[Pittsburg,
September 26, 1826.]
ROSS and others against M'JUNKIN and others.
IN ERROR.
Although the assignment of an insolvent debtor passes the legal estate in his lands, yet a trust results by operation of law, which, as soon as the debts are satisfied entitles him to the possession against his assignees, el a multo fortiori, against a stranger, against whom he may maintain an ejectment in his own name; and, in the absence of proof to the contrary, this court will intend that he produced satisfactory evidence, that the debts were paid; particularly, after a lapse of fourteen years.
Where two .warrants to different persons are survevad together, and a general diagram of surveys returned, without a division line, or any thing to designate each tract, the grantees are not tenants in common of the whole. Their rights, as between themselves, are’ suspended, until the subject of the grant to each shall be specifically designated by the proper officer, or by themselves; and, when that is done, the title of each relates to the commencement of the grant, and each may recover for himself.
This was a writ of error to the Court of Common Pleas of Allegheny fin an ejectment brought by the defendants in error, William MJunkin and others, against the plaintiffs in error, Samuel Boss and others, for four hundred acres of land in Plumb township, bounded.by lands of John Brown on the south, the heirs of Hugh Davison on the east, Michael Coon and others on the north, and land in the possession of James O’Hara on the west.
The facts of the ease, so far as they could be collected from the record, were these:—
On the second of December, 1772, a warrant issued to John Menough for three hundred acres of land on the head of Plumb creek, including an improvement made by William Menough in the county of Bedford. On the 26th . of May, 1773, a warrant issued in the name of William Menough, for two hundred acres of land on the head waters of Turtle creek, joining a tract of land of John Menough, including an improvement in Westmoreland county. On the 1st of March and 15th of- June, 1773, a survey was made on both warrants by Robert M‘Crea, in one undivided tract of five hundred and ninety-nine acres, one hundred and forty-five perches, which was returned into the surveyor general’s office on the 26th of January, 1774. It was proved,, by the deposition of Robert Johnson, that he helped William Menough to make the improvement, and that both the brothers told him, th&t-Wil-liam was to find the land, and John to pay the purchase money, and that the land was to be equally divided between them. On the 23d of August, 1783, John Menough made his will, which was proved in Baltimore, September 27th, 1783. He devised to George Henry Blackheatk “two hundred acres of land, for which he had a warrant, expressing three hundred acres on the waters of Plumb run, in Westmoreland county, PennsylvaniaThe re*365sidue of his estate, real and personal, including one hundred acres of the above-mentioned tract, he gave to his brother, William Menough. On the 28th of November, 1801, George Henry Black-heath made a conditional sale of the land mentioned in the will to Samuel Boss. In November, 1704, John Menough’s land in Plumb township was sold for taxes, and a deed made to William M‘Junkin, who took possession of the south tract in Í796, and made improvements. On the 24th of July, 1795, William Menough made his will, by which he devised his plantation in Plumb township, Allegheny county, warranted in the name of William Menough, to his. wife during her life, for herself and her three daughters, Mary, Martha, and Elizabeth, and after the death of his wife to the daughters in fee. Elizabeth died, and Mary and Martha married MJunkin and Davison, the plaintiffs. In'1798 the widow married Samuel Boss, and afterwards died before the institution of this suit. On the 9th of April, 1808,' Samuel, William, and John Menough, sons of the testator, by deed conveyed to Samuel Boss their interest in the one hundred acres devised to their father by John Menough, their uncle.
It further appeared, that on the 22d of August, 1782, John Menough conveyed to Philip Bydn, who, on the 8th oí January, 1800, conveyed to John Brown the warrant of John Menough, reciting the deed of Menough to him of the 22d of August, 1782. On the 20th of January, 1800, John Brown took the benefit of the insolvent laws, and assigned all his estate, including the land in dispute in this suit, to David M‘Murtrie and Matthew Simpson, and at January Term, 1S03, the court of Huntingdon county appointed James Hunter and Samuel Marshall trustees, in the room of those who were first appointed. To March Term, 1801, John Brown brought an ejectment in Allegheny count)7, against M‘Junkin and others, for the lands claimed under John Menough’s warrant. This action was discontinued at March Term, 1803. On the 5th of April, 1809, John Brown entered a caveat against the warrants of William and John Menough, alleging that he had a title to both '; and, on the 6th of October, of the same year, he presented a petition to the board of property, asking a re-survey, according to the description and proportion, and separate returns on each warrant. On the 2d of January, 1810, the board of property decided that both warrants should have an-equal quantity, and that the county surveyor should make and return a new survey. This survey was never made. The surveyor proved, that if the order had been executed, it would have thrown William Menough’s warrant upon the waters of Turtle creek, and John Menough’s, where Samuel Boss resides. To November Term, 1814, an ejectment was brought by John Brown against two persons, named Metzgar and Porter, for. four hundred acres of land in Plumb township, adjoining lands oí William Martin, High Davis, and Thomas M‘Elroy. The cause. *366was tried on the 30th of October, 1831, when a verdict was given for the plaintiff. A motion for a new trial was afterwards made, which was overruled, and judgment entered on the verdict. Upon this judgment a writ of error was issued, returnable to September Term, 1823, and the Supreme Court affirmed the judgment.
