Duncans in Dauphin Co. PA Court Records Part 1


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised January 26, 2004


"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Thomas Sergeant & Wm. Rawle, Jun.; 2nd edition, revised and corrected; ("Sergeant & Rawle") Vol.14 pgs.242 to 252 (California State Law Library, Sacramento, 1/2004)
      M'ELEAR against ELLIOT and others; Supreme Court of Pennsylvania, Lancaster District, Lancaster; 14 Serg. & Rawle 242; November 14, 1826, Decided.
      In error. The plaintiff in error, Peter M'Elear, brought this ejectment in the District Court of Dauphin county, against the defendants in error, William Elliot, John Cowper, John Holland, Robert Boner, and Thomas Duncan, Esq., to recover possession of an island, containing about six hundred and seventy-seven acres, with the usual allowance, situate in the river Susquehanna, near the mouth of the Juniata.
      On the trial, the plaintiff offered in evidence the deposition of Robert Armstrong, for the purpose of showing, that the plaintiff, or those under whom he claimed, settled on and improved the island named in the writ, in the fall of 1749 or the spring of 1750, and constantly resided thereon from that time till the year 1802, except when driven off by the savages in Braddock's war; that they built houses on the island, cleared farms, and made it the constant place of residence of themselves and their families; this evidence to be followed by showing a warrant from the proprietary land office of the 13th of October, 1760, and a survey thereon in the name of the proprietaries of Pennsylvania, on the 13th of November, 1760, of this island, returned into the land office July 12th, 1763, and there accepted.
      The defendants objected to the evidence offered by the plaintiff, and, in support of their objection, read in evidence to the court, a number of papers, for the purpose of showing that by the usage of the land office, both in the time of the proprietaries and since their estates became vested in the commonwealth, islands in the rivers Susquehanna, Schuylkill, and Delaware, were never granted on the common office terms, and were never subject to any right of preemption derived from improvement or settlement.
      The court was of opinion, that a right to an island in the Susquehanna might be acquired by settlement and improvement in the year 1749; but that the evidence offered, being of an improvement right in 1749; and continued to 1802, since which, the plaintiff, and those under whom he claimed, had been out of possession, the right was lost by the negligence of the plaintiff to institute his action for more than seven years, and was therefore barred by the 5th section of the act of the 26th of March, 1785; and that the evidence offered, being of facts, which if received, would not constitute a title in the plaintiff, or give him a right of entry, ought to be rejected.
      To this opinion, the counsel for the plaintiff tendered a bill of exceptions.
      The deposition rejected by the court, was, in substance, as follows:
      The deponent first saw the island in dispute, in the year 1750, when Francis Baskin, Joseph Thornton, and John Clark were living, and had improvements on it. These persons lived on their improvements until after Braddock's defeat, in 1755, when they were driven off by the Indians. In the autumn of the year 1760, Francis Baskin, his son-in-law, Alexander Stein, and George Clark, lived on the mainland in the neighbourhood of the island, and worked on it; and in the spring of 1761 they moved their families, and resided on it. In the spring of 1766, the deponent saw Patrick M'Elear, deceased, living on Joseph Thornton's improvement, where he continued to reside until the time of his death. In April, 1766, Michael Hawen, son-in-law of Patrick M'Elear, lived on the island, between Clark's and Stein's places. Patrick M'Elear purchased Thornton's improvement, and also the claim of James Baskin, (brother of Francis,) who had a bare claim without having made any improvement. Francis Baskin and George Clark both lived on the island to the time of their death. Francis Baskin had two sons William and George, to whom he left his improvement, they paying their sisters their portions. William had the upper part, and George the lower. William paid his sisters their portions. After the revolution, George Baskin went to the western country, and Cornelius Atkinson moved into his house, (the house in which George Baskin had lived after his father's death.) William Baskin lived in his father's old house on the island until Mr. Duncan, one of the defendants, bought. The deponent did not mention of whom Mr. Duncan bought, nor what he bought. Neither did he know in what year William Baskin left the island; but he knew that it was after the year 1800, when he moved off, and gave possession to Mr. Duncan, who put a tenant there. The deponent said, that two of the M'Elears (of whom, he thinks, Thomas was one, but does not know which of them was the other,) moved away with Baskin; but he asked whether they delivered possession to Mr. Duncan, he answered, that "he could not tell, -- he was not present, -- they all moved off together.
      The cause was twice argued in this court, first, on the 16th of May, 1825, and again on the 7th of November, 1826.
      COUNSEL: J. Fisher and Douglass, for the plaintiff in error, made three points:--
      1. That the deposition of Robert Armstrong ought to have been received in evidence.
      2. That the plaintiff was not barred by the 5th section of the act of the 26th of March, 1785.
      3. That the plaintiff ought to have been permitted to prove his possession of fifty-three years.
      1. The opinion of the court below was, that in the year 1749, islands might be acquired by improvement. To this the plaintiff assented, and no exception having been taken, the point is not before this court. It is not, however, difficult to show, that this opinion was correct. The custom of the land office, which the defendants endeavoured to prove, did not, according to the evidence produced go further back than the year 1760, at which period the proprietaries issued their warrant for the survey of all unappropriated islands for their use. But the title under which the plaintiff claims, commenced as early as the year 1749, before this description of property had been separated from the general mass of the proprietary estate, and was therefore founded in as strong an equity as any other title originating in settlement and improvement. Evidence has been received of an improvement even within the reputed bounds of the manor of Springettsburg. Lessee of Bonuet v. Devebaugh, 3 Binn. 188. If the cause should go back to another jury, it will be easy to show, that islands were, during the period alluded to, taken up by common warrants. There never has been a direct decision of this court upon the point, though there are dicta of the judges, that islands are not the subjects of settlement rights.
