229 Pa. 386 | Pa. | 1911
Opinion by
This was an action of ejectment brought by L. S. Clough against James C. Welsh, to recover possession of a tract of some 1,100 acres of land in Howe township, Forest county, being Warrant No. 5282. Under binding instructions of the trial judge, the jury found a verdict in favor of the plaintiff, and from the judgment entered thereon, the defendant has appealed. We do not think it necessary to take up in detail each of the thirty-two assignments of error which have been filed. In the abstract of title filed by plaintiff, and in the evidence offered by him on the trial, he showed title out of the commonwealth to Alexander Thompson, a number of tax sales being in the line of title. In the abstract of title filed by defendant, he claims title first by adverse possession, and secondly by grant in 1904, from the heirs
In the second place, counsel for appellant contend
Counsel for appellee also point out the fact that the writ of fieri facias recites the recovery of the judgment and the amount of it, which would also be impossible if the writ had been issued two months before judgment was entered. It is apparent that the entry of the date September 18, is either a clerical error or else, as is also suggested by counsel for appellee, the prothonotary in issuing the writ, followed the common-law practice of testing it as of the first day of the term. The same practice seems to have been followed in the case of the testatum venditioni exponas; for there the prsecipe was filed July 26, 1858, while the writ issued in pursuance of that prsecipe seems to bear date May 14, 1858, more than two months earlier. But in any event, we are satisfied that the trial judge was right in holding that, whatever irregularity there may have been in the issuance of the testatum venditioni exponas was cured by the acknowledgment of the sheriff’s deed in open court. In Cock v. Thornton, 108 Pa. 637, Mr. Justice Clark said (p. 640): “In numerous cases it has been held by this court that the acknowledgment of a deed is a judicial act, and concludes all mere irregularities, however gross, in the process and sale. After acknowledgment, the validity of the title acquired by the purchaser cannot be questioned in any collateral action involving the title, except for the absence of authority or the presence of fraud in the sale. This question was elaborately considered in Shields v. Miltenberger, 14 Pa. 76, where the authorities are collected and reviewed by Mr. Justice Bell, and that case is followed by many others. ... In this case there was
In the present case it is true that the sheriff’s return to the fieri facias shows a levy on the real estate of the defendant, Alexander Thompson, and does not show inquisition or condemnation. But this would be an irregularity only, which under the authority of. Spragg v. Shriver, 25 Pa. 282, could only be objected to within a reasonable time; that is, before the confirmation of the sale, and the acknowledgment of the sheriff’s deed.
Under the pleadings and the evidence the plaintiff might have relied upon the title derived under the judgment against Thompson, and the sheriff’s sale to James E. Brown, and the subsequent conveyances. But in addition he offered in evidence two treasurer’s deeds for the tract of land in controversy; one under a tax sale in 1888, for arrearages of taxes in 1886 and 1887; and the other deed under a sale made in 1890, for the taxes of 1888. In the thirty-second assignment of error appellant alleges error in the portion of the charge of the court referring to these tax sales, which was as follows: “The defendant seeks to avoid that title by showing that these lands were seated lands at the time of the assessment of the taxes. We say to you that there is evidence bearing on that question and evidence from which the jury might find that the land was in fact seated land, but there is no evidence that there was sufficient property on the prem
We think the trial judge was right in his view of the evidence in this respect. Even if the land was in fact seated land, the burden was upon the defendant to show affirmatively that at the time the assessment was made there was sufficient personal property on the premises liable to seizure, to pay all the taxes assessed thereon. We do not find evidence to show this fact. The question is not important, as the plaintiff established his title irrespective of these tax sales, and for that reason was entitled to binding instructions in his favor. We see no substantial merit in any of the assignments of error. They are all dismissed, and the judgment is affirmed.