Irish and another against Scovil

Irish and another against Scovil. Sunbury, Wednesday, June 9. A deed convey-the seventeen • i4Xo4rsi4mitted according to the act of 4th° out of the townships, and to -which no title was rf^ft^mthe6" Commonwealth, Ues^fora^the** ^j^fas^o the land within the baTasto^here?1 intention of the 1802, to* rahíhít under the Can(Tvhh theexcep?lon°fla[ut 'wlthsubmitted under {^e ackncwíedg^eífoiAand of both descriptions oVnn4l'he given'111 evidence, even as to the land within the town- ejectment against one defendant, filed before the wards\™:st!c4m' according to the command of Ins writ summoned therptrao^ñfouTd in possession. Meld, that- the statement was right; and that if the name of the other defendant should be added, it might be done after verdict and judgment below, and this Court would consider it as done. IN ERROR. THIS was an ejectment in the Common Pleas of Luzerne. county, by Scovii, the plaintiff below, against Job Irish, for a tract of land within the township of Claveracke, one of the seventeen townships. The statement of the plaintiff was filed before tbe return day of the writ against Irish: the sheriff afterwards returned the writ served as to Irish, and also as to Samuel Needham, whom he had found in posses- . -< i ■» r i ' sion, and summoned as defendant* . ' The issue being joined upon not guilty, the plaintiff gave in evidence a patent from the Commonwealth to himself, dated the 13th of July 1809, for 189 acres and 1-00 perches, in the above-mentioned township, being the land in dispute. He then read tbe return of the sheriff to prove the defendants’ possession, and rested his case. The defendants, to maintain the issue on their part, gave in evidence a certified copy of a certificate under seal, granted by the commissioners appointed to carry into effect the provisions of the act of 4th April 1799 and its nients, to Scovii, dated the 21st of January 1804, for lot No. 4, in Claveracke, containing 189 acres 120 perches, and then offered to give in evidence a deed from Scovii to one John Broten, dated the 7th of November 180S, and purporting to have been acknowledged on the same day before a justice of the peace for Luzerne county, which deed in-eluded the land in question, and also other land not within the seventeen townships, but within the county of Luzerne; but it contained no recital of or reference to anv title 1 /-■ 1 1 r T. , , - , the Commonwealth ox Pennsylvania, or the late proprietaries before the 4th of July 1776. The Court rejected the deed, and sealed a bill of éxceptions. rru ... , . . _ , ihe -errors insisted upon, were, 1. tbe rejection of the deed of 7th November 1805; 2. a variance between the statement or declaration, and the verdict and judgment; the 1 - • , , , 0 ,. statement being against Job Irish only, and the verdict and judgment against Job Irish and Samuel Needham. Hall and Duncan for the plaintiffs in error. Burnside and Beelas for the defendant in error. [MAJORITY — Tilghman G. J.] Tilghman G. J. The deed from R. Scovil, the plaintiff below, to John Brown, which was offered in evidence by the defendants, and rejected by the Court, contained a conveyance not only of the land in dispute, which lies within the township of Claveracke, (one of the seventeen townships) and had been submitted according to the provision of the act of 4<th April 1799, commonly called the compensation act, but also of other land lying out of the seventeen townships to which no title was derived from the Commonwealth, or from the late proprietaries of Pennsylvania, before the 4th of July 1776. There was no evidence of the execution of this deed, except the acknowledgment of the grantor before a justice of the peace of Luzerne county, so that the question is whether the acknowledgment is valid. In order to come to a true understanding'of the apt on which this case turns, it will be proper to state briefly the occasion of making it. The peace of the Commonwealth had been long disturbed by the conduct of a number of persons, who seated themselves on lands in the north eastern parts of the state, under a title not derived from the Commonwealth, or the late proprietaries of Pennsylvania. Various laws had been from time to time made to remedy this evil without success. While the legislature wished to secure the rights of those who derived title under the Commonwealth, it appears to have been their anxious desire to shew as much lenity as possible to a body of men, many of whom might have been deceived as to their own title, and many of whom (or their fathers) had shed their blood in defence of the country in the war of the revolution. In order to effect both these objects, the compensation act was passed, holding out inducements to the Pennsylvania claimants to relinquish their titles. to the Commonwealth, and to the Connecticut settlers to purchase from the Commonwealth, the lands thus relinquished. The description of settlers intended to be favoured was confined to the seventeen townships, which had been in great part occupied, while the legal controversy between the states of Pennsylvania and Connecticut was yet undecided. The act which we are now more particularly to consider, bears date the 6th of April 1802, and its manifest object appears to have been to continue the kindness which had been extended to the seventeen townships, but to cut up by the roots the title of Connecticut in all other parts. By the first section, no conveyance to be made of any land in the counties of Luzerne, Lycoming, and Wayne, shall be effectual