      But although the court was right in this opinion, it erred in the rejection of the deposition of Robert Armstrong, under the idea that the plaintiff's title was barred by the 5th section of the act of the 26th of March, 1785, 2 Sm. L. 299. It was not offered merely to prove a title by improvement. The plaintiff was not called upon to state with what view he offered it, nor was it offered for any particular purpose, or to establish any particular point. If, therefore, it was evidence for any purpose, it ought to have been received. It contained a great variety of matters, the decision of which, and the inferences to be drawn from them, exclusively belonged to the jury; and the court, by deciding upon the facts to which they related, and giving their opinion upon their own decision of what they ought not to have interfered with, withdrew the case from the jury altogether. Whether the plaintiff, or those under whom he claimed, was in possession at any time within seven years, prior to the institution of the suit, was a fact, which the jury, and not the court, ought to have decided. If the evidence offered and rejected, was not alone sufficient to entitle the plaintiff to recover, it was his first step towards showing title, which he was prepared to follow up with other evidence. The evidence offered, was the deposition of Armstrong and the proprietary warrant and survey; but the offer of these, did not preclude the plaintiff from offering other evidence. He might have shown a title derived from the proprietaries after the return of their survey; or if there was no direct proof of a conveyance, the jury, after so long a possession, both before and after the survey, might have inferred a grant. How far the evidence conduces to the proof of a fact, the jury exclusively are to decide, and the only mode of withdrawing the decision from them, is by a demurrer to the evidence. The operation of the act of limitations must always arise upon facts, which must be found by the jury or agreed upon by the parties, and no court in Pennsylvania ever undertook to decide whether a party was barred, without submitting the facts to the jury; nor is there any precedent of the court stopping the course of the plaintiff's evidence, in order to let in evidence on the part of the defendant, for the purpose of showing that the evidence the plaintiff was about to offer, was improper. Whether, therefore, the deposition be viewed by itself, or in connexion with other evidence which the plaintiff might have given, the conclusion cannot be avoided, that the court usurped the province of the jury in refusing to permit it to be given in evidence ...
      2. But, supposing that the court had a right to determine the facts, they erred in their construction of the 5th section of the act of the 26th of March, 1785, which does not apply to persons having imperfect rights, who were in possession at the time of its enactment. That section declares, that no person or persons who now hath or have any claim to the possession of any land, &c., founded upon any prior warrant, whereon no survey hath been made, or in consequence of any prior settlement, improvement, or occupation, without any other title, shall hereafter enter or bring any action for the recovery thereof, unless he, she, or they, or his, her or their ancestors or predecessors, have had the quiet and peaceable possession of the same within seven years next before such entry, or bringing such action. Claims existing at the time of the passage of the act, are alone embraced by its provisions, and the true legal definition of a claim excludes the case of the plaintiff from the operation of this statute. A claim is defined, in 1 Jacobs' Law Dictionary, 470, to be a challenge of any thing out of a man's possession. But the plaintiff derives his title under persons who were in possession when the act was passed, and therefore cannot, with any propriety, be said to have had a claim to the possession of land, which they were then actually enjoying. In all the cases decided under this act of assembly, the party was out of possession at its date. Besides, the plaintiff did not found his right to recover, upon settlement and improvement only. He claimed also under the warrant and survey made for the proprietaries, which he contended enured to his own use, having been in possession long before the date of the warrant; and the 5th section of the act in question, does not apply to cases in which the party has any other title, than those therein specified.
      3. The plaintiffs ought to have been permitted to prove a possession of fifty-three years, which was sufficient to warrant a presumption of title. Such presumptions have often been made after much shorter periods.
      G. Fisher and Elder, for the defendants in error.
      The plaintiff was called upon to disclose his title, and he did so. He offered nothing but the deposition of Armstrong, and the warrant and survey for the use of the late proprietaries. The deposition was offered to prove a right by settlement and improvement; and where a party offers evidence for a particular purpose, he shall be held to that purpose in a court of error. The title set up by the plaintiff was found to be defective upon his own evidence, and therefore objected to, as irrelevant. It is for the court to decide on the competency of evidence, and if no good title was shown, admitting every thing stated in the deposition to be true, the court was right to reject it. Even supposing, therefore, that the judge was wrong in his opinion upon the act of limitations, yet if the deposition was inadmissible upon other grounds, the judgment cannot be reversed; for however bad the reasons for a decision may be, yet if the decision itself be right the judgment must stand. The question, then, before this court is, whether an improvement gives title to an island in the Susquehanna? The law is perfectly clear, that it does not. No instance can be found of an island sold either by the proprietaries or by the commonwealth, except by special contract, and always at a higher price than the common office terms. The usage of pre-emption rights never extended to this description of property. Claiming, therefore, under those who entered as trespassers, the plaintiff can never acquire an equity. That islands were not open to acquisition in the ordinary way, like other lands, is not only proved by the usage of the land office, proved by the papers read in evidence, but by a long course of legislation and judicial opinion. On the 13th of October, 1760, a warrant issued to survey the unappropriated islands in the Susquehanna, Delaware, &c., and to make returns of them for the proprietaries. In pursuance of this warrant, a survey was made of the island in dispute on the 13th of November following, which was returned and accepted on the 12th of July, 1763. It became part of the private estate of the late proprietaries, and, was secured to them by the act of the 27th of November, 1779, 1 Sm. L. 479, which vested in the commonwealth the estates of the proprietaries, saving to them their tenths or manors, duly surveyed and returned into the land office on or before the 4th of July, 1776. After the revolution, the same policy which the late proprietaries had adopted in relation to islands, was continued by the commonwealth. They were never granted on the common terms. In the act for establishing a land office, of the 9th of April, 1781, Purd. Dig. 470, and its supplement of the 25th of June, the same year, (Purd. Dig. 472,) islands are not mentioned. The 13th section of the act of April, 1785, 2 Sm. L. 317, expressly excepts islands from the ordinary terms of grant, and directs that they shall be sold by the special order of the president and council, by public auction. The act of the 6th of March, 1793, 3 Sm. L. 93, "directing the sale of certain islands in the Susquehanna," points out the mode of sale, and gives two years to settlers to purchase, if they desire to do so. The act of the 27th of January, 1806, 4 Sm. L. 268, likewise makes special provision for the sale of certain unappropriated islands in the Delaware, Ohio, and Allegheny. The opinions of the judges of this court fully support the argument deduced from legislative acts, and general opinion. In Hunter v. Howard, 10 Serg. & Rawle 243, an ejectment for an island in the river Allegheny, Duncan, J., in delivering the opinion of the court, says, that islands were never subject to the common office terms. And, in a more recent case, Shrunk v. The Schuylkill Navigation Company, (Ante, page 71) in which the opinion of the court was delivered by TILGHMAN, C. J., it is declared, that islands have never been open to applicants on the usual terms of office. The foundation of title by settlement is, that the proprietaries held out such titles to the people, but the offer never extended to islands. Admitting, therefore, that the plaintiff was the son of Patrick M'Elear, the former settler, as to which however the deposition is silent, he can derive no equity from the settlement, because he claims under a mere trespasser.
