ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE SHIRAS delivered the opinion of the court.
This was an action of ejectment brought, in the Circuit Court of the United States for the Western District of Pennsylvania, by Elisha A. Packer, a citizen of the State of New York, against Charles G. Murphy, a citizen of the State of Pennsylvania, to recover possession of a tract of land containing four hundred and sixty-two acres, situate in the county of Cumberland and State of Pennsylvania. The plaintiff's evidence to show title in himself consisted of six warrants for tracts of land of some four hundred acres each, one of which, to Nathaniel Brown, dated November 26, 1793, embraced the land in question; also survey under said warrant made on the 21st day of October, 1794; also, papers on file in the land office of Pennsylvania, namely, a purchaser voucher No. 12,969, and a "purchase blotter" No. 12,969, dated June 14, 1794, stating that Dr. Thomas Ruston applied for and took out the warrant to Nathaniel Brown and five other warrants, and paid the purchase money.
Under the well-settled law of Pennsylvania this evidence of payment of the purchase money by Dr. Ruston availed to clothe him with the ownership of the warrants and with a right to maintain ejectment. Campbell v. Galbraith, 1 Watts, 70, 78; Ross v. Barker, 5 Watts, 391; Sims v. Irvine, 3 Dall. 425; Evans v. Patterson, 4 Wall. 224; Huidekoper v. Burrus, 1 Wash. C.C. 109, 114. With the ownership of the land embraced in the Nathaniel Brown warrant and survey thus in Dr. Ruston, the plaintiff put in evidence the record of a suit against said Ruston at No. 44, April session, of the Circuit Court of the United States for the Eastern District of Pennsylvania, showing a judgment obtained on October 13, 1796, sale of said tract of land, and conveyance by the United States marshal on October 11, 1803, to Nicholas Le Fevre. This was followed by proof of the will of Nicholas Le Fevre and of proceedings thereunder, in the orphans' court of Philadelphia and Columbia Counties, whereby the title of Le Fevre to the Nathaniel Brown tract became vested in one Joseph Probst on May 9, 1837. By various deeds, wills, and sheriff's sales
put in evidence, but which need not be set forth here, the Nathaniel Brown tract became finally vested, on March 20, 1883, in Elisha A. Packer, the plaintiff below. The plaintiff likewise put in evidence showing that the Nathaniel Brown tract had been sold for unpaid taxes by the treasurer of Northumberland County on June 13, 1840, and conveyed to Charles Pleasants on August 16, 1840; and also, for unpaid taxes, had been sold and conveyed by the treasurer of Columbia County to James Pleasants by deed dated August 17, 1842. These tax titles to Charles and James Pleasants were shown to have become vested, before the bringing of this suit, in the plaintiff below.
These various documents and proceedings on which the plaintiff relied as showing title in himself were particularly set forth, in accordance with a rule of the Circuit Court pertaining to trials of ejectment, in a statement or brief of title. This statement was not formally controverted by the defendant below, who filed a statement of his own title, which was substantially as follows: (1) the warrant to Nathaniel Brown, November 26, 1793; return of survey of the same, October 21, 1794, this being identical with plaintiff's title; (2) a patent for the Nathaniel Brown tract, dated April 13, 1797, to one Peter Grahl, reciting a conveyance by Nathaniel Brown to Grahl, dated November 27, 1793; (3) assessments of Nathaniel Brown tract, as unseated lands, for unpaid taxes for the years 1826 and 1827; (4) sale for unpaid taxes and conveyance by the treasurer of Columbia County, on June 2, 1828, to the commissioners of said county; (5) minutes of commissioners of Columbia County of unseated lands, showing sale to said commissioners in 1828 and sale made by said commissioners of said tract to Charles G. Murphy, the defendant, by deed, acknowledging the receipt of $305, dated September 18, 1882.
At the trial the plaintiff, as above stated, sustained his brief or statement of title by putting in evidence the warrant, survey, and subsequent deeds, documents and proceedings vesting in him the title to the Nathaniel Brown tract. So far as we are advised by the record the defendant did not object to the plaintiff's evidence, but proceeded to offer evidence to
sustain the history of his own title contained in his brief or statement of title. The offers of the defendant were rejected by the court below, and a peremptory charge was given to the jury to find a verdict for the plaintiff, which was done, and a judgment was entered in favor of the plaintiff, to which the writ of error in this case was sued out.
Error is alleged in the action of the court in refusing to admit the defendant's offers of evidence, and in instructing the jury that the plaintiff was entitled to a verdict.
The first offer of the defendant below was a patent from the Commonwealth of Pennsylvania to Peter Grahl, dated April 13, 1797, with recital therein of a conveyance by Nathaniel Brown to Peter Grahl, dated 27th November, 1793, more than six months before the warrant issued or was paid for. The defendant did not offer any such conveyance in evidence, but relied upon the recital in the patent. Such recital was not evidence against Dr. Ruston and those claiming under him. In the case of Herron v. Duter, 120 U.S. 464, which was an action in ejectment for the land embraced in one of the other warrants owned by Dr. Ruston, and called the Lewis Walker, in the Circuit Court of the United States for the Eastern District of Pennsylvania, the court below rejected a precisely similar offer, namely, a patent to Peter Grahl, with a recital therein of a conveyance by Lewis Walker to Peter Grahl, and such action of the court below was, on error, approved by this court. It was held, following the doctrine of the Pennsylvania cases, that a legal title in Dr. Ruston had been established by the warrant, survey, and payment of the purchase money, and that it was not competent for the Commonwealth of Pennsylvania to affect that title by a subsequent patent to a stranger. To the same effect are Maclay v. Work, 5 Binn. 154; Woods v. Wilson, 37 Penn. St. 379.
We, therefore, think that the court below was right, in the present case, in rejecting the ...