[Prout v. Bard.] to make the survey of a convenient form, include a comparative small portion of land lying in an adjoining district, that therefore the proprietor of the warrant should lose a portion of the land which he had paid for, particularly when the adverse survey had lain dormant for a period of twelve or thirteen years. As this is the only ground insisted upon by the plaintiffs, we instruct you that if you believe the survey given in evidence by the defendants. never to have been abandoned, that the representatives of Hopkins have never thrown up the land, that it is such an available outstanding title as defeats the present plaintiffs. To this opinion of the court, the counsel for the plaintiffs excepted, and the court sealed a bill of exceptions. Foster and Forward, for plaintiffs in error, contended, that the survey made by James Hunter, so far as regarded that portion of the tract which lay in the 5th district, was null and void, and passed no title whatever, being directly within the 15th section of the. act of April 18, 1785, which enacts that in making any survey by any deputy surveyor, he shall not go out of his proper district to perform the same, and that every survey made by any deputy surveyor without his proper district, shall be void and of none effect. The proper mode to have been pursued to survey the part lying in another district, was to have had the warrant certified by endorsement, and re-directed to the deputy surveyor of No. 5, according to the provisions of the 3d section of the act of April 18, 1785. Here it was impossible for those under whom the plaintiffs claimed to obtain a knowledge of the survey by Hunter, by examining the books of the deputy surveyor of district No. 5, and he is not required, nor could he be expected to look into the books of the deputy surveyors of other districts. It was a fraud in those under whom the defendant holds, if there was vacant land enough in district No. 4, to cross over into district No. 5, making no entry of their warrant in district No. 5. The case of M'Namara v. Shorb, 2 Watts 288, is relied on by the defendant. But that case arose under the act of April 9, 1781, which merely authorizes the surveyor general to appoint a deputy or deputies in any county in this state, who shall have power to make and return into the land office surveys of land only in the county for which such deputy or deputies shall be appointed, but it does not declare, as the act of April 8, 1785, does, that a survey made by any deputy surveyor without his proper district, shall be void and of none effect. There is a great difference in the language of the acts, and the court must make a similar difference in their construction. Besides that was the case of a warrant granted for land on which an actual personal resident settlement was made, and kept up, till the warrant was granted calling for a certain number of acres of land with the improvements. In the case before us there was no settlement, but the warrant was executed on vacant land, and must be maintain [Prout v. Bard.] able under the provisions of the act of 1785, or else is null and void. Purviance, for defendant in error, insisted that the case fell within the reasoning and principle of the case of M'Namara v. Shorb, 2 Watts 288, if not within the decision. But in addition, it is well settled that the surveyor-general himself might make a survey on a warrant in any part of the state, and he might at his pleasure appoint a special deputy, or ratify the act of a deputy not originally authorised. Harris v. Monks, 2 Serg. & Rawle 560. By the 12th section of the act of April 8, 1785, the number of districts to be formed within the said new purchase, and the extent and boundaries of each of the districts were to be ascertained and declared by the surveyor-general, to be approved of by the president or vice president in council, who at their discretion might alter the same. Here the warrant could not be split up into parts, but must be surveyed together, and the prohibition in the act of 1785 was not intended to apply to the case where a part of the land to be surveyed lay in one district and part in another, but only where the deputy surveyor went out of his proper district to survey a tract lying wholly in another district. The opinion of the court was delivered by SERGEANT, J.-We think the language of the fifteenth section of the act of April 8, 1785, is too strong to be got over by any construction that would render its provisions merely directory, and make a survey by a deputy surveyor of one district within the precincts of another district voidable but not void. For the act of 1785, in its whole intent and objects, looks to a new mode of granting, surveying and disposing of the lands acquired by the commonwealth in 1784, by the treaty of fort M'Intosh, commonly called the new purchase. In relation to the mode of surveying the twelfth section is explicit, that the number of districts to be formed, and the extent and boundaries of each, were to be ascertained and declared by the surveyor-general, to be approved of by the president or vice president in council, who might, at their discretion, alter the same. These districts were accordingly marked out and designated, and deputy surveyors appointed for each. By the fourth section, the warrants were to be entered in the deputy surveyor's books, that all persons who might apply for lands might be duly informed thereof. And then the fifteenth section declares, that in making any survey by any deputy surveyor, he shall not go out of his proper district to perform the same, and that every survey made by any deputy surveyor without his proper district, shall be void and of no effect. How then can it be held that the deputy surveyor, Hunter, who was appointed for the fourth district, could go out of that district to make a survey of the whole or any part of a tract within the fifth district? No reason appears why he could not survey the [Prout v Bard.] whole warrant in his proper district, or that his going beyond the district line, at the instance, as we must take it, of the warrant holder, was not purely voluntary. And even if it were not so, yet the policy of the legislature is marked in such plain and explicit language, that to hold the contrary would, we think, be directly at variance with the law. The present case differs in every material point from the case of M'Namara v. Shorb, 2 Watts 288, which has been relied on by the defendant below. There the land was within the old purchase, and it has been settled, that the fifteenth section of the act of April 8, 1785, related solely to the lands then lately purchased at Fort M'Intosh. Wright's Lessee v. Wells, 2 Sm. Laws 201; 1 Yeates 286; Harris's Lessee v. Monk, 2 Serg. & Rawle 560; Creek v. Moon, 