      Another bar to the plaintiff's recovery is, that he claims under a violation of the law, which forbids a settlement on lands not purchased of the Indians. His evidence goes to show, that there was an improvement on the island, which must have been made prior to the date of the Indian purchase, in which it was included. It appeared, that in 1750 there were peach trees in bloom on this improvement, which must have been planted prior to the 22d of August, 1749, the date of the purchase. It has been repeatedly decided, that no evidence can be received of a settlement on land not purchased from the Indians. An act of assembly was necessary to confirm the title of certain persons holding Biles's island, situate in the river Delaware, about a mile below the falls, purchased by the Biles family of the Indians, in the year 1680. Act of the 1st of February, 1808.
      The possession relied upon by the plaintiff, was not of a character from which a presumption of title could arise. No period short of that prescribed by the act of limitations, will raise the presumption of a grant, founded upon the lapse of time only. In the present instance, the act of limitations would not attach before the 26th of March, 1803; but Mr. Duncan came into possession in the year 1802.
      As his first step, the plaintiff ought to have shown that the title was out of the commonwealth. Having done this, proof of seisin in those under whom he claimed would have been sufficient against a party who showed no title. A naked possession is a good title, until some one shows a better right. But if it be voluntarily abandoned, it cannot be recovered in ejectment. This is precisely the present case. The deposition states, that Mr. Duncan purchased the island; that Baskins moved away, and gave Mr. Duncan possession, and that the M'Elears moved away at the same time; from which it is clear, that the M'Elears also gave up the possession to Mr. Duncan. The authorities are conclusive, that, under such circumstances, the possession cannot be recovered from him.
      The plaintiff, far from deriving an advantage from the warrant and survey for the use of the proprietaries, presents, by his own evidence, an additional obstacle to his recovery. He claims adversely to this title, and shows a title in a third person, under which the defendants may protect themselves. Act of the 21st of March, 1806. Act of the 13th of April, 1807, Purd. Dig. 145. Besides, the defendants asserted title under the late proprietaries, which was not denied.
      But if the plaintiff had a title by improvement, and moved off, and remained out of possession more than seven years, he is barred by the 5th section of the act of the 26th of March, 1785, which we contend extends, as well to those who were then in possession, as to others. The spirit of all the decisions on this point is, that where a man had a claim by warrant only, or by settlement only, prior to the passage of that act, he could not recover in ejectment, unless he had been in possession within seven years before the commencement of the suit. Whether he was in possession at the date of the act or not, is immaterial, provided he was not in possession within the period prescribed. The evidence shows no other than a title by settlement, originating before the passage of the act of 1785, and the court can presume no other; and this title was abandoned to the defendants in the year 1802.
      The opinion of the court was delivered by TILGHMAN, C. J. This was an ejectment for an island in the river Susquehanna, containing about six hundred and seventy-seven acres, with the usual allowance, situate near the mouth of the Juniata. The cause came to trial in the District Court for the county of Dauphin, when certain evidence being offered by the plaintiff, it was objected to by the defendants, and rejected by the court; whereupon the counsel for the plaintiff took an exception, which is now the subject of consideration.
      The evidence offered by the plaintiff, was the deposition of Robert Armstrong, taken under a rule of court, and to the following effect. [His Honour here stated the substance of the deposition.] This is the substance of Armstrong's deposition, from which it remains doubtful, of whom, and how much Mr. Duncan purchased, and whether he received possession from the M'Elear family. Peter M'Elear (the plaintiff,) is not mentioned in the deposition, so that it could not appear without further evidence, how he stood related to Patrick M'Elear, deceased. The plaintiff also offered in evidence a warrant, dated the 13th of October, 1760, to survey this, and other islands in the Susquehanna, for the use of the late proprietaries of Pennsylvania, and a survey in pursuance thereof, the 13th of November, 1760, which was returned, and accepted, in the office of the surveyor general, the 12th of July, 1763. When the counsel for the defendants objected to the plaintiff's evidence, they produced and read to the court a number of papers, tending to show the custom of the land office, both in the time of the proprietaries, and since their estates became vested in the commonwealth; from which they inferred, that islands were never granted on the common office terms, and were never subject to any right of pre-emption, to be acquired by improvement or settlement. The District Court was of opinion, that a right to an island in the Susquehanna, might be acquired by settlement and improvement in the year 1749. Nevertheless, they rejected the plaintiff's evidence, on the ground of his being barred of his action by the act of limitation, (26th of March, 1785, sect. 5.) In this opinion, it was assumed, that the evidence of the plaintiff showed no title except by improvement and settlement, without warrant or survey, for, if he had any other title, it is evident, that he was not barred by the 5th section of the act of limitation. The plaintiff took no exception to the opinion, that the right to an island might be acquired by improvement and settlement in the year 1749, because it was in his favour. It might be thought, that, under these circumstances, this court would be going out of their way, should they now express an opinion on that point. They therefore abstain from it, and desire it to be understood, that no inference, one way or the other, is to be drawn from their silence. Neither shall we give an opinion what the law would be, under the act of limitation, (section 5,) if the evidence offered by