[Chew v. Morton.] nants, would immediately, on the expiration of five years from the said Morton's first residence on the said tract, by sufficient deed grant, convey, and assure unto the said John Morton, his heirs and assigns, all the aforesaid lot of 200 acres in fee simple, free and clear from all incumbrances whatsoever; also a patent from the commonwealth to Benjamin Chew and John Morton, June the 20th, 1817, granting and confirming to each their several proportions of the whole tract, according to the agreement aforesaid made between them and the division of the land therein mentioned. The defendant further gave evidence of a survey made for Morton, by Joseph Hemphill, on the same day of the date of the agreement before stated between Chew and Morton, dividing off from the residue of the tract, what was then considered 200 acres, but has since been discovered to contain about 219 acres, in the manner described in the agreement, which appeared to be the only division of 200 acres that had then been made, by running lines as mentioned in the agreement; that Morton continued to reside with his family upon the land until he fulfilled his agreement, and afterwards until his death, which took place about 1821, occupying, clearing and improving the 200 acres every year to the full extent of the lines run and marked by Hemphill, without any objection being made by Mr Chew. That after the death of Morton, upon a proceeding had in the year 1828, in the orphans' court of Beaver county, at the instance of Robert A. Morton, a son of the said John Morton, the 200 acres, as it had been occupied, were duly appraised, and decreed by the said orphans' court to the said Robert A. Morton, who elected to take the same at the appraisement; and having done so, occupied it as his father had done, without objection, until he conveyed it to the defendant, who thereafter continued the occupation of it in the same manner, without objection, until shortly before the commencement of this action. It also appeared that the whole tract or survey contained 500 acres instead of 400; and of the 500 acres it was conceded by the plaintiff that the defendant was entitled to 200 acres. But the contest between the parties was for the excess beyond the 200 acres in that portion of the tract, which had been separated from the residue by the survey and lines made and marked by Hemphill. The excess was between 19 and 20 acres. It appeared also, that the board of property, when they granted the patent of 1832, undertook to annul and vacate the patent of 1817, upon an ex parte hearing of the plaintiff, which the court below (Bredin, president) decided they could not do. The court also charged the jury, that as the agreement between Chew and Morton seemed to recognise the partition of the 200 acres, made by the lines run and marked by Hemphill, though done at the request of Morton, and there had been an acquiescence in it by both parties from that time until shortly before the commencement of this action, it must be considered conclusive and binding upon them; so that neither could then alter or change [Chew v. Morton.] it without the consent of the other, although it might contain more or less than 200 acres. The counsel for the plaintiff excepted to the opinion of the court on these points, and now allege that the court erred therein. Shaler, for the plaintiff in error. Agnew, for the defendant in error, cited on the first point, Purd. Dig. (1830) 121, 122; 7 Serg. & Rawle, 156; and on the second point, 4 Watts 263; 2 Watts 396; 7 Ibid. 94; 3 Johns. 269; Adams on Ejectment 54.77; 2 Penns. Rep. 539; 2 Watts 318; Blanchard on the Stat. of Limitations, 1 Law Libr. 32, 33. The opinion of the court was delivered by KENNEDY, J.-On the first point the court below were clearly right in deciding that the board of property had no power or authority to revoke or vacate a patent after it had been executed and delivered to the patentees. Before a patent, which is demanded, has been granted, objections to its being issued may be entertained and decided on by the board; and in doing so, they have the right undoubtedly, and are bound, either to grant or withhold it as they, in their best judgment, shall think it expedient. Their decision, however, can scarcely be said to be binding, much less conclusive upon either of the parties interested therein; for if the board should refuse to grant the patent, through error of judgment, when it ought to be granted, they may be compelled to do so by a writ of mandamus from this court; and if on the other hand, they should grant it to one not entitled to it, it will be treated by this court or any other court, where the patentee shall claim to have acquired a right by means of it, either as a nullity or as enuring to the benefit of the party to whom of right it ought to have been granted. In Foster v. Shaw, 7 Serg. & Rawle 161, this court held that the board of property had no legitimate power to vacate a patent, on the ground that it had been obtained by a forged conveyance. And the late Mr Justice Duncan, in delivering the opinion of the court, says "this authority is confined to cases of imperfect titles, warrants, locations, rights of pre-emption, promises. 2 Smith's Laws 13; Act of the 5th of April 1782. But this body possesses no judicial power. It is for them to say in the first instance, to whom the patent shall issue. But this does not decide the right of the claimant. It is open to them for trial by jury, as if no decision of the board had been made. But they can issue no scire facias to repeal a patent, to call in and cancel one patent and issue another. The legislature have conferred no such power on them." On the second point, we also think that the court were right. The agreement between Chew and Morton speaks of the 200 acres which Morton was to have, as having been divided off by lines [Chew v. Morton.] run at right angles, so as to include his improvements, adjoining Braden's district line; and it having been abundantly proved on the trial, without the least contradiction, that the only line of division of the kind made at that time, was that made by Hemphill, it was right that the jury should consider it as the line of division mentioned in the agreement; and it was not error in law certainly, on the part of the court below, in charging the jury, to speak of or treat it as such. It seemed to be the only, and at the same time inevitable, conclusion arising from the facts and circumstances most incontestably proved. This being the case, it could not be error on the part of the court to instruct the jury that such line, although made by Hemphill at the instance of Morton, yet having been recognised by both parties in their agreement, and acquiesced in afterwards, without objection for more than the space of thirty years, was to be regarded as binding and conclusive in the absence of proof showing fraud. The peace and welfare of society depend much upon a strict adherence to land-marks and boundaries, which have been long established and acquiesced in, though originally founded in mistake. It is not only a rule of sound policy, but becomes one of the greatest justice after a considerable lapse of time, when the party has made valuable improvements which would be impaired or taken away by a correction of the