Kirk been shown in the collection of the purchase 1824. money; but the tenure has never undergone any change, and it has never been doubted that the legal title remained in the proprietors and the Commonwealth, respectively, and that they might at any time enter, to enforce the terms of sale. The act of 1779 did not assert that the estates of the proprietaries had been devested by the revolution, nor could that proposition now be maintained, if the question were open. It did not profess to confiscate their property, nor could it justly do so, for they had committed no offence. Neither did it assert a right of conquest. The act was not passed to benefit individuals, nor to alter or lessen their just liability. It was a partition between the Commonwealth and the proprietary of all their estates, legal and equitable, of which the manor lines, were the lines of division. It left the proprietors, then, their vacant lands, their legal estates, and all else within the manors. The terms of the act give no countenance to the idea, that the legal title was assumed by the Commonwealth, leaving, the purchase money to the proprietaries. The reservation is of private rights. But the whole of this question has been long since disposed of, and it is now considered as settled law in Pennsylvania, that the legal estate is in the descendant of the proprietaries, as a security for the purchase money." As to the seven years law of 1705, it has never a 4 Dall. Rep. 02. 410. Penn v. Klyne, 1 Peters' Rep. C. C. 6 Laws of Penn. 205. Smith. Kirk Smith. 1824. been heard of since the time of its enactment, and we are, therefore, compelled to look for a construction of it consistent with its disuse. It is a retrospective law in its very terms, and, having performed its office at the time, has been ever since disused. No such construction as that insisted on, ever could have been given to it. As to the presumption of payment, it must be founded, in every such case, both upon the length of time, and the omission to do what would be done if the presumed fact did not exist. It is a presumption merely, and may be repelled by circumstances, showing why an earlier demand has not been made." No such presumption, therefore, exists, unless the forbearance be unusual, or contrary to what might have been expected. But it has been the universal practice to forbear. If there had been a payment, there would have been a paWhere the fact to be proved must appear by deed, the presumption, from length of time, does not arise.' The surveys, if made, were never returned; therefore, there could have been no payment. The receiver general's books will show what has been paid. tent. The statute of limitations of 1785, is not a bar. To make possession a bar, it must be adverse." It may be adverse as to one, and not as to another. A possession under one, is not adverse to him. a P.hill. Ev. 118, 119. b Ib. 117, 118. c 1 Dall. 67. Kirk V. Smith. Possession under an agreement, is not adverse;" 1824. and ouster cannot be presumed where the possession is not only under, but according to the agreement. To maintain a title, or a claim, of adverse possession, such possession must be adverse at its commencement, and so continue for twenty years. There must be, at least, a claim, or colour of title, adverse or hostile; though it is not necessary that it should be a good title. A person who enters without claim, or colour of title, is deemed to be in possession in subservience to the legal owner, and no length of time will make it adverse. The doctrine of adverse possession must be strictly taken, and the fact must be made out by clear and positive proof, and not by inference. Every presumption is in favour of a possession, in subordination to the title of the true owner. If the defendant has acknowledged the plaintiff's title, he cannot, afterwards, dispute it. So, an acknowledgment, by a person under whom the defendant claims, that he went into possession under the lessors of the plaintiff, is conclusive against the defendant, as to tenancy. And though it may not have that effect, yet it will prevent possession from being adverse." *a Barr v. Gratz, 4 Wheat. Rep. 213. b Branett v. Ogden, 1 Johns. Rep. 230. Doe v. Campbell, 12 Johns. Rep. 365. c 2 Caines, 183. 13 Johns. Rep. 118. d 16 Johns. Rep. 293. e 3 Johns. Cas. 124. 8 Johns. Rep. 220. 9 Johns. Rep. 163. 12 Johns. Rep. 365. 10 Johns. Rep. 475. f 1 Caines, 444. 2 Caines, 215. 3 Johns. Rep. 499. g 2 Johns. Cas. 358. 4 Johns. Rep. 230. Kirk V. Smith. 1824. In the present case, it is not disputed, that the defendants went into possession under the proprietors, and nothing has since occurred to change the character of the possession. No one could hold adversely, unless he came in by title paramount to the proprietary; and no title against the Commonwealth, or grantee of the Commonwealth, can be acquired by length of time." The possession of lands held by warrant and survey, is not adverse to, but under the Commonwealth." February 5. The cause was continued to the present term for advisement. Mr. Chief Justice MARSHALL delivered the opinion of the Court. This is a writ of error to a judgment rendered by the Circuit Court for the District of Pennsylvania, in favour of Penn's lessee, who was plaintiff in a writ of ejectment. The case depends on a bill of exceptions taken to the opinion of the Court, expressed in a charge to the jury. On the 4th of March, in the year 1681, Charles II. granted to William Penn, the ancestor of the plaintiff in the Circuit Court, that tract of country which now constitutes the State of Pennsylvania, By this grant, the property in the soil, as well as in the right of government, was conveyed to William Penn and his heirs, in fee simple. The grant contains special powers to erect manors, and to alien the lands, with liberty to the a Morris v. Thomas, 5 Binney, 77. 1 McCoy v. Dickinson College, 4 Sergt. & Rawle, 305. Kirk V. Smith. alienees to hold immediately of the proprietor and 1824. his heirs, notwithstanding the statute of quia emptores. On the 11th of July, in the same year, William Penn, having interested many persons in his grant, agreed with the "adventurers and purchasers" in England, on "certain conditions or concessions," which being for their mutual advantage, were to be obligatory in the future management of the property and settlement of the province. The 9th of these conditions is, that "in every 100,000 acres, the governor and proprietary, by lot, reserveth ten to himself, which shall lie but in one place." It would seem as if this article should be construed as restraining the power of the proprietor. Being the absolute owner of the soil, it was in his power, independent of contract, to sell, or not to sell, any part of it. But, as the value of the lands must necessarily depend on the progress of settlement, it was obviously the interest of the great purchasers and adventurers, as well as of the proprietor, that he should open the country generally to emigrants. It was also the interest of the proprietor, to make large reservations for his private use, that he might avail himself of the increased vålue to be derived from settlement. To prevent his checking the advance of the settlements by unreasonable reservations, this article fixes the proportion of land which he may take out of the general stock offered to the public. The great mass of land was in the market, to be acquired by any adventurer, at a given price; but out of this mass, Vol. IX. 33 |