the plaintiff disclosed no other title than by improvement and settlement, without warrant or survey; because that is not the case. It is to be remarked, that when the plaintiff offered his evidence, he did not say, either that it was for no other purpose than to prove a title by improvement and settlement, or that he intended to offer no other evidence. The defendants might have called on him to declare the purpose for which the evidence was offered; but they did not. The question is, therefore, whether the evidence was not at least one step towards a title other than by improvement and settlement. We will suppose, merely for the sake of the argument, that Patrick M'Elear could legally acquire no title against the proprietaries by settlement, (which is stating the case as strongly as possible against the plaintiff,) it does not follow, that a possession of upwards of fifty years, continued from father to son, was not evidence of title sufficient to recover against one who showed no title. Suppose the evidence had been given, with additional evidence connecting the plaintiff's possession with that of Patrick M'Elear, and the defendants had demurred to it; or suppose the defendants, without giving any evidence of their own, had gone before the jury on the evidence of the plaintiff, how would they have stood? By the warrant and survey, this island had been separated from the general mass of property held by the proprietaries, and appropriated to their particular use. And being thus appropriated, it was excepted from the general proprietary estate, which was vested in the commonwealth by virtue of the act of the 27th of November, 1779, and remained the property of the proprietaries. There was, then, a period of thirty-nine years, between the return of the survey in 1763, and the entry of Mr. Duncan, when he received possession from Baskin in 1802, during the whole of which, possession had been held by Patrick M'Elear, deceased, or those from whom he received possession, or those claiming under him. Although the deposition of Armstrong did not state that the plaintiff was of the family of Patrick M'Elear, yet the plaintiff might have proved that fact by other evidence, especially as it appears by the bill of exceptions, that he claimed under an uninterrupted possession from the first settler to himself. I have said, that Mr. Duncan received possession from Baskin, because it is expressly said so in Armstrong's deposition. He may, perhaps, have received possession from some, or all, of the M'Elear family also, but the deposition does not say so, and the court cannot infer it. It is a very material fact, which none but the jury could decide. Now, in a contest between the plaintiff and strangers, without title, (for so the defendants must be considered, having shown no title except the possession received from William Baskin, which could not affect the plaintiff,) could the jury do otherwise than presume, that the plaintiff's possession was by permission of the late proprietaries and their heirs; and consequently, his title good against all but them, or those who claimed lawfully under them? In Woods, &c. v. Lane, 2 Serg. & Rawle 53, it was the opinion of this court, that a bare possession was good title against one who showed no title. The case would have been very different, if it had appeared, either that the M'Elears had abandoned their possession, or given it up to Mr. Duncan, or that Mr. Duncan had acquired title from the late proprietaries. A title thus acquired would have taken away all presumption of title in the plaintiff, by virtue of a license from the owners of the soil; and, as to a presumption of a grant in fee simple (as contended by the counsel for the plaintiff,) there was no ground for it, because such a presumption, when resting on time only, can never be raised, on less time than that prescribed by the act of limitation. But whatever the probability may be, of a conveyance from the proprietaries to Mr. Duncan, we see nothing of it on the record, and therefore cannot suppose that it exists. Our present duty is confined to a determination, not whether the evidence offered proved a complete title, but whether it ought not to have been admitted. I am of opinion that it ought, and therefore the judgment should be reversed, and a venire de novo awarded.
      Judgment reversed, and a venire facias de novo awarded.

"Reports of cases argued and determined in the Supreme court of Pennsylvania, May 1832 to June 1833" by Frederick Watts; 2nd edition; ("Watts") Vol.1 pgs.322 to 329 (California State Law Library, Sacramento, 1/2004)
      DUNCAN against DUNCAN; Supreme Court of Pennsylvania, Lancaster District, Lancaster; 1 Watts 322; May, 1833, Decided.
      Appeal from the circuit court of Dauphin county, held by Justice Rogers.
      This was an action of ejectment for an island at the junction of the Susquehanna and Juniata rivers, by Stephen Duncan against Rebecca Duncan.
      The plaintiff, in order to support his title, gave in evidence the will of the honourable Thomas Duncan, containing this clause: "my island, bought of John Reed, at the mouth of the Juniata, I desire to be appraised by three persons, to be selected by my executors, and if my son Stephen will accept the same at the valuation, then it is to be conveyed to him in fee simple, he securing the purchase money by mortgage on the premises, which purchase money is to be considered as part of my estate; if he refuses to take it, then it is to be sold by my executors." He then gave in evidence, the appointment of the appraisers; their valuation of the property; and his acceptance of the same at the valuation; and then offered in evidence a conveyance from Martha Duncan, executrix, Edward J. Stiles and John D. Mahon, executors of Thomas Duncan, esquire, deceased, to Stephen Duncan. This conveyance was signed by the grantors, and opposite the name of each, there was an horizontal slit in the parchment on which it was written, and a blue ribbon was drawn through, extending along all the names. The acknowledgement by John D. Mahon and Edward J. Stiles, was made before a justice of the peace, and that of Martha Duncan was made before the Chief Justice, and the certificate of each, in the body of it, purported to be under their hands and seals, but the seals were such as those opposite the names of the grantors. The ribbon was not attached to the parchment otherwise than that it passed through the slits in the parchment.
