Faulkner against The Lessee of Eddy, 1 Binn. 188

Tilghman C. J. This cause comes before the court on a bill of exceptions taken on the trial in the Circuit Court of Allegheny county. The material facts stated on the record are as follows: On the 25th April 179a, a certain john M'Kcc entered applications in the land office for six thousand acres of land, in tracts of four hundred acres each, in the names of sundry persons; of which the tract in dispute was one. In the month of May 1794, before any warrants were taken out, he had surveys made on the applications. On the 24th May 1794, he sold his right in these lands to Gideon Ri/i Wells, and.

Richard Hill .Morris, who in june 1794 paid the consideration money to the state, and took out warran~s, having previously altered the names of the applicants by consent of the said M'-Kee, and with the approbation of the officers of the land office, who have proved that such alterations were customary in the office.

The first surveys being supposed to be illegal, subsequent surveys were made under the direction of M'-Kee, and returned, and accepted in the land office; and the deputy surveyor having improperly and by mistake returned the surveys as having been made in May 1794, that mistake was corrected in the land office, and the returns made to correspond with the surveys in March 1795.

The plaintiff below, having given in evidence the articles of agreement between M'-Kee, and Wells and Morris for the purchase of the lands, proved by the oath of the said M'-Kee, that the cabin and claim of a certain John Wolf were excluded by the survey which is mentioned in the said articles viz. the survey made before the warrants were issued. And the defendant then offered to read in evidence to the jury, a deed from the said Wolf to John B. C. Lucas Esquire, dated 23d June 1796, conveying the said cabin and claim of Wolf to the said J. B. C. Lucas.

The court overruled the evidence because no pi-oof had been given of any legal settlement made by the said Wolf prior to the survey of Wells and Morris in March 1795. On this bill of exceptions, the counsel for the plaintiff in erro.r have raised three points. First, That the alterations of the name of the applicant, and of the name of the owner of the adjoining tract, which is referred to by way of description and boundary, is contrary to the act of 22d April 1794. Secondly, That the deed from Wolf to Lucas ought to have been received as evidence.

Thirdly, That no parol evidence ought to have been received of the surveys made in 1795, inasmuch as the first returns stated the surveys to have been made in May 1794. As to the first exception, I am of opinion that the alteration made in the application was not contrary to the act of 22d April 1794. The intent of this act was to prevent the grant of any More lands, except in certain specified cases; it being supposed 'that the vacant lands in the state would not be sufficient to satisfy more than the amount for which the state had already engaged to make titles.

The alteration in question did not increase that quantity; it evidently was for the very same land, that was described in the applications entered by IHKee. Therefore it does not violate the spirit of the law. In arguing the second point, the counsel for the plaintiff in error has not contended for the broad principle laid down in M'Dills lessee v. M'Dill, that any deed may be read in evidence, whether pertinent or not to the matter in issue. In this he was certainly right. It has been generally conceived that in that case the law was carried too far.

But he relied on an agreement between M'-Kee and Wolf, that the cabin of Wolf should not be taken from him. The record states not one word of any such agreement; and the case stands nakedly as of one who, having no kind of title, makes a deed conveying his right to another. It has been the practice at Nisi Prius to reject the deed in such cases; and I see no reason why it should be altered. It makes no difference to the party offering the deed, whether it is rejected at once, or whether the court suffer him to read it, and then tell the jury that it passes nothing.

But it expedites the trial of causes to reject the deed in the first instance. As to the third point, it appears to me extremely plain that it was proper to receive evidence to explain the whole transaction. The return of an officer is prima facie evidence, but not conclusive, of the truth of the matter returned. It would be a reflection on courts of justice, if in a case like the present, where the partv had in truth procured a legal survey to be made, he should be estopped from shewing it, merely because there had formerly been an illegal survey, and the officer had made a mistake in his return.

And this too, when the Commonwealth, the party most interested, had by its officers permitted the truth to be explained. Upon the whole I am of opinion that the judgment of the Circuit Court be affirmed. The first

section of this law, enacts, “ That from and after the passing “ of this act, no applications shall be received in the land office for any “ unimproved land within that part of this Commonwealth, commonly called “ the New purchase, and the Triangular tract upon Lake Erie.” The second,

section enacts, that no warrant shall issue for the above land, except in favour of persons claiming by settlement and improvement; and that all applications remaining on the files of the land office after the 15th June 1794, on which the purchase money shall not have been paid, shall be' void; with a provision in favour of certain persons. 3 Sts Laws 581. 1 Dall. 64. 1 Dall. 69. S. P.