Sproul against the Lessee of Plumsted and others

[Chambersburg, Friday, October 4, 1811.] Sproul against the Lessee of Plumsted and others. In Error. It is not necessary that a survey should recite the authority under which it was made; and where it does not, it is a matter of fact for the jury to decide whether it was made under any and what warrant. A survey of this description is therefore admissible in evidence after any warrant has been shown, under which the survey may by possibility have been made. This cause came before the Court upon a bill of exceptions to the opinions of the Common Pleas of Franklin. The defendant in error , brought an ejectment in that court for a tract of land in Hamilton township, and gave in evidence upon the trial, eight warrants for fifty acres each to William Plumsted, under whom the lessors of the plaintiff claimed title. Three of these warrants were for lands, generally in Hamilton township, dated the 25th December 1750. The other five were also for fifty acres each in different townships in the same county, equally indeseriptive with the others, and dated upon different days from the 1st September to the 21st December 1750. After this evidence was given, he offered to read to the jury a survey for 241J acres in Hamilton township,(the premises in the ejectment) made for the heirs of William Plumsted by John Armstrong deputy surveyor, and returned into the office of the surveyor general; but the return did not state the warrant or authority under which, nor the time *when, the survey was made, nor was it shown when the survey was returned into office. The defendant’s counsel objected to this evidence, exhibiting at the same time to the court a survey of 435 acres and 64 perches made upon a warrant of the 25th December 1750 to William Plumsted for fifty acres in Hamilton township, which had been returned and patented to one James Sloan; and they contended that the three warrants of the 25th September 1750 were but triplicates of one and the same warrant, and therefore, this being satisfied by the survey patented to Sloan, the plaintiff had shown no authority for his survey, without which it was not evidence. The court however permitted the survey to be read, and sealed a bill of exceptions. Chambers and Dunlop for the plaintiffs in error, argued that a survey was not evidence, unless the warrant or authority under which it was made, was produced, or its absence accounted for. Addison 127. The survey must have been made by virtue of a precedent delegation, or it must have been subsequently recognized by the proprietaries, to give it the character of an official act. Lessee of M’Kinzie v. Crow, 2 Binn. 105. Even a defect in the warrant, as the omission of the governor’s signature to it, is fatal to the survey. Lessee of Gripe v. Baird, 2 Smith’s Laws 154. There was then no ground laid for reading the survey in question. The three warrants for land in Hamilton township were of the same date, for the samé quantity, and equally destitute of description. They were triplicates of one warrant; and it was iucontestibly proved that this warrant had been surveyed, returned and patented to Sloan; of course the plaintiff’s survey could not rest on this foundation. The other warrants were for lands in other townships; and there was still less propriety in urging that the survey had been executed under any of them. The whole character of the survey was suspicous. It asserted no authority; it specified no time; and although it was upon file in the surveyor general’s office, no one could tell how or when it got there. It had not the slightest pretension to the'character of evidence. * Watts and Duncan for the defendant in error answered, that the opposite counsel had taken for granted the very fact in dispute, namely whether the warrants of 25th December 1750 were one or three. The jury were to decide it; and they were also to decide, whether the plaintiff’s survey had been made under any one of them. There was still a greater latitude for the evidence. The jury had a right to say, whether the survey had been made under either of the eight warrants; for notwithstanding the five called for lands in other townships, yet this survey, when returned and accepted under either of the five, would be as well authorized, as if the warrant had specified the township in which these lands lie. The question is not, what was the weight of the evidence, or was the survey completely connected with either of these warrants, but was it possible for the jury to say that the survey had been made under either of them. A slight ground was sufficient to introduce the survey. The informality of the return may be accounted for. Armstrong’s house wras burned in 1768, when the draft of the original survey was probably lost; and when another survey was made, the papers being lost, no mention was made of the warrant in the return. But in fact no warrant was necessary. Armstrong it is well known was agent for the proprietaries, and authorized to make surveys without previous warrants. Even if the survey had been suspicious, that