      The defendant objected to this conveyance, on the ground that it was not sealed and that the certificate of the justice of the peace and that of the chief justice were not under seal. These objections were sustained by the court, and the plaintiff took a nonsuit, which he afterwards moved the court to take off, and assigned these reasons:
      1. The court erred in rejecting the conveyance offered in evidence.
      2. The plaintiff should have been permitted to maintain his action upon the evidence given, without the conveyance.
      The court overruled the motion, and the defendant appealed. The same reasons were assigned in this court. (MAD: arguments of counsel omitted here)
      The opinion of the Court was delivered by KENNEDY, J. -- This is an appeal from the decision of the circuit court, lately held at Harrisburgh, for Dauphin county. On the trial of the cause before his honour, Mr Justice Rogers, the plaintiff offered to read in evidence an instrument of writing, purporting to be a conveyance from Martha Duncan, executrix, Edward J. Stiles and John D. Mahon, executors of the last will of the late Hon. Thomas Duncan, deceased, to Stephen Duncan, the plaintiff: which was objected to by the counsel of the defendants, because the certificate of the acknowledgement of the execution thereof, by Martha Duncan, which appeared to have been taken by the chief justice of this court, and the certificate of the like acknowledgement of Edward J. Stiles and John D. Mahon, the other grantors, which appeared to have been taken by Archibald Ramsay, stating himself, in the body of the certificate, to be a judge of the court of common pleas of Cumberland county, in this state, but who was, in fact, only a justice of the peace of that county, were given by these officers, respectively, under their hands merely, without being under their seals.
      Two questions have been raised upon the argument. First, Whether, in point of fact, a seal is not affixed to each of the certificates? And second, If not, whether it be requisite, under our recording acts, that such certificate should be given under the seal of the officer taking the acknowledgement? (MAD: much more omitted here)
      These acts are all in pari materia, and must be construed as one act; the direction therefore contained in the first, that the certificate of the officer shall be under his hand and seal, must be considered as running throughout the whole, and prescribing the same mode for certifying acknowledgements or probates taken within the state by any of the officers to whom such authority has been given by these acts of assembly. I am aware that there is a very short note of a case, Whitmire v. Napier, 4 Serg. & Rawle 290, which seems to militate against this construction. It does not appear, however, that the point was argued, nor how the court came to the conclusion that is there mentioned; and I am strongly inclined to believe that it was done without argument, and without a full examination of all the acts of assembly on the subject: by them we are bound, and must make our decision accordingly; and after a careful examination of them all, I am convinced, beyond the shadow of a doubt, that whether the acknowledgement or probate be made before a judge of the supreme court, president or assistant judge of the common pleas, alderman or justice of the peace, within this state, it must be certified under his hand and seal, otherwise the deed or instrument can not be admitted in evidence, without other proof of its execution.
      The decision of the circuit court is affirmed.

"Reports of cases argued and determined in the Supreme court of Pennsylvania from May to September 1835" by Frederick Watts; 2nd edition; ("Watts") Vol.4 pgs.24 to 29 (California State Law Library, Sacramento, 1/2004)
      EVANS against DUNCAN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 4 Watts 24; May, 1835, Decided.
      Appeal from the decree of the court of common pleas of Dauphin county, appropriating the proceeds of the sale of the real estate of Thomas Duncan deceased. All the facts which gave rise to the questions of law determined, are sufficiently stated in the opinion of the court.
      The opinion of the Court was delivered by KENNEDY, J. -- The appeal in this case is from a decree of the court below, appropriating the money arising from a sale made by the sheriff of a tract of land called the "Big Island," situate in the Susquehanna river: which was taken in execution and sold as the property of Thomas Duncan deceased, at the suit of some of his creditors; and also at the same time as the property of his son Stephen Duncan to whom he had devised it, at the suit of some of his creditors. The money arising from the sale being 13,775 dollars, a sum not sufficient to satisfy the claims of both sets of creditors, nor indeed the aggregate of either, was brought into the court below by the sheriff, that it might be appropriated by the order of the same. The creditors of the father claimed to have it applied towards payment of their claims. This was opposed by the creditors of the son, who alleged that they ought to have it. The court below, after a hearing of the parties, on the 15th of July 1834 made a decree in the following terms: "the court order the costs to be deducted from the money in court in this case; the residue to be distributed pro rata among the creditors of Thomas Duncan deceased, who have presented their claims for adjudication, except that of George Harrison rejected; and except the claims of James Hopkins, Esq. and George Fisher, Esq. which have been allowed to be presented for adjudication, but are rejected because they are not debts of Thomas Duncan, and the services on which they are founded were rendered at the instance of Stephen Duncan, not in the character of executor of Thomas Duncan, but in that of devisee. George W. Harris, administrator of R. T. Jacobs deceased, is ordered to be substituted instead of the creditors of Thomas Duncan, who have received the money in court, so far as they have been paid, against the residue of the estate of Thomas Duncan, to the extent of Stephen Duncan's interest in the 'Big Island,' after deducting from the value thereof that portion of the debts, charges and legacies, to which it was legally liable, as the estate of Thomas Duncan. Mr. Harris to be substituted so far as his judgment, as administrator of Jacobs, against Stephen Duncan, viz. No. 12 in the common pleas of Dauphin county of November term 1832, would be entitled to be paid agreeably to its priority out of the proceeds of sale of the 'Big Island,' if the creditors of Thomas Duncan had not claimed the proceeds. The following claimants are ordered to be substituted instead of creditors of Thomas Duncan, upon the same terms as the administrator of R. T. Jacobs, to the extent of their claims respectively, agreeably to their priorities against Stephen Duncan, viz. Irvine and Huston v. Stephen Duncan and John D. Mahon for 1210 dollars 99 cents, by report of arbitrators, filed the 8th of March 1832; Hummel and Lebkickler v. The same, for 1401 dollars 70 cents, by judgment entered the 12th of August 1832."
      From this decree Mr Harris, the administrator of R. T. Jacobs, appealed; and James Hopkins, Esq. did the same.
