Chew v. Morton

The hoard of property have no power to vacate'a patent once granted. A division line, although made by mistake, can not be altered after thirty years’ acquiescence by the parties.

ERROR to the common pleas of Beaver county. This was an action of ejectment by Benjamin Chew against Mary Morton, to recover the possession of 25 acres of land, lying in Beaver county, north and west of the rivers Ohio and Allegheny and Conewango creek, which carne within the provisions of the act of the 3d of April 1792, and were to be sold and disposed of by the commonwealth upon the terms and conditions prescribed by that act. The plaintiff claimed under a warrant granted to John Nichols, dated the 4th of January 1794, for 400 acres, and a survey made, in pursuance thereof, on the 31st of January 1795, stating its contents to be 400 acres and allowance of 6 per cent, for road, &c., a deed of conveyance from John Nichols, the warrantee, to James Wilson, dated the 19th of April 1796; a deed of conveyance from James Wilson to Benjamin Chew, the plaintiff, dated the 20th of April 1795; each deed embracing the 400 acres surveyed under the warrant granted to John Nichols, of which the 25 acres claimed by the plaintiff formed a part; and a patent of confirmation from the commonwealth for the whole tract and survey, to the plaintiff and the legal representatives of John Morton, deceased, dated the 28th of November 1832. The defendant derived her claim or title to the land in dispute from the plaintiff; and accordingly gave in evidence an agreement, dated the 23d of October 1799, made in writing between the plaintiff, by his attorney John Hage, of the first part and John Morton of the second part, by which it was agreed that Morton should forthwith take possession of the tract of land surveyed as above mentioned under the warrant granted to John Nichols, and make an actual settlement and continue and complete the same according to the requirements of the act of the 3d of April 1792, on the east end of the said tract, within 200 acres part thereof, which were divided off by lines run at right angles, adjoining Braden’s district line, so as to include the improvements, which Morton had previously made on the said tract: and that the said Morton, while employed in performing the covenants therein mentioned to be performed on his part, should peaceably and quietly'occupy and enjoy the said 200 acres without lawful interruption or disturbance of any person whomsoever, and that the said Chew, upon the said Morton’s performing his covenants, would immediately, on the expiration of five years from the said Morton’s first residence on the said tract, by sufficient deed grant, convey, and assure unto the said John Morton, his heirs and assigns, all the aforesaid lot of 200 acres in fee simple, free and clear from all incumbrances whatsoever; also a patent from the commonwealth to Benjamin Chew and John Morton, June the 20th, 1817, granting and confirming to each their several proportions of the whole tract, according to the agreement aforesaid made between them and the division of the land therein mentioned. The defendant further gave evidence of a survey made for Morton, by Joseph Hemphill, on the same day of the date of the agreement before slated between Chew and Morton, dividing off .from the residue of the tract, what was then considered 200 acres, but has since been discovered to contain about 219 acres, in the manner described in the agreement, which appeared to be the only division of 200 acres that had then been made, by running lines as mentioned in the agreement; that Morton continued to reside with his family upon the land until he fulfilled his agreement, and after-wards until his death, which took place about 1821, occupying, clearing and improving the 200 acres every year to the full extent of the lines run and marked by Hemphill, without any objection being made by Mr Chew. That after the death of Morton, upon a proceeding had in the year 1828, in the orphans’ court of Beaver county, at the instance of Robert A. Morton, a son of the said John Morton, the 200 acres, as it had been occupied, were duly appraised, and decreed by the said orphans’ court to the said Robert A. Morton, who elected to take the same at the appraisement; and having done so, occupied it as his father had done, without objection, until he conveyed it to the defendant, who thereafter continued the occupation of it in the same manner, without objection, until shortly before the commencement of this action. It also appeared that the whole tract or survey contained 500 acres instead of 400; and of the 500 acres it was conceded by the plaintiff that the defendant was entitled to 200 acres. But the contest between the parties was for the excess beyond the 200 acres in that portion of the tract, which had been separated from the residue by the survey and lines made and marked by Hemphill. The excess was between 19 and 20 acres. It appeared also, that the board of property, when they granted the patent of 1832, undertook to annul and vacate the patent of 1817, upon an ex parte hearing of the plaintiff, which the court below (Bredin, president) decided they could not do. The court also charged the jury, that as the agreement between Chew and Morton seemed to recognise the partition of the 200 acres, made by the lines run and marked by Hemphill, though done at the request of Morton, and there had been an acquiescence in it by both parties from that time until shortly before the commencement of this action, it must be considered conclusive and binding upon them; so that neither could then alter or change it without the consent of the other, although it might contain more or less than 200 acres. The counsel for the plaintiff excepted to the opinion of the court on these points, and now allege that the court erred therein. cited on the first point, Purd. Z>ig..(1830) 121, 122; 7 Serg. fy Raiole, 156; and on the second point, 4 Watts 263; 2 Watts 396; 7 Ibid. 94; 3 Johns.269; Adams on Ejectment 54. 77; 2 Penns. Rep. 539; 2 Watts 318; Blanchard on the St at. of Limitations, 1 Law Libr. 32, 33.