78 Pa. 271 | Pa. | 1875
delivered the opinion of the court, May 10th 1875.
In disposing of the questions relating to the sale by the commissioners to Henry'Deringer on the 8th of July 1826, too much significance was attributed to lapse of time. If possession of the land had been taken by Deringer, the long period intervening between the date of the sale and the date of the trial, would perhaps have áfforded, with the other evidence in the cause, ground for assuming that the formal provisions of the Act of 1824 had been complied with, as á presumption of law. It certainly would have warranted a charge that such a compliance ought to be inferred by the jury, as a presumption of fact. But “ mere lapse of' time,” it was said by Lowrie, C. J., in Alexander v. Bush, 10 Wright 62, “ proves nothing in favor of a title, for the older it is,, without any claim being made under it, the weaker it is, and the-weaker are all presumptions in its favor.” It is true that Read v. Goodyear, 17 S. & R. 350, decided that, where land is sold for-taxes and the warrantee makes no claim for twenty-one years, and pays no taxes during that time, it may be left to a jury to presume-ouster or abandonment by him; and that length of time strengthens a title founded on a sale for taxes. In Sorber v. Willing, 10
With the remark that the evidence offered by the defendants to prove that all adjournments of treasurers’ sales have been noted on the sales-book since the year 1838, was irrelevant to any apparent issue in the cause, what has been said disposes of the first six specifications of error.
The general offer by the plaintiffs, to which the seventh assignment of error relates, was unobjectionable. Under it there was, perhaps, no necessity for showing the date of the purchase of the four tracts other than the one in controversy belonging to Deringer, and the deeds for them, but this could not have led to any confusion or embarrassment on the trial. The five tracts were treated as a single body of land, and each tax-receipt related to them all. The evidence affecting the Samuel Rope tract involved a reference to the others, and it was admissible, as evidence is always admissible of extraneous facts with which the subject-matter of a suit is inseparably connected.
The eighth, ninth, twelfth and thirteenth specifications are founded on the rulings of the court in regard to the sale of the land in controversy by the treasurer to the commissioners in 1828 for the taxes of 1827. The deed recited the sale to have been made on the 25th of November 1828. If it was valid, it divested the title Mr. Deringer had acquired by his purchase in 1826, and an outstanding title, as to him at least, was subsisting in the county of Luzerne when the cause was tried. The books showing the assessment and the deed were given in evidence by the defendants. In their rebutting case, the plaintiffs showed what is called in the record a “ commissioners’ transcript-book,” containing a
The admission of the evidence to which the tenth, eleventh, and fourteenth assignments of error apply, was warranted by the authority of McReynolds v. Longenberger, 7 P. F. Smith 13. Other questions aside, the sale in 1834 to Charles S. Coxe vested the title to this land in him, if the taxes for the years 1832 and 1833 were not paid. The plaintiffs were permitted to prove the existence of receipts for taxes from 1826 to 1840 by witnesses who had seen them, the loss of the receipts themselves being alleged. While such testimony is admissible, it is exceptional in its character, and is capable of producing unjust results. It should be submitted to a jury under carefully guarded and measured instructions as to the precise point in dispute. That point here was the payment, before the sale of 1834, of the taxes for the two preceding years. As the cause must go back on other grounds, it is not necessary to express an opinion as to the sufficiency of the preliminary proof that was made of the search for, and loss of, the papers. But Dr. Clark, one of the executoi’s of Henry Deringer, had possession of the key of the closet containing the receipts for more than a year, and not only had access to them, but had charge of, and was responsible for, them. The necessity for some examination of his papers would seem clear. No evidence in the record traced these papers to the hands of the other executor, Theophilus T. Deringer. Still, applications for such documents to executors or their representatives is, in all cases, a proper and safe precaution.
Everything involving substantial error that was embraced in the part of the charge to which the fifteenth assignment applies, has been adequately discussed.
Judgment reversed, and a venire facias de novo awarded.