At the conclusion of the trial, the following propositions were submitted for the opinion of the Court of Common Pleas:—
“ 1. Could John Brown, after his discharge under the insolvent debtors’ act, in January, 1800, maintain an ejectment in his own name for any of the lands mentioned in his schedule?
“2. Could John Brown, if capable of sustaining a suit for the lands he assigned under the act of insolvency, recover and take possession of any thing but that covered by the order of the board of property, in their final decree of the 2d of January, 1810?
“ 3. Could he recover any greater quantity than the half of the two surveys, laid out as specified in the last order of the board of property?
“ 4. Can the present plaintiffs recover before there is an actual eviction of their possession, and adverse possession taken, and metes and bounds settled and made known?
“5. If they can recover, can it be in any other manner than that directed by the board of property in 1810?”
The. President of the court delivered to the jury the following charge, the whole of which it is necessary to insert, to enable the reader to understand the case.
“This case, as it respects many matters involved in it, is very obscure and difficult. I will not pretend to say, that I understand it perfectly, in all its ramifications. One thing, however, I see plainly, and no doubt you will also. The heirs of William Menough are .entitled to land somewhere. With this view, it is our business to inquire whether^he plaintiffs, who represent William Menough, have sustained their right to the land in posses-session of the present defendant. If they have not, they must fail and look somewhere else. It appears that John Menough obtained a warrant dated the 2d of December, 1772, and a warrant also issued to William Menough, dated the 26th of May, 1773. Upon these warrants a general diagram of surveys was returned, by which it appears that they were made on the 1st of March, 1773, and the 15th of June, 1773, and contained five hundred and ninety-four acres and one hundred and forty-five perches, with allowance. There is little doubt, perhaps, that John Menough’s warrant was first laid, because the survey of the 1st of March, 1773, was made before the other warrant was issued. The precise locality of it, in relation to the other tract, is not designated by the return. This has led to all the difficulty. The whole quantity was held in undivided possession by the two brothers, until the 26th of August, 1782, when John Menough conveyed by deed to Philip Ryan. The defendants’ counsel has adverted to sundry *367suspicious circumstances connected with this deed, and appearing on the face of it, as he says. It has, however, not been very seriously impugned. A paper so old must necessarily, if not well kept, bear some of the obliterating marks of time. On the 8th of January, 1800, Philip Ryan conveyed to John Brown. At this period then how stood the.rights of the parties? William Menough had made his will in July, 1795, devising this tract of land to his wife during her life, for herself and three daughters, Mary, Martha, and Elizabeth; and, after the death of the wife, to the daughters in fee. He died prior to October 10th, 1795, and subsequently his widow intermarried with Samuel Ross, the defendant. Elizabeth died, and Mary and Martha are married to Davison and M‘Junkin, the plaintiffs. John. Brown, then, if the deeds were fair and valid, had lawfully acquired the right of John Menough, and Ross, (during the lifetime of his wife,) and M‘JunMn and Davison, by marriage with Mary and Martha Menough, were entitled to the remainder of the tract in right of their father, William Menough. But where were the several claims to be located? If there is any evidence to satisfy you of the separate locality of their tracts, you will fix them accordingly. An old diagram has been shown, found in the office of the deputy surveyor, on which the name of John Menough is marked on the south side of the survey. How it came there, and when, does not very certainly appear. It is also said, that a division was made between the two brothers. The evidence, if any, on this point is more by inference and argument than by direct proof. But if, from the testimony, you are satisfied that there was such a division, and that the defendants are in possession of’that part which fell to the share of William Menough, there is an end of the controversy, and the plaintiffs ought to recover. It seems, however, that in 1809, John Brown was not aware of any such arrangement, for he applied to the board of property to have an adjustment of his claim. An order was made to divide the general survey in a particular manner, setting off the shares in severalty. This was done, and John Brown was .allowed four hundred and fifty-one acres and eighty-four perches on John Menough?s warrant; and the