Boyles against Johnston's Executors

Boyles against Johnston’s Executors. Pittsburg, Saturday, September 18. The field notes of ^ shewing1» sura warrant in the as ad-found in the p*tyCsurveyor, on which A’s name was indorsed in the hand writing surveyor, — ail th.es?. PaPers ,ad“ missible in evidence to shew a or IN ERROR. THIS was an ejectment in the Common Pleas of Indiana, for 213\ acres, which the executors of Johnston, the plaintiffs below, claimed under a warrant of the 8th December 1774, in favour of Stephen Porter, for 200 acres on Stoney Run. On this warrant a survey was made on the 24th November 1775 by Joshua Elder, deputy surveyor, for 213^ acres. On the 1st March 1782, Porter conveyed to Johnston the testator, who obtained a patent from the Commonwealth. The defendant claimed under an application dated the 3d April 1769, and signed by John Pomeroy in the name of John Stephenson, for 300 acres of land on the north side of Black- * 7 lick about two miles from the fording, which he produced, together with a copy of the location for the land, in sorils name. No survey of this tract was ever returned to the land office; but the defendant proved that in the year 1772, a cabin was built upon the land in dispute by one Robert Reed, and about five or six acres of land deadened; that Pomeroy bought the improvement of Reed, and placed one Milligan upon the land, who improved it for him in the years 1775 and 1776; and that Pomeroy in his life time had receipts for the surveying fees paid to Joshua Elder, which had been lost, and had requested Thomas Allison about 20 years before the trial, to procure a tenant for the land. In order to prove a survey of the land in dispute for Pomeroy, under the above location, the defendant’s counsel then offered in evidence, successively, the following papers: 1. A manuscript book containing the field notes of Joshua Elder, deposited in the office of the deputy surveyor of the district, and remaining there, by which it appeared that this land was surveyed for Pomeroy on the 22d April 1773. 2. A warrant in the name of Samuel Moorehead, dated the 24th June 1785, calling for John Pomeroy’s land as adjoining. 3. An old draught of a survey found in the office of the deputy-surveyor, on which the name of John Pomeroy was endorsed in the hand writing of Joshua Elder, and on which the name of Stephen Porter was also endorsed under the name of Pomeroy. The Court rejected them all, and sealed a bill of exceptions. ' Kelly and Reed for the plaintiff in error, relied on Hubly’s Lessee v. Chew , and Sprout v. Plumsted’s Lessee . Forward, contra. 4 Smith’s Laws 257. 4 Binn. 192. [MAJORITY — Tilghman C. J.] Tilghman C. J. after stating the facts, proceeded as follows: If this land was actually surveyed for Pomeroy, and improperly returned by the deputy surveyor on Porter's warrant, and if Pomeroy had taken possession, insisted on his title, and never relinquished it, then there would have been an outstanding title which would have barred the plaintiff’s recovery, even though the title of the defendant had not been Connected with that of Pomeroy. Whether it was so connected, does not appear by the bill of exceptions, and therefore we cannot suppose that it was. If as the defendants’ counsel now say, the connection was proved, it ought to have been inserted in the bill. The papers rejected by the Court seem to have been material for the establishment of Pomeroy's title. Such papers have been received in similar cases. The field notes of the deputy surveyor were admitted in Hubly's Lessee v. Chew, 2 Sm. Laws 257; and it is evident that the old draught endorsed John Pomeroy, must have been very material to shew that the survey was originally made for Pomeroy. Such a draught was given in evidence without dispute, in the case of Ross's Lessee v. Patterson, tried before the late Chief Justice Shippen and Judge Brackenridge at a Circuit Court for Lycoming county, in which I was of counsel for Patterson. In that case the name of Patterson had been endorsed, then obliterated, and the name of another person inserted in the place of it. The warrant calling for the land of Pomeroy, also tended to shew that a survey had been made for him. By rejecting these papers, the Court took upon themselves to decide matters which ought to have been submitted to the jury. Whether 1 the location was the property of Pomeroy, and supposing it to be his property, whether he had acted so negligently as to forfeit the imperfect title which he had acquired, were ’ matters which depended on a variety of circumstances, concerning which the Court might have given their opinion \o the jury after the evidence was closed. But it appears to me, - that agreeably to former decisions, the evidence ought to have been received. I am therefore of opinion that the judgment should be reversed, and a mew trial ordered. Ye ates J. absent in consequence of sickness. Brackenridge J. was of the same opinion with the Chief Justice. Judgment reversed.