      First, it is alleged that the court below erred in not appropriating the money to the payment of the debts owing to the creditors of Stephen Duncan, which had become liens upon the land before it was sold. This is contended for on the ground that Thomas Duncan, by his will, after devising the land from which the money has been raised, to his son Stephen Duncan in fee, has appropriated other lands and funds for the payment of his debts: and that although the creditors of Thomas Duncan, in seeking payment of their debts, are not confined or restricted exclusively to look to the funds and property which he has set apart for that purpose in his will; yet having them and the residue of his estate all bound for the payment of their debts, equity will compel them, as they have two funds, to resort to that fund which will enable the creditors of Stephen Duncan to have their debts paid also. But the creditors of Thomas Duncan, having the eldest claim upon the fund in the court below and being entitled to be paid immediately out of it, cannot be delayed, but have a right to be preferred, unless some good reason, consistent with the principles of justice as well as equity, can be given why it should not be so. It may be very advantageous and all important to them to receive their money with as little delay as possible; and being entitled to have received their debts long since, if they could have got them, it would, therefore, be contrary to both law and equity to pass a decree that would in its effect delay them in the receipt thereof a single minute longer than is indispensably necessary for a final determination of the controversy. The law considers it fraudulent to hinder or delay creditors in receiving their just debts after that they have become payable. But it is self-evident that to decree the money in court to the creditors of Stephen Duncan, would inevitably delay the creditors of Thomas Duncan, in the receipt of their debts, to a future period almost unknown. It would necessarily postpone the payment of them until money for that purpose could be raised from the sale of other lands, which might require considerable time, perhaps years, to accomplish it.
      There are also other objections. Many of the lands appropriated by Thomas Duncan, in his will, to the payment of his debts, lie out of the state, in different parts of the union; and their value, as well as that of those lying within the state, set apart for the same purpose, has not been shown; and for aught that appears they may be inadequate. Such a decree, then, as was asked for on the part of the appellants, might have defeated the creditors of Thomas Duncan in receiving full payment of their claims at any future time. The court below were therefore clearly right in giving the money to the creditors of Thomas Duncan.
      The next exception to the decree of the court is, that they awarded the money to persons claiming to be creditors of Thomas Duncan, without their producing sufficient evidence of the fact. This exception does not appear to be sustained, and indeed has been given up.
      The third exception is, that the court erred in not deciding which of the lien creditors of Stephen Duncan were entitled to substitution, and to what extent. Believing, however, as I do, that part of the decree which subrogated the creditors of Stephen Duncan to the rights of the creditors of Thomas Duncan, and authorized them to proceed upon the securities of the latter against the residue of the estate of Thomas Duncan, to be erroneous if not absolutely void; I shall assign my reasons for thinking so, after having disposed of the fourth and last exception, to which I will now pass.
      The last exception is, that the court in decreeing substitution, gave priority to the award and judgment in favour of Irvine and Huston v. Stephen Duncan and John D. Mahon, over the judgment in favour of George W. Harris, administrator of R. T. Jacobs v. Stephen Duncan. The objection to this preference given by the decree of the court is, that the award in favour of Irvine and Huston, though of earlier date than Harris's judgment, was against John D. Mahon alone, and not against Stephen Duncan, and therefore no lien upon the property sold. If the fact were so, the objection would be insuperable. But it appears from the report of the arbitrators accompanying their award, that S. Duncan being joined with John D. Mahon in the original writ as a co-defendant, though not served with it, attended as a party before the arbitrators at their different meetings, and made defence against the claim of the plaintiffs. It is true that it does not distinctly and expressly appear, from the report of the arbitrators, that Stephen Duncan made himself a co-defendant with John D. Mahon, upon whom the writ was served, before them: and if the award had been suffered to remain unappealed from, it might probably have been considered doubtful whether he had appeared before the arbitrators with a view of being considered a co-defendant, and was embraced as such by the award. But after the award was filed in the prothonotary's office, he appeared there within the twenty days allowed by law for that purpose, and entered an appeal from it expressly for himself as well as for Mahon. Now if he had not intended to make himself a party to the case, while it was pending before the arbitrators, and had not considered himself as embraced along with Mahon in their award, it is impossible to assign any rational motive for his entering an appeal for himself. It is not sufficient, as has been alleged, that he did it because he was a co-partner with Mahon, and therefore interested, notwithstanding their award was against Mahon only. For if he was likely to be injured by an erroneous award from such connexion with the party against whom it was made, it would have been all sufficient for him to have entered an appeal for Mahon alone. But it was impossible for him, from the very nature of the thing itself, to have entered an appeal from the award for himself, unless it existed against him as a co-defendant. And by his doing so he has relieved the case from all doubt that might otherwise have hung over it. The writ commencing the suit was sued out against him and Mahon jointly, and though not served by the sheriff upon him, he had a right to come in and appear to the action at any time while depending, and take defence as a co-defendant; and having done so, as it would appear in this case, he is bound by the award until it shall be reversed. The court were right also in permitting the declaration to be amended so as to accord with Duncan's subsequent appearance in the action to answer the plaintiffs.
