Paxton v. Griswold
122 U.S. 441 (1887)

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U.S. Supreme Court

Paxton v. Griswold, 122 U.S. 441 (1887)

Paxton v. Griswold

Argued May 5-6, 1887

Decided May 27, 1887

122 U.S. 441

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus

In Pennsylvania, a private survey cannot be received in evidence for the purpose of making out a title from the proprietaries, even though it may have been referred to in other surveys, and parol and circumstantial evidence is inadmissible to establish such a survey.

The nonreturn of a survey to the land office in Pennsylvania for one hundred and thirty years is proof of abandonment.

The rules adopted in the land office in Pennsylvania in 1765 made no alteration as to returns of surveys, which before that date were required to be retained to the land office in order that it might appear by the records of that office what lands were alienated and what not.

In Pennsylvania, unless a survey is returned to the land office in a reasonable time, which time has been fixed by the courts of that state at seven years, it is regarded as abandoned.

Ejectment. Verdict for plaintiffs, and judgment on the verdict. Defendants sued out this writ of error. The case is stated in the opinion of the court.

Page 122 U. S. 442

MR. JUSTICE BRADLEY delivered the opinion of the Court.

This is an action of ejectment for 405 acres of land in Cumberland County, Pennsylvania, brought by the heirs at law of John Griswold, the defendants in error, against George W. Paxton and others, plaintiffs in error, to which the defendants below pleaded not guilty. The cause was tried at Philadelphia before Judge McKennan, and the jury, by direction of the court, found a verdict for the plaintiffs below, and judgment was entered accordingly. That judgment is now before us for review. The questions of law in the case arise upon a bill of exceptions taken at the trial, which shows the following proceedings:

The plaintiffs, besides showing by certain depositions that they were the heirs at law of John Griswold, adduced in evidence, 1st, a warrant granted to him, dated May 23, 1848, for 400 acres of land, adjoining lands surveyed to other persons named, situate in the Townships of Dickinson and South Middleton, in the County of Cumberland, acknowledging payment for the same to the treasurer of the commonwealth; 2d, a survey made on said warrant, dated December 26, 1853, containing 405 acres 138 perches, returned into the land office; 3d, a patent to John Griswold for the said land, describing the same according to the plot of the survey; 4th, the writ of ejectment issued in the cause, for the purpose of proving that the defendants were in possession of the land claimed in the writ.

The defendants then made the following offer: A. warrant to Thomas Cookson, dated 26th August, 1751; B. certificate

Page 122 U. S. 443

of payment of purchase money by Cookson on 27th August, 1751.

They also offered to prove that a survey was actually made immediately after the date of the warrant, and 1,264 acres located upon it.

That this location and survey was known to the proprietaries, and recognized and approved by their officers.

That a subsequent warrant was issued by the proprietaries, calling for this location in favor of Cookson.

That this land was assessed for taxes in 1765, in 1770, and subsequently.

That the same land was conveyed by different deeds and by various legal proceedings down to the year 1846, when it vested in Geisse and Kropff, who mortgaged it to the Farmers' and Mechanics' Bank of Philadelphia to secure part of the purchase money.

That the land was sold on the mortgage on 13th November, 1849, purchased by the said bank, and by them conveyed to the defendants and those under whom they claim.

That Griswold, under whom plaintiffs claim, was a clerk in the employ of Geisse and Kropff, and made an application in 1848 for this land, and therein set out that it was for the use of Geisse and Kropff.

That Griswold left the state immediately after that date, 1848, and never returned, and the title by return of survey and by patent was completed by the defendants in the name of Griswold, because it was the custom of the land officer at that day to issue the patent in the name of the applicant, Griswold having died in 1860.

This offer was objected to by the plaintiffs on the following grounds, to-wit:

That no survey was ever made upon it by any proof that is adduced before this Court in any shape or form by any official; that the offer does not propose to show an official survey, or survey made by direction of the proprietaries; that any other survey is immaterial and irrelevant in this case; that finding lines of an old survey upon the ground does not prove that they are made by official authority or that they were any more than trespasses upon the land of

Page 122 U. S. 444

the proprietaries; that such a survey unreturned gives no right to a warranty under the proprietaries claiming land by virtue of a warrant issued under the proprietary system; that under the act of 1784, no more than 400 acres could be surveyed upon one warrant, and that a survey made prior to the act of 1779 was never returned into the land department. Conceding that they had the right to perfect their title under the act of assembly, they could not have surveyed or patented under that survey more than 400 acres.

Further, that the defendants cannot set up an equitable title in this action.

The court admitted A and B; the rest of the offer was rejected. For the rejection of the rest of their offer, the defendants excepted.

The defendants then put in evidence (A) the warrant to Thomas Cookson, which was as follows:

"A."

"By the Proprietaries. Pennsylvania, ss:"

"Whereas Thomas Cookson, of the County of Cumberland, hath requested that we would grant him to take up one hundred and fifty acres of land on a branch of Yellow Breeches, in the said County of Cumberland, for which he agrees to pay to our use at the rate of fifteen pounds ten shillings, current money of this province, for one hundred acres, and the yearly quit-rent of one-half penny sterling for every acre thereof, these are therefore to authorize and require you to survey, or cause to be surveyed, unto the said Thomas Cookson at the place aforesaid, according to the method of townships appointed, the said quantity of 150 acres, if not already surveyed or appropriated, and make return thereof into the secretary's office in order for further confirmation, for which this shall be your sufficient warrant; which survey, in case the said Thomas Cookson fulfill the above agreement within six months from the date hereof, shall be valid; otherwise void."

"Given under my hand and the seal of the land office, by virtue of certain powers from the said proprietaries at Philadelphia,

Page 122 U. S. 445

this twenty-sixth day of August, Anno Domini one thousand seven hundred and fifty-one."

"JAMES HAMILTON [Seal]"

"To Nicholas Scull, Surveyor-General."

The defendants also put in evidence (B) the following evidence of payment of purchase money by Cookson, to-wit:

"B."

"(Certified Extract from Ledger of Department of"

"Internal Affairs of Pennsylvania)"

Thomas Cookson, Dr.

1751

Aug. 27. 44. To land (2 W. S.) on Yellow Breeche

Creek . . . . . . . . . . . . . . . . . . . 43

1874

Aug. 21. 216 a's 31 p's pat. to the Mt. Holly Paper Co.

at vo. . . . . . . . . . . . . . . . . . . 86119

Contra, Cumberland, Cr.

1751

Aug. 27. 44. By cash ten pounds &

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