was no cause for rejecting it. The jury were to judge of the circumstances of suspicion. Lessee of Dougherty v. Piper, 2 Smith’s Laws 155; Lessee of Nicholas v. Holliday and others, 2 Smith’s Laws 156. [MAJORITY — Tilghman C. J. Ye ates J. Brackenridge J.] Tilghman C. J. The bill of exceptions in this case is founded on a survey for the heirs of William Plumsted deceased, which was offered in evidence by the plaintiff, and admitted by the Court of Common Pleas. The exception to it was, that there was no proof of any warrant or authority for making it. Before the survey was produced, the plaintiff had given in evidence eight warrants for fifty acres each, to William Plumsted, issued in the year 1750. Three of these warrants were for land in Hamilton township, dated 25th December 1750, and the other for lands in other townships. *The survey in question was for two hundred forty-one and a quarter acres in Hamilton township, made and returned by John Armstrong deputy surveyor; but the return does not mention when the survey was made, or on what warrant or by what authority, nor did it appear at what time the return was made. The defendant gave evidence of a survey of 485 acres and 64 perches on a warrant to William Plumsted 25th December 1750, for fifty acres in Hamilton township, on which a patent was afterwards issued to James Sloan, and he contends that the three warrants for lands in Hamilton township, given in evidence by the plaintiff, were in fact but triplicates of one and the same warrant, on which the survey was made and patents issued to Sloan; and as all the other warrants called for other townships, he infers that neither of them could be properly applied to the survey in question, which consequently being made without authority, ought not to have been admitted in evidence. This argument was very proper to urge to the jury, but does not prove that the survey ought not to have been received as evidence. Whether there was but one or three warrants for lands in Hamilton township, was a matter of fact of which the jury were to judge. Consequently they were to judge, whether the survey in question was made on either of those warrants. Besides, it was proper they should judge whether that survey might not have been made on some other of Plumsted’s warrants, for although those warrants did not call for Hamilton township, yet if a survey of land in that township had been made on either of them, and been returned and accepted by the officers of the proprietaries, it would have been very good. Although the return by John Armstrong, does not mention by what authority the survey was made, yet that does not vitiate it. There are many titles founded on such surveys. When the return was made to the office of the surveyor general, the authority for making the survey would be inquired into, and if found to be sufficient, it would be accepted and the title completed by a patent. It was proper that the plaintiff should have been permitted to give his survey in evidence, in order that he might have an opportunity of satisfying the jury, that it was made on one of the warrants which had been given in evidence before. If the court had rejected the evidence, they have taken on *themselves to decide the matter of fact in dispute, that is to say, whether either of Plumsted’s warrants was applicable to the plaintiff’s survey. I am of opinion, therefore, that the Court of Common Pleas were right in receiving the evidence, and that the judgment should be affirmed. Ye ates J. I fully agree, that it was a matter of fact to be decided by the jury, whether the survey made by John Armstrong the deputy surveyor was done by proper authority or not. Eight general warrants indescriptive of particular lands were shown in evidence, which might possibly justify the survey. Under these circumstances the survey was properly received in evidence. Whether the verdict was correct or not, I say not; nor have we as a court of error the slightest shade of authority for setting aside the verdict of a jury as contrary to evidence. Brackenridge J. The principle is correct, that an authority to survey must precede, or the survey made must be ratified, to make it valid. It was a question of fact in this case whether there was an authority precedent, by the warrants shown, and therefore the survey ought to have been read that the jury might judge of it. Had there been no sort of warrant shown, on which the survey might have been made, the case would have been otherwise. The party would have been driven to show an acceptance in the office, or other evidence of ratification of what was done. In the case of a nonsuit the court may direct it where there is no evidence whatever; but where there is a scintilla of evidence it must go to the jury. So where evidence of one thing is necessary before evidence of another matter can be brought forward, the slightest first evidence may suffice to carry the second. Where there is no evidence whatever of the first, the second cannot go. The judgment of the Common Pleas must be affirmed. Judgment affirmed. [Cited in 10 S. & R. 327.]