      I come now to notice the substitution which was decreed by the court. It appears to me that there are various objections to it. In the first place, it strikes me very forcibly, that for want of the parties being before the court, whose rights may be affected by the operation of it, the court had no power or authority to make it. The other devisees named in the will of Thomas Duncan, besides his son Stephen, were not parties to the proceeding, nor could they with propriety be so considered; yet the decree for substitution has put it in the power of the judgment creditors of Stephen Duncan, who had acquired liens by their judgments upon his interest in the land sold, to proceed and levy their debts out of the property devised to them. The ground upon which the creditors of Stephen Duncan claim a right to be substituted, is that of his being a devisee under the will of Thomas Duncan, and entitled as such to the Big Island, the land sold, upon which they had acquired liens as a security for the payment of their debts against him. They allege that, this devise to Stephen Duncan having been taken from him, and from them too, to pay the debts of the testator, Stephen Duncan the devisee is entitled to have contribution for the loss from the other devisees; and that they as creditors of Stephen Duncan, having thereby lost the security which they had for the payment of their debts, by virtue of their liens on the devise, have a right to be placed in his shoes, and to claim the benefit of his rights. Now it is obvious that the substitution in this case has been made to furnish the judgment creditors of Stephen Duncan with the means of obtaining, in his stead, contribution from the other devisees claiming under the will of Thomas Duncan; and that it is their rights alone, upon this principle, that are to be operated against by the decree of contribution. It would therefore be contrary to the first principles of justice that they should be condemned to pay money, or to have their rights disposed of for the benefit of others, without an opportunity of being heard first. They might, for aught that appeared to the court when they made the decree, if previous notice had been given them, have shown good cause why contribution should not be allowed. They perhaps might have shown that they were as great losers, from a like cause, as Stephen Duncan. Besides, the decree is exceptionable for uncertainty; and could not, I suppose, have been made easily otherwise for want of the necessary data to fix on any certain sum for which contribution ought to be had, admitting the right to exist. It would seem therefore as if it had been left to the discretion of the creditors themselves of Stephen Duncan, in whose favour the decree was made, to assess and levy such amount as they might think right. There is also a third objection, of very considerable moment as it appears to me, which is, that the decree has put it in the power of the creditors of Stephen Duncan, who had no right whatever to the land sold, except what he derived through the will, from the bounty and favour of the testator, and which could not therefore be asserted in any form that would contravene the other provisions expressly contained in it, to interfere with, and to prevent the administrator cum testamento annexo, from selling, in the manner that may be most advantageous to those concerned, the real estate of the testator, as required by his will. The testator has directed all his estate, except what he devised and bequeathed specifically, to be sold by his executors, and the proceeds thereof, after paying his debts, the charges of sale and the legacies bequeathed, to be disposed of in the manner therein directed. It is therefore manifest, that to permit the creditors of Stephen Duncan to proceed ad libitum to levy upon and sell the estate of the testator by the sheriff at forced sales, would not only cause a great sacrifice of the interests of those devisees and legatees named in the will, and quite as much the objects of the testator's bounty as Stephen, but would measurably thwart the whole design of the testator. Such power certainly ought not to be granted to Stephen Duncan himself, and consequently not to his creditors, who do not pretend that they have a right to be placed in any better situation than himself. It would be most inequitable, as well as unjust, to permit either him or them to do any thing that would militate against the design of the testator, as expressed in his will; and who had the right to regulate the disposition of his estate as he pleased, so far as his devisees and legatees were concerned, and against whose wishes they have no right to ask a benefit under the will.
      The remaining part of the estate of the testator, excepting that portion specifically devised and bequeathed, will no doubt be converted into money as soon as it can be accomplished without making too great a sacrifice of it; when, if the right to contribution exists, it may be enforced by a proper course before a competent tribunal, when all concerned will have a full opportunity of being heard.
      With regard to the appeal taken in this case by Mr Hopkins, the only question involved in it seems to be a matter of fact, and from the evidence, we cannot say that the decree given by the court below, in respect to his claim, was wrong. That part of the decree of the court appropriating the money as they did, is affirmed; but that part of it decreeing the substitution, is reversed; and the costs of the appeal are directed to be paid by the appellants.
      Decree accordingly.

"Cases Argued and Decided in The Supreme Court of the United States; December terms 1854-5-6-7; United States Supreme Court Reports Vols. 58, 59, 60, 61" by Stephen K. Williams; Vol.15 Lawyer's Edition pgs.879 to 882; Vol.61 U.S. pgs.186 to 194 (El Dorado Co. CA Law Library 12/2003) (MAD: see also Northumberland Co. PA and Cumberland Co. PA)
      ISAAC M. FISHER, Appt., v. JOHN HALDEMAN, JACOB S. HALDEMAN, RICHARD J. HALDEMAN, and ROBERT J. HALDEMAN, Executors of JACOB HALDEMAN, Deceased, and THOMAS CHAMBERS, Administrator de bonis non of THOMAS DUNCAN, Deceased; Supreme Court of the United States; 61 U.S. 186; 15 L. Ed. 879; 20 HOW 186; February 22, 1858, Decided; December 1857 Term.
      This was an appeal from the Circuit Court of the United States for the eastern district of Pennsylvania.
      The bill was filed by Fisher, a citizen of the State of Delaware, against the appellees, claiming to be the equitable owner of an island in the Susquehanna river, and alleging that the appellees had become possessed of the legal title by a series of frauds. The bill was quite voluminous, occupying upwards of seventy pages of the printed record, and then there was an amended bill of thirteen pages more. The substance of it, as well as the other branches of the case, are stated in the opinion of the court. In September, 1856, the Circuit Court dismissed the bill, and the complainant appealed to this court. (MAD: syllabus and arguments of counsel omitted here)
      Mr. Justice GRIER delivered the opinion of the court. The appellant filed his bill in the Circuit Court of the United States for the eastern district of Pennsylvania, claiming to be the equitable owner of an island in the Susquehanna river, containing about seven hundred acres, and praying that the respondents may be decreed to surrender to him the possession of the same, to deliver up their deeds and muniments of title, and account for the rents, issues, and profits.
      In order to ascertain the questions involved in the case, it will not be necessary to give an abstract of the bill or specify the allegations of the answer. A brief statement of some of the admitted facts and charges of the bill will suffice.
      It commences the history of the case with the first charter to and immigration of William Penn, the proprietor of Pennsylvania. But we do not think it necessary to go farther back than the year 1760. In that year, the proprietors, claiming that the islands in the Susquehanna and other navigable streams were their private property, had them surveyed and returned as such.
      About the year 1798, the persons under whom complainant claims were found by the agent of the proprietors in possession of the island, and claiming a right, from their long occupancy, to a pre-emption right as settlers. They had occupied parts of the island as far back as 1749 or 1750, some ten years before the proprietors had surveyed it; and though not in possession at that time, had afterwards returned. They were told by the agent for the Penns, that they had no title, and if they wanted a legal title they must purchase from the Penns, and that islands never had been subject to be taken up by settlement, as the other proprietary lands. These occupants refused or neglected or were unable to purchase; and about the year 1800, Thomas Duncan purchased from the agents of the Penns. Finding these occupants on the land, he told them they had no title; that islands had never been open to pre-emption by settlement, and that he was the purchaser from the Penns of the legal title. He demanded the possession of them, offering to pay them the value of their improvements, and for a release of their claim. They accordingly released their claim, gave up their possession, and received a consideration in money from Mr. Duncan, of about twenty shillings an acre. Mr. Duncan then took possession, and he and those claiming under him have had possession from that day to this, over fifty years.