heirs of William Menough had three hundred and one acres and forty-three perches left to them. This not being satisfactory, in consequence of a mistake of the surveyor, as is alleged, a new order was made on the 2d of January, 1810, which was never executed. John Brown, disregarding the proceedings of the board, made at his own request, brought an ejectment to recover John Menough’s tract, and, upon a full trial, had a verdict and judgment in his fa-vour. Under it he has obtained the possession of his whole claim. If, then, John Brown has lawfully asserted his title, under John Menough, for part of this general survey, to whom does the remainder belong? The widow of William Menough, to whom Ross was married, died before the beginning of this suit, and any *368right which he had to the possession through her, has been consequently extinguished. The whole title, then, under William Menough’s warrant, is vested in M‘Junhin and Davison, who married his daughters, to whom he had devised it. If John Brown has got John Menough’s share, the plaintiffs are entitled to the remainder. This seems very clear. But it is said, Brown’s recovery is unlawful, for several reasons:— ,
“1. It is contended, that he was incapable of sustaining a suit for the land, because he had assigned it to trustees under the act of insolvency in January, 1800. To this objection, we need only say, that it appears to have been made a point at the former trial, and an exception taken in error before the Supreme Court. There has been an adjudication, by the highest tribunal, in this very case, and we are not disposed to disturb it. But,—
“2. It is said, that if he was capable of sustaining a suit, he could only-recover according to the designation made under the order of the board of property. On this point, we say that the parties were not concluded by their proceedings; and Brown having appealed to his remedy in a court of law, had a right to recover according to the judgment of the court, and such quantity as that decision would allow him to have: — this also answers the third question.
“4. To the. fourth we-answer, that John. Brown having recovered by the judgment of a court of law the quantity of land to . xvhieh he was entitled under John Menough’s warrant, the plaintiffs have an undoubted right to the balance. The adjustment of metes and bounds between the several parties, is a matter that does not concern Boss, who is there without right. It is an affair entirely between the plaintiffs and Brown. If they have designated and ascertained his quantum under the recovery, they have a right to oust Boss from the remainder. He is not, however, precluded, if he thinks he has a better right than Brown, from .bringing his ejectment and obtaining the land. It seems than John Menough made a will shortly before he died, and subsequent to his deed to Byan, in which he devisejl two hundred acres of this land to one Blacleheath, and one hundred acres to the sons of William Menough, who conveyed to Boss. If he can overturn the deed to Byan, and establish this will, he may yet obtain the land from Brown; but with this the plaintiffs have nothing to do.
“ 5. To the remaining question we answer, that the plaintiffs are not to be governed in their recovery by the proceedings of the board'of property. They are entitled to the whole interest under William Menough’s warrant, which includes all the land contained in the general survey, after satisfying Brown’s claim, which has been done.”
To this charge the counsel of the defendants excepted, and, on the return of the record to this court, assigned errors as follows:
Cí 1. That the Court of Common Pleas did direct the jury, and *369decide that John Brown, an insolvent debtor, discharged under the insolvent debtors’ act of the 20th of January, 1800, could afterwards maintain and recover in ejectment, a tract of land mentioned in his schedule, and assigned by him to his assignees.
“ 2. That the same court did direct the jury, that John Brown, who liad instituted proceedings by his caveat and petition to the Board of Property, could recover other and different lands from those allotted to -him in the order of the said board, and that he might recover in severalty.
“ 3. That the same court did direct the jury, and decide that the plaintiffs below might recover in this action without an actual eviction from their possession by- Brown, and before Brown’s claim was laid off by metes and bounds, or otherwise.
<( 4. That the same court did direct the jury, and decide that the plaintiffs below might recover the lands in cpntroversy from the defendants below, without regard or refei’ence to the orders of the Board of Property, as specified in their last order of the 2d of January, 1810, which never was executed, and that Brown’s recovery, being in severalty, entitled the plaintiffs below to the whole residue.”
