office-right, but rests his pretensions on an early possession, the exclusion of the disputed *land in the resurvey of 1764, and the award and judgment in the action *- of trespass. Of the equitable circumstances, the jury will judge, with this remark from the court; that a mere improvement right ought never to be rendered effectual in favor of a settler, when it commences subsequent to the existence of the legal right, regularly vested in another. The great objection, however, to the plaintiff’s recovery, arises from the award and judgment. To be sure, an award cannot give a right to land ; but a report of referees will settle a dispute about land, either in an ejectment, or in an action of trespass. In the case of Fox's Lessee v. Franklin, a similar report has been made, and affirmed. Indeed, such a report is more operative than a verdict: for a verdict in ejectment is not conclusive ; but when parties choose to adjust their disputes amicably, they generally agree, that the award shall be final; and under such an [106] agreement, neither of them can hope again successfully to agitate the same points. Under this charge, the plaintiff suffered a nonsuit, (a) Footnotes [(a)] In Duer v. Boyd, 1 S. & R. 213, Judge Yeates, who had been of counsel in the case of Calhoun v. Dunning, said, he was strongly inclined to think, that implicit confidence was not to be placed on the accuracy of the report of it. The case of Dunning v. Caruthers, 4 Yeates 13, appears to have been an action for the same land, which was in dispute in Calhoun d. Dunning, and as similar questions must have arisen in both suits, there is a great discrepancy between the two reports.