      In Pennsylvania, occupants or settlers on land are never considered as holding adversely to the proprietors, or to the State, their successor. Where the land was subject to pre-emption in favor of settlers, those who had obtained an equity by virtue of such a settlement or improvement, had a good title as against subsequent purchasers. But until they paid the purchase-money, and obtained their patent or deed from the proprietor, no length of possession authorized a presumption of the payment thereof, or of a grant as against the proprietors or State.
      In order, therefore, to evade the effect of the release by the occupants, and the surrender of their possession to Mr. Duncan, who held the admitted legal bill, the bill charges:
      1. That Edmund Physic and John R. Coats, the agents of the Penns, combined and conspired with Thomas Duncan to defraud the settlers of their title to this island.
      2. That this fraud consisted in the assertion that "islands had never been subject to be appropriated as other proprietary lands, by settlement or location, but were treated as the private property of the Penns, and, as such, sold by special contract only."
      3. That the persons in possession, believing such to be the law, surrendered their possession and released their claim, whatever it might be, to Thomas Duncan, for the consideration of twenty shillings an acre, which was much less than the full value of the land.
      4. That this representation, with regard to the custom or traditionary law of the province of Pennsylvania, was not true, and that Mr. Duncan must have known it to be so, and therefore made a false representation of the law to the settlers.
      5. That the falsehood of this representation was not discovered till 1822.
      6. That suits were then instituted, in which the judgments were against the title of plaintiff, in consequence of erroneous or unjust decisions of the courts.
      Without noticing the objections to this bill on account of staleness, and the defence that Haldeman is a purchaser for valuable consideration without notice, it is plain that the whole foundation and superstruture of the case rests on this assumption, to wit: "That in 1749, by the law of the land, a pre-emption right to islands in the Susquehanna river could be obtained by settlement." If this be not so, the plaintiff's case falls to the ground, and the numerous other objections to this bill need not be noticed.
      Now, this is a question of fact, depending on the history and traditions of the province of Pennsylvania, of which the decisions of her own courts are the best evidence, and conclusive on this court. The order of survey of 1760, by which the islands of the Susquehanna, and this among others, were appropriated to the private use of the proprietors, together with the manors reserved, is itself prima facie evidence that the proprietors never considered these islands as open to settlement as other lands. And this inference is fully confirmed by the instructions given by William Penn, before he left England, to the three commissioner for the settling of the colony, in which he said: "Let no islands be disposed of to anybody, but let things remain as they were, in that respect, till I come." (Hazard's An., 530.)
      The State of Pennsylvania, by what was called the "divesting act," assumed, for a certain consideration, all the proprietary rights of the Penns over the colony, as distinguished from their private rights of property, and pursued the same policy which had been adopted by them as to islands in navigable rivers. The act of 18th April, 1785, orders islands in the new purchase to be sold for the best prices that can be gotten for the same, and declares, "all occupancy and every survey, claim, or pretence for holding the same islands by any other title, shall be utterly void."
      The statute thus recognised and continued the rule as it was found to have existed under the proprietary Government.
      By the common law, fresh-water rivers do not come within the category of navigable rivers, and the riparian owners had a right to all the islands in the river, "ad medium filum aquoe." But such has never been the law in Pennsylvania. In the case of Carson v. Blazer, (2 Binney, 473,) this peculiarity of the traditionary law of Pennsylvania, differing from the common law of England, was first recognised by judicial authority. The late Chief Justice Tilghman, speaking of the proprietary, syas: "No doubt he retained the entire right to the river, and of everything in the river, in order that he might make such use of it as would be most conducive to the public benefit." And again, in Shrunk v. The Schuylkil Nav. Co., (14 S. and R., 79,) he remarks: "These islands have never been open to applicants under the common terms of office, either under the proprietary or State Government," and refers with approbation to the case of Hunter v. Howard, (10 S. and R., 243,) which decides that, "from the first settlement of the country, islands in the great rivers of Pennsylvania, under the provisional Government, were never subjects of appropriation, either by office-right or settlement." This doctrine has continued to be recognised as settled law in Pennsylvania for half a century. It is treated as such in the learned work of Judge Sergeant on the Land Laws of Pennsylvania, p. 193. Nor can any case be found in the reports or traditions of the bar, which varies or contradicts this uniform course of decision. It is through these sources alone that this court must seek for a solution of the question; and finding the law so established by the tribunals of the state, we are bound to acquiesce in and follow their decisions.
      The decree of the Circuit Court is therefore affirmed, with costs.

Go to the Dauphin Co. PA Court Records Part 2
      CHAMBERS against CARSON; Supreme Court of Pennsylvania, Eastern District, Philadelphia; 2 Whart. 9; December 12, 1836, Decided.
      CHAMBERS against CARSON; Supreme Court of Pennsylvania, Eastern District, Philadelphia; 2 Whart. 365; February 18, 1837, Decided.
      CARSON'S Sale; Supreme Court of Pennsylvania, Middle District, Harrisburg; 6 Watts 140; May, 1837, Decided.

Go to the Dauphin Co. PA Court Records Part 3
      GALBRAITH against ELDER; Supreme Court of Pennsylvania, Middle District, Harrisburg; 8 Watts 81; May, 1839, Decided.

Go to the Dauphin Co. PA Court Records Part 4
      The Heirs of BARTRAM GALBRAITH against DETRICH; Supreme Court of Pennsylvania, Middle District, Harrisburg; 8 Watts 104; May, 1839, Decided.
      MOYER's Appeal; Supreme Court of Pennsylvania; 16 Pa. 405; June, 1851, Decided.

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