Arthurs v. King

95 Pa. 167 | Pa. | 1882

Mr. Justice Sterrett

delivered the opinion of the court,

The land in controversy was claimed by the plaintiff under three separate and distinct titles. One of these was derived from Henry Zimmerman through the deed of his executor, made in June 1860 pursuant to a power of sale contained in his last will and testament ; the other two were tax titles, founded on treasurer’s sales made respectively in 1858 and 1862.

It was conceded that in 1850 the title to the land was vested in Mr. Zimmerman. This admission, coupled with the power of sale and conveyance by the executor in pursuance thereof, made a clear prima facie case for the plaintiff, but the defendants claimed and introduced testimony to prove that Zimmerman, long before his decease, sold the land to Dr. Boyer, from whom they derived title, and that plaintiff purchased from the executor with full notice of the previous sale. The principles of law involved in this contention were correctly applied by the court, and the questions of fact connected therewith were fairly submitted to the jury. The learned judge, after specially directing attention of the jury to the testimony, instructed them that if the facts were as alleged by defendants no title remained in Zimmerman at the time of his death which his executor could transfer to the plaintiff; that it was therefore an important fact for them to determine whether or not the deed was delivered in the lifetime of Zimmerman; that if he simply made and retained the deed without delivering it to Boyer, or any one for him, it would not have the effect of divesting his title, and either he or his executor might sell the land and make a good title to the purchaser. It appears by their verdict that the finding of the jury on the question thus submitted to them must have been adverse to the plaintiff. It is unnecessary to notice in detail the several assignments of error on this branch of the subject. They neither involve any essential principle that was not sufficiently considered when the case was here on former writs of error, nor do they disclose any just ground of complaint on the part of the plaintiff.

The main ground of defence, common to both tax titles, was that the Christian Lower tract, of which the land in dispute is a part, was seated and therefore not subject to assessment and sale as unseated land; and, in support of this position, the defendants made an unsuccessful effort to show that it was seated by reason of the Reisinger improvement, made on or near the southeast corner of the tract sometime prior to the year 1849. They also insisted that it was seated in consequence of its connection with the Overdorf tract, on which there were improvenjents. They claimed that in 1852 or thereabouts, both tracts were purchased by the same party with the view of holding aud using them together as one tract, for the purpose of carrying on the lumber business; that they were so held, used and assessed, and thus the whole became one tract of seated land; and consequently the subsequent assessment and sale of the Christian Lower tract as unseated was unauthorized and void. The learned judge instructed the jury, in substance, that this was so if they found the facts to be as claimed by the defendants. In this we think there was error. It was clearly shown that the tracts were not adjoining, and there was no competent or sufficient testimony to justify the jury in finding otherwise. When the case was here on former writ of error, it appeared to be a question of fact under the testimony then before the court, whether the Lower and Overdorf tracts' did not adjoin at least for a short distance southerly from the hickory, which was admitted to be the common corner of both; but, from the connected drafts of the original surveys of the two tracts and the Casper Stiver tract, together with the testimony of witnesses introduced on the last trial, it clearly and conclusively appears that the three tracts are so located as to corner together at the hickory; that a portion of the Casper Stiver tract, in the form of an acute angle, terminating at the common hickory corner, separates the other two tracts so that they have no boundary-line in common, and therefore cannot be considered adjoining tracts. They have simply a corner or point without any line common to both. The learned judge, in his charge, says: “ It would appear that the old surveys were made in March 1785. The Christian Lower and Casper Stiver cornered at a common point, a hickory. These two tracts were located the same year; the Lower some days earlier than the Stiver. The Edward Overdorf was not located until 1841. It seems to have cornered upon the same hickory, so that, according to the original survey, the Lower and Overdorf tracts only united at a common corner at the point where the hickory stood.” The facts thus stated fully accord with the uncontradicted testimony in the case, and clearly entitled the plaintiff to at least an unqualified affirmance of his eighth, thirteenth and sixteenth points. There was no conflicting testimony as to the original location and relative position of lines of the three original surveys, as shown on the corrected drafts, nor was there any competent testimony to show that these lines were ever changed, or that the owners of either the Lower or Overdorf tracts ever acquired title by purchase, possession or in any other legitimate way, to the point of the Stiver tract which separates the two first-named tracts. The third, sixth, eleventh, thirteenth and twenty-first assignments of error are sustained.

In view of the testimony, there was also error in that part of the charge embraced in the second assignment; and in the answer to the defendant’s fourth point, which is the subject of complaint in the twentieth specification of error. The deed from Zimmerman’s executor to the plaintiff is dated and acknowledged June 11th 1860, and the evidence is, that on the same day he procured from Richard Shaw an assignment of his inchoate tax title. There is nothing in the testimony to indicate that this was intended as a redemption of the land from the tax sale, nor does it follow as a matter of law that it was a redemption and not an acquisition of the tax title. There is no valid reason why either the owner of land sold for taxes, or a stranger to the title, may not, within the time allowed for redemption, take from the purchaser at treasurer’s sale a conveyance of his inceptive title, and hold the same until it ripens into a complete tax title. Where, as in this case, the consideration paid is more than would be required to redeem the land, and a regular assignment of the tax title is executed, it would be unreasonable to infer that the transaction is a redemption and not a purchase.

There appears to be nothing in any of the assignments of error that calls for further notice.

Judgment reversed, and a venire facias de novo awarded.