Boss, for the plaintiffs in error.
Baldwin, for the defendants in error.
The opinion of the court was delivered by
Gibson, J.
Had the record of the recovery by Broiun been offered as evidence of his title, an objection to its competency would have raised a point of some difliculty. It, however, was admitted without objection, and, we must intend, in that view in which alone it would be clearly competent — to show the fact of a recovery by which Brown, claiming the title of John Menough, had elected to locate his warrant on the land recovered; of the value of which to the plaintiffs’ case, I shall have occasion to spealc again. In this view of the case, Brown’s right to recover was altogether immaterial; but there was, in fact, no decisive objection to his title. Although the assignment of an insolvent debtor passes the legal estate in his land, yet a trust results by operation of law; which, as soon as the debts are satisfied, entitles him to the possession even against the assignees, et a multo fortiori against a stranger; and how can we say that Brown did not produce satisfactory evidence that the debts were paid? A lapse of fourteen years had intervened; constituting two thirds of a period sufficient of itself to raise a legal presumption of the fact. In the absence of proof to the’contrary, all necessary intendments are to be made in favour of judicial proceedings. But it is sufficient that his right to recpver' adversely to the title of William Menough, was not involved in the issue; and this disposes of the assignment of the first two errors, which depend on the same principle.
The two points which remain, are also alike in principle. The *370warrants of John and William Menongh, having been surveyed together, a general diagram of survey was returned, which contained no division line, nor any thing to distinguish the one tract from the other. On the petition of Brown, who claimed the warrant of John, the Board of Property ordered the proper surveyor to return a new survey, in which the tract of each should be designated. This order was never.executed, but Brown recovered a particular part of the general survey, in an ejectment against two persons, who were respectively the tenants of the parties to the present suit; and it is contended, that the plaintiffs cannot recover, without showing that they were actually dispossessed of the part recovered by Brown; or without regard to the oz'der'of the Board of Property.
The nature of the interest, which the original owners of the warrants held under their joint survey, will go far to settle the rights of the parties before us. They were grantees from the state, not of an undivided interest in the whole, but of separate and distinct parts of the whole; consequently, they were not tenants in common. The grant to the one, would not have entitled him to possession in common of the whole; nor, if one had been disseised, could he have recovered an undivided portion from the other. The truth is, the survey was imperfect; and, although a valid appropriation of the land, as to strangers, it left their rights, as between themselves, suspended, till the subject of the grant to each should be specifically designated by the proper officer or by themselves. It has been held, that any number of warrants may be surveyed together by a-common outline, so as to prevent a valid appropriation of any part of the land included, to subsequent warrants; and, it being a matter between the warrantees themselves, I can see no difference, whether the interior lines be laid down by protraction or not. But the separate owners of warrants thus laid, would certainly not have an interest in common in the land included in the general survey.. Tenants in common, although their estates be several, have each an undivided interest in the whole; but it can with no propriety be said that each has an interest in the whole under the grant of a part. They could not join in trespass guare clausum fregit; but having supplied the deficiency in the original survey, by designating respectively the object of each grant, the title would relate to the commencement of the grant, as in ordinary cases, and then each might recover for himself. A writ of partition between John and William Menongh, therefore, would not have lain; but their interests were separable by any act in pais. They were certainly competent to exercise as much powjsr over the subject matter, as the surveyor, who was their agent, and'who might have allotted to each his part by protracting a division line, or even by writing their names upon different ends of the parallelogram formed by the lines of the draught. Now, the correctness of the charge, that the plaintiffs might recover *371without proof that they had been dispossessed by Brown>, or without regard to the order of the Board of Property, depends on the nature and sufficiency of the evidence, of designation by the acts of the parties, or those who represent them; a matter concerning which it is impossible to form an opinion, as the evidence does riot all appear on the record; but being in any event a matter for the decision of the jury, it cannot be made the subject of error. But enough appears on the record to support the opinion of the court in point of fact. Brown, who stands in the place of John Menough, elected a particular part of the survey when he brought an ejectment for'it, and this election is ratified on the part of the plaintiffs by the present ejectment for the residue. After this, does it lie in the mouth of a stranger and a wrong-drier, to say that the parties have not separated their interests? All the objections to the-plaintiffs’ title are merely technical, and certainly not entitled to peculiar favour; and we are well content in pronouncing that they have not been maintained.
Judgment affirmed.