mistake; or when the property has gone into the hands of innocent purchasers, as in this case, for a valuable consideration. It is a rule which has ever been observed by the commonwealth in regard to the boundaries of lands granted by her, in which mistakes are made every day by surveyors against her interest, by including more lands within the boundaries of the survey than the quantity reported by the return thereof. Even in this case, it appears that the surveyor, on behalf of the commonwealth, in locating the warrant, under which the parties claim, made a mistake against the commonwealth of 100 acres, for which she has never been paid; and under the rule which seems to have been adopted by the commonwealth, not to correct such mistakes after the grant has been carried into effect, and the title to the land been perfected, she never can demand or receive payment for it; so that Mr Chew, upon the whole, instead of being a loser by the mistakes which have been committed in surveying the land originally and in dividing it afterwards, is greatly the gainer by being the owner of nearly 80 acres more land than he would have been if no mistake had taken place. In truth it may be said that he has never paid for the land claimed in this action, and that he is not now liable to pay any thing for it. If the commonwealth could in any way obtain payment for it now it would be by proceeding against the land itself, which would tend to prejudice the defendant instead of the plaintiff. Judgment affirmed. Turner against Fowler. A testator devised to his daughter N. 4 acres, part of a tract of land, and the remainder of the said tract he devised to his children S. and W., and directed that neither S., W. nor N. should sell their title to the land to any one but him or her who was in possession of the other part of the land; and at the decease of his said three children, (if W. should have no heirs,) then to the male heirs of his other sons: Held, that S. W. and N. took life estates, with cross-remainders for life to each; and that there was an executory devise over on the death of the three. If a devise be made to three, with a condition that neither shall sell to a stranger, but only to each other, and one turn the other out of possession, and claim title otherwise than under the will, the party ousted may sell, and his alienee may maintain ejectment to recover his interest. ERROR to the common pleas of Butler county. This was an ejectment brought to recover one-half of 200 acres of land in Parker township. The plaintiff and defendant claim under a devise from William Turner, dated September 10, 1817, as follows, viz: "I give and devise to Nancy Turner 4 acres of land, part of the tract that I now reside on, to include a spring, at a corner or part most commodious, so as to do the least possible injury to the remainder of said land, to be laid off by my executors; also the remainder of said tract, equally between Sarah and William Turner, together with the cattle, sheep, hogs, and household furniture." After some specific devises to the children of the testator, the will contains the following clause: "and further my will is, that neither Sarah, William, and Nancy, is not to sell their right in or to said land to any but he or she who is in possession of the remainder; and at the decease of the last of said three, (if William has no heirs,) said land is to descend to the male heirs of my other sons." The plaintiff gave in evidence certain articles of agreement between himself and Sarah Turner, by which, for the consideration therein expressed, she granted him her interest in the land devised. The defendant was the widow of William Turner. On the part of the plaintiff, one of the witnesses proved that the plaintiff made him a lease, and that William Turner refused to let him into possession unless he took a lease from him. Another witness stated, that in a conversation between him and William, the latter said that a division had been made of the house and barn; that he had nailed up the door by which Sarah Turner had access to her wood and water. Another witness stated, that William told him that he had requested Sarah's assistance in purchasing the land from General Campbell, to which she disagreed. That he told her the will would not hold it, and she said she would hold under the [Turner v. Fowler.] will; and that owing to the difficulty between them, she had parted with the property: which he told witness he did not regard. That he had purchased the land from General Campbell in order to settle the disputes and make his title clear. That the house smoked, and that he had opened the door and taken possession of it. Another witness proved a conversation between William and Sarah, in which he asked her assistance in building a grist mill and in buying out Campbell's claim, and that on her refusal he bought it; that she was displeased; thought he was going to buy it over her head, and cut her out; said she would put it into the hands of Fowler, and let him work Billy; that William said that the will would not let Fowler purchase from Sarah, and that he claimed under Campbell's title. The court below charged the jury as follows: "The defendant contends, that by the will of Sarah, William and Nancy took but life estates, and that the restriction was consistent with the estate. That no acts or conduct of William Turner would give Sarah Turner the power to alienate. If Sarah, by the conduct or acts of William Turner, had the power to alienate, the right of the plaintiff to recover in this ejectment would be the same, whether she took by the devise in the will an estate for life, or an estate in fee simple. If Sarah took but a life estate by the devise in the will, the bounty and intention of her father, the testator, could not be defeated by the acts or conduct of William Turner. If he prevented her from enjoying it, claimed the whole land in his own right, independently of the devise in the will, she might, in the opinion of the court, transfer and sell her right to another. Would the law require her to offer to sell to William, who claimed by a purchase made of General Campbell, the whole land in his own right? We are of opinion that it would not; and that the person to whom she sold, where there is no title shown in the defendant but the title derived by the devise, would be entitled to recover. "As this cause will go to the supreme court, and it is important for the parties to prevent future litigation that it be decided, by the court in the last resort, what estate was taken by Sarah, Nancy, and William Turner by the devise in the will; the court therefore instruct you, that Sarah took by the will an estate in fee simple; that the word heirs in the will is a word of limitation; that the restriction is inconsistent with the estate granted, and that Sarah had the right to sell." The following errors were assigned: 1. The court erred in stating to the jury that the acts and conduct of William Turner, toward Sarah his sister, in relation to the possession of the property, would be sufficient in law to authorize her to alienate her interest in the land. 2. The court erred in charging the jury that Sarah Turner took under the will of her father an estate in fee simple. Gilmore, for plaintiff in error. 1. The condition annexed to a par |