Kirk v. Smith ex dem. Penn
22 U.S. 241 (1823)

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U.S. Supreme Court

Kirk v. Smith ex dem. Penn, 22 U.S. 9 Wheat. 241 241 (1823)

Kirk v. Smith ex dem. Penn

22 U.S. (9 Wheat.) 241


The act of Pennsylvania of 1779 "for vesting the estates of the late proprietaries of Pennsylvania in this commonwealth" did not confiscate lands of the proprietaries which were within the lines of manors, nor were the same confiscated by the act of 1751 for establishing a land office.

The statute of limitations of Pennsylvania of 1705 is inapplicable to an action of ejectment brought to enforce the unpaid purchase money for lands of the proprietaries within the manors for which warrants had issued. Nor is the statute of limitations of 1785 a bar to such an action.

This was an ejectment brought by the defendant in error in the court below to recover the possession of certain lands in York County in the State of Pennsylvania.

On 4 March, 1681, Charles II granted to William Penn, the ancestor of the lessor of the plaintiff below, that tract of country which now constitutes the State of Pennsylvania. The grant contains special powers to erect manors and to alien the lands, with liberty to the alienees to hold immediately of the proprietor and his heirs, notwithstanding the statute of quia emptores.

On 11 July in the same year, William Penn, having interested many persons in his grant, agreed with "the adventurers

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and purchasers" in England on "certain conditions and concessions" which, being for their mutual advantage, were to be obligatory in the future management of the property and settlement of the province. The 9th of these conditions is that "in every 100,000 acres, the governor and proprietary, by lot, reserveth ten to himself, which shall lie but in one place." In the year 1762, a warrant was issued for the survey of the manor of Springetsbury. This warrant recites a former survey of the same land in 1722 as a manor; states the general outlines of such former survey, and directs a resurvey. This resurveying was made and returned into the land office in 1768, where it has remained ever since. This resurvey included the lands claimed by the plaintiffs in error, which were held under warrants, of which the following is a specimen:

"Pennsylvania, ss: BY THE PROPRIETARIES."

"Whereas, Partholomew Sesrang, of the County of Lancaster, hath requested that we would grant him to take up two hundred acres of land, situate between Codorus Creek and Little Conewaga Creek, adjoining the lands of Killian Smith and Philip Heintz, on the west side of the Susquehannah River, in the said County of Lancaster, for which he agrees to pay to our use the sum of fifteen pounds ten shillings, current money of this province, for each hundred acres, and the yearly quit-rent of one-halfpenny sterling for every acre thereof."

"These are therefore to authorize and require you to survey or cause to be surveyed unto the

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said Bartholomew, at the place aforesaid, according to the method of townships appointed, the said quantity of 200 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 Bartholomew fulfill the above agreement within six months from the date hereof, shall be valid; otherwise void."

"Given under my hand and seal of the land office by virtue of certain powers from the said Proprietaries at Philadelphia this eighth day of January, Anno Domini one thousand seven hundred and forty-two."


"TO WM. PARSONS, Surveyor General"

In virtue of this warrant, a survey of the land claimed by Caleb Kirk, one of the plaintiffs in error, was made on 12 October, 1747, in favor of Jacob Wagner, the then holder of the warrant by various mesne transfers. The title was regularly deduced by various conveyances from Wagner to Kirk, accompanied with possession. No grant was ever issued for the land. Ten pounds, a part of the consideration, were paid about the date of the warrant, and there was no proof of the payment of the residue. It appeared to have been the usage of the proprietaries not to insist upon the terms of the contract, by which the survey was declared to be void, unless the agreement was fulfilled within six months from the date of the warrant, and large arrearages of purchase money remained due after the surveys were made

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both within and without the manors. The only distinction appears to have been that the reserved lands were sold by special contract, and the lands not reserved were sold at stated prices.

At the commencement of the war of the American Revolution, the proprietary went to Great Britain, where he remained, and in the year 1779 the Legislature of Pennsylvania passed an act entitled "An act for vesting the estates of the late proprietaries of Pennsylvania, in this commonwealth." The ejectment was brought in the year 1819, and on the trial of the cause the question whether the land in controversy was included within the lines of the manor of Springetsbury, as surveyed under the warrant of 1762, was left to the jury, which found that it was included within those lines. The opinion of the court below was that if the land was within those lines, the right of the plaintiff below was excepted out of the general operation of the act of 1779, and was not vested in the commonwealth. The court also instructed the jury that the statute of limitations of 1705, commonly called the "seven years law," was inapplicable to the case. To these instructions the defendant's counsel excepted, and a verdict and judgment for the plaintiff having been rendered in the court below, the cause was brought by writ of error to this Court.

Page 22 U. S. 256

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