233 Pa. 121 | Pa. | 1911
Opinion by
The question upon which this controversy depends is whether the deed of the administratrix of Anthony Sharp to Mathias Baier was admissible in evidence. No paper title was shown in Anthony Sharp who at the time of his death in 1847 was a resident of Schuylkill county, but his widow as surviving administratrix presented her petition first to the orphans’ court of that county and subsequently to the orphans’ court of Lycoming county asking leave to sell the real estate of decedent for payment of his debts. This petition recited the necessary jurisdictional facts and described the John Sailor warrant patented to Kantner in 1795 as part of the real estate of which Anthony Sharp died seized. The sale was ordered to be made and pursuant thereto the property was subsequently sold at public outcry to Mathias Baier for $346.46. The sale was confirmed by the court and the deed in question here was executed and delivered in compliance with the terms thereof in 1849. This occurred more than sixty years ago and the appellee holds an unbroken chain of title from that time to the present. The offer of this deed in evidence was objected to upon the ground that no title was shown in Anthony Sharp, and, further, that there was no offer to prove the precedent conveyances, if any, connecting the title of Kantner, tiie patentee, with that of Sharp, the decedent. The land in question was warranted in the name of John Sailor in 1793 and patented to John Kantner in 1795. The plaintiff at the trial in the court below first offered in evidence the patent to Kantner and then offered the deed from the administratrix of Anthony Sharp to Baier which is the one to which objection is made. There is nothing to
Again, we have concluded after a careful consideration of the whole record and an exhaustive examination of the authorities that the doctrine of a presumptive grant applies to this case. The principle has been recognized and sustained by our courts since the early days of the commonwealth. It has been approved in a long line of cases and the only question for decision here is whether it should be applied under the facts of the present case. An examination of the following cases will show not only the foundation of the rule but the extent and limitation of its application: Galloway v. Ogle, 2 Binn. 468; Taylor v. Dougherty, 1 W. & S. 324; Kingston v. Lesley, 10 S. & R. 383; Hastings v. Wagner, 7 W. & S. 215; Garrett v. Jackson, 20 Pa. 331; Fox v. Thompson, 31 Pa. 172; Carter v. Tinicum Fishing Co., 77 Pa. 310; Brown v. Day, 78 Pa. 129; Wallace v. Presbyterian Church, 111 Pa. 164; Townsend v. Boyd, 217 Pa. 386. The contention of appellants is that the presumption of a grant can only be invoked' against an intruder without color of title. While it is true that in many of the cases in which the presumption of a grant was held to apply the defendants were intruders without color of title, nothing said or decided by this court warrants the conclusion that the rule is thus limited in its application. No case has been called to our attention nor have we discovered any after exhaustive examination that so holds. The exact question does not seem to have been decided, but many judicial expressions found in the decisions in which the rule was discussed clearly indicate that no such limitation was intended. As far back as Kingston v. Lesley, 10 S. & R. 383, Chief Justice Tighlman said- “The rational ground for presumption is, when the conduct of the party out of possession cannot be ac
But it is contended that the recital in the deed from the administratrix of Anthony Sharp to Mathias Baier was too general in its terms to be evidence of a conveyance from John Kantner, and that the learned trial judge committed error in admitting it. We have already said that the deed was properly admitted in evidence, but did not discuss the effect of the recital. The general rule is that recitals in a deed are evidence against the grantor and all persons claiming under him, but are not evidence against a stranger, or other person claiming under a title derived from the grantor before the deed containing the recital. This rule which applies to recent conveyances has a well-established exception in the case of an ancient deed. Recitals in ancient deeds, where possession accompanies the deed, are prima facie evidence of the facts recited even against third persons. James v. Letzler, 8 W. & S. 192. The rule as applied to ancient deeds generally is not disputed, but it is contended that the recital in the deed in question here is not specific enough to be admitted as evi
The fourth assignment raises a nice question and one not free from difficulty. The instruction complained of was: “Now we say to you these various conveyances have vested in this plaintiff a sufficient paper title upon which this action of ejectment may be sustained, and that he would be entitled to recover in this action, were it not for the defense set up here showing, or tending to show, that
The fifth assignment relates to the affirmation of the fourth point submitted by counsel for plaintiff at the trial. By affirming this point the jury were instructed that if they found from the evidence the land in dispute was taxed in the name of the Dougherties on the seated list for 1891, and was the same land as that taxed on the unseated list
There are some technical errors in this record, but as we view it appellants had a fair trial on the merits of the case and the matters complained of in the assignments of error do not affect the real question in controversy which is the validity of the tax title. On this question the jury found against appellants and this should be an end of the controversy.
Judgment affirmed.