7 Serg. & Rawle 334. The fifteenth section of the act of April 8, 1785, therefore did not apply to the case, but merely the third section of the act of April 9, 1781, which authorizes the surveyor-general to appoint a deputy or deputies in any county of the state, who should have power to make and return into the land office, surveys of land only in the county for which such deputy or deputies should be appointed. But this act does not contain the provision in the act of April 8, 1785, making a survey in contravention of its principles null and void; and therefore the act of April 9, 1781, has been construed liberally and as directory merely; whereas the act of April 8, 1785, will not admit such an interpretation. Besides which, the case of M'Namara v. Short, arose on a survey made for a settler, who had acquired by actual settlement a right to a warrant for a tract of land which happened to embrace land lying partly in the county of Huntingdon and partly in the county of Centre, and it was considered that a settler under the laws relating to the rights of actual settlers, had a right to embrace his whole quantity of 400 acres in one warrant, and that the hardship of having two warrants and two surveys was not imposed on him. But here the warrant holder could have his warrant laid on any vacant land that he preferred within the district where he had chosen to place his warrant in the hands of the deputy surveyor, and had no claim under the law or any equity whatever to procure a survey by such deputy over his line; nor could it be possible that another warrant holder, proceeding to a survey in district No. 5, could obtain that notice which the law contemplated every subsequent applier should have, by resorting to the books of the deputy surveyor of the proper district. Judgment reversed, and a venire facias de novo awarded. | Blume against M'Clurken. If an estate be demised for a term of years, by lease under seal, the rent can be recovered by an action of debt or covenant against the lessee on the privity of contract, or against the assignee of the lessee on the privity of estate; but an ac tion of assumpsit on an implied promise, for use and occupation cannot be maintained under such circumstances. ERROR to the district court of Allegheny county. This was an action on the case in assumpsit by Samuel M'Clurken for the use of Ralston & Hays and John Caldwell against Frederick Blume. The declaration contained the common money counts, and one for the use and occupation of a house. Plea non-assumpsit. Edward Simpson, Esq., sworn, said M'Clurken was indebted to Ralston & Hays and John Caldwell on judgments; the property was extended; I was about taking possession of the property under a liberari. M'Clurken agreed with me, that I might go into possession and receive the rents without a liberari. Gerding was in possession; he failed and made an assignment to Frederick Blume, the defendant, who went into possession; he was in possession after October 1, 1839; he occupied it as an oyster-house and drinking establishment; he occupied it as his own; I gave him notice that I considered him liable for rent; he thought he was not liable, being assignee. He (Blume) continued to occupy it as his own. I gave him notice sometime in November or December. Sometime in November or December he took down the shelves and sign. The rent was 450 dollars annually, payable quarterly. There was a barkeeper there; Blume was back and forward. Blume told me that he supplied the house with oysters, &c. He said that Gerding carried off all the money. Blume frequently complained to me of the way Gerding was acting after the assignment; carried on the business for Blume in the hope of paying Blume; instead of making any thing they sunk money. Blume always refused to pay the rent, but he continued in possession. Cross-examined.-Paper shown. This is the lease from M'Clurken to Gerding. Gerding carried on the establishment for Blume. The defendants then gave in evidence a written lease under seal, for the premises, from M'Clurken to Gerding, dated July 21, 1838, for the term of three years, at the annual rent of 400 dollars for the first year, and 450 dollars for each of the last two years. And also the deed of voluntary assignment by Gerding to Frederick Blume, the defendant, dated September 10, 1839, assign [Blume v. M'Clurken.] ing all his stock and estate, in trust, for the payment of his creditors, which was accepted by the assignee and recorded according to law. After this evidence had been given, the parties agreed that it should be considered in the nature of a special verdict, upon which the court should enter judgment for the sum of 112 dollars 50 cents, a quarter's rent, if the plaintiff was entitled to recover at all; or otherwise for the defendant. The defendant then contended: 1. That the plaintiff cannot recover here, because, from the evidence, there was no express assumpsit, and no implied assumpsit can lie in the name of the landlord against the assignee of the tenant, during the existence of the lease. The only remedy by action of the landlord being on the lease. 2. Blume was assignee of Gerding in trust for creditors, duly recorded, and is only answerable as such; and the action would have been premature even had he been sued as "assignee," he not having had time to settle his accounts. Nor is the claim of the plaintiff at all included in the assignment. 3. Even if the court should be of opinion that Blume was the tenant under Gerding, yet as he was subtenant during the continuance of the lease and interest of Gerding, he is answerable to Gerding and not to the original landlord. The court below was of opinion that the plaintiffs were entitled to recover and rendered a judgment accordingly. Van Amridge, for plaintiff in error, cited 2 Whart. 42. PER CURIAM.-It is clear that these equitable plaintiffs can have no remedy in the name of M'Clurken, which M'Clurken could not have had himself. In what relation, then, did he stand to Blume, the defendant? He had demised the premises, by a sealed lease, to Gerding for a term unexpired; and Gerding had assigned it to Blume. M'Clurken's remedy would have been covenant or debt, against Gerding, on the privity of contract; and against Blume, debt or covenant on the privity of estate. Such is the rule laid down in Walker's Case, 3 Rep. 22 b, and recognized in many modern cases. There could, therefore, be no implication of a promise to M'Clurken, who had leased the estate by specialty to Gerding, expressum facit cessare tacitum, and Blume was in under the same lease. Assumpsit for use and occupation is essentially an action ex contractu; and as there was no room for the implication of a promise in this instance, the action ought not to have been sustained. Judgment reversed. |