to pass any estate or right legal or equitable, Unless the title to the land in such conveyance mentioned is derived from the state, or the late proprietaries thereof before the 4th of July 1776, and unless such conveyance shall expressly refer to and recite.the substance of the warrant, survey, patent or title, under which the same is deriyed; and if any judge or justice shall take an acknowledgment or proof of, or any recorder shall record, any deed which shall not have been derived as aforesaid, he shall forfeit for every offence 200 dollars; and such acknowledgment and recording shall be void and of no effect, and such recorder shall forfeit his office. The second section prohibits any person interested in the Connecticut title to sit as a judge or serve as a juryman in any cause, civil or criminal, in which that title may be brought into question, and prohibits all sheriffs to summon any person interested in the said title, as a juryman, &c. But the third section provides that “ none of the penalties or disabilities created by the said “act, except so far as relates to judges, sheriffs or jurors, “ shall relate to land or the claimants of land within the se- “ venteen townships of Luzerne county, or any of them, so “ far as concerns any act of theirs concerning lands within “ the said townships, which have been or may hereafter be “ duly submitted according to law, under the provisions of “an act of assembly passed on the 4th of"April, 1799, &c.” The operation of the third section is this. The restriction in the first section, with respect to the conveyance of titles not derived from the Commonwealth, has no effect on lands ivithin the seventeen townships, which have been or may be submitted under the compensation act, but the prohibition in the second section to sit as a judge or serve as a juryman, or to return as jurymen, &c. remains in full force even as to persons within the seventeen towns. There can be no doubt then that the conveyance, of that part of the land in dispute, which lies within the seventeen townships^ if it had not been connected with other prohibited land, would have been effectual, and the deed of conveyance might have been legally acknowledged and recorded. Neither have I any doubt but that the estate of the grantor in the land within the seventeen townships, passed by the deed in question, although other prohibited lands are contained in the same deed. That the land within the seventeen townships should pass, is agreeable to the third section, and not at variance with any part of the act. But what shall we say to the acknowledgment of this deed? The acknowledgment is a step preparatory to recording. If it may be acknowledged, so may it be recorded. But it can neither be acknowledged nor recorded in fart. They are acts indivisible, and must be good or bad in toto. It is no answer to say that the recording may be good so far as respects the lands in the seventeen towns, and void as to the residue. One object of the law was to prevent the entry in the record books of any writing purporting to be a conveyance of prohibited lands; and this object may be completely frustrated, if such conveyances may be placed on record, by joining in the same deed a conveyance of other lands. Where prohibited lands are inserted in a conveyance, the act declares the acknowledgment to be void; how then can we say that it is in any respect good? If it be said, that this is a hardship, it must be acknowledged to be brought on by the negligence of the grantee, who ought not to have accepted of such a conveyance. It was very much my wish to have supported this acknowledgment, if it could have been done without violating the act of assembly; because the costs in this action are enormous, and the deed may be given in evidence when the cause comes to be tried again in a new ejectment, by producing the subscribing witnesses. But I am constrained tó consider the acknowledgment as altogether void, and that being the only evidence offered of the execution of the deed, the Court of Common Pleas were right in rejecting it. The plaintiff in error has brought forward another exception, that the judgment is erroneous, because the statement of the plaintiff’s claim makes no mention of Samuel Need-ham, one of the defendants. But it does not appear to me that there is much weight in this exception. The act of assembly directs that the plaintiff shall file a statement of his claim, on or before the first day of ,the term to which the action was brought. It was done’in this case before the term, and done properly, for at that time there was no defendant but Irish. But it is also directed by law, that if there are any other persons found in possession, the sheriff shall summon them, and they shall be also made defendants. ' Needham was found on the land, summoned by the sheriff, and entered as one of the defendants. He appeared by his attorney and joined the other defendant in the plea of not guilty. The act has been literally complied with by the statement which was filed. Whether more was necessary, I will not say, because from what appears on the record, the Court of Common Pleas would have been authorized to permit an amendment of the statement by iris erting Needham's 'name in it at any time, even after verdict and judgment; and if so, this Court may consider such amendment as having been made. My opinion therefore is that the judgment should be affirmed. Ye ates J. was absent in consequence of sickness. Brackenridge J. concurred with the Chief Justice. Judgment affirmed.