133 Pa. 628 | Pennsylvania Court of Common Pleas, Lackawanna County | 1890
Opinion,
The premises in dispute are admitted to be a part of a tract of land surveyed May 7, 1793, upon a warrant to Benjamin Heacock dated October 16, 1792, and situate on a branch of Spring brook, in the county of Luzerne, now Lackawanna, bounded on the north by lands of Thomas Starr, on the east by Isaac Bennett, on the south by Thomas Bennett, and on the west by lands of Daniel Heacock, containing 400 acres and the allowance. A patent issued September 6, 1796, to Joseph Thomas; and it is admitted that in the year 1806 the title to the whole tract became vested in Dr. David Hosack, who, sometime prior to April 27, 1863, died seised thereof.
The plaintiffs’ claim now is to the eastern boundary of the original tract, and their claim embraces about 120 acres. It is contended that, as the northern, western and southern boundaries are given, in the absence of any calls for marks on the ground or for adjoin’ers, and of courses and distances, in the deed, the eastern boundary should be controlled by that portion of the description which designates the number of acres contained in the piece. This, as a general proposition, might perhaps be true; but the description in this deed, although containing some ambiguity, may be fairly construed to extend the boundary to the whole of the lands embraced in the writ. The description by quantity is in its nature the least certain of all the ordinary methods of description employed in deeds; it is introduced, in general, as matter of description, but it is at best the result of calculation, and, where the land is described by adjoiners, merely, it is often a mere estimate; that it was only an estimate in this instance is shown by the fact, that the land embraced in the deed is described as “about” 70 acres, “ more or less.” It is further described as a part of the Benjamin Heacock warrant, “ the northern part thereof,” and adjoining Thomas Starr. This description, as we have said, may readily be construed to cover the lands in dispute, but it is equivocal, and to some extent ambiguous; and, in view of this, it was competent to introduce parol evidence to give locality and identity to the subject matter of the conveyance.
Evidence to this effect was rightly received; among other things, it was shown that the Benjamin Heacock survey had prior to this time been divided into four distinct lots, to each
Bearing upon this question, the plaintiffs offered, and the court received in evidence, under exception, what purported to be an agreement under seal, dated October 27, 1863, for the sale of these lands by the Hosack heirs to Everhart and Dolph; and by the terms of that original agreement they sought to explain the deed, and to identify the extent of land which it was intended to embrace. If the execution of this contract had been shown, there can be no doubt that it was properly receivable in evidence for that purpose ; although merged in the deed, the original agreement, in execution of which the deed was made, was undoubtedly competent evidence to explain the ambiguity, and to ascertain the true boundary according to the intent of the parties: Koch v. Dunkel, 90 Pa. 264. But the alleged agreement was not signed by the Hosack heirs, nor by any of them ; it was signed by Everhart and Dolph only; and it was offered in evidence, not in behalf of the Hosack heirs, to charge Everhart and Dolph, bpt in the behalf of Everhart and Dolph themselves. The case of Flannery v. Dechert, 13 Pa. 505, is therefore not in point.
Besides, the statute of frauds requires that leases or sales of lands shall be in writing, and signed “ by the parties making or creating the same,” “ or their agents thereunto authorized by writing; ” and in Tripp v. Bishop, 56 Pa. 424, and in a number of cases both before and since, it was decided that such a writing must be signed by the grantor or his lawfully authorized agent. “ It is, then, only the lessor or grantor,” says Mr. Justice Strong, in the case cited, “ who is required to sign the agreement. His contract must be in writing and signed
The agreement, it is said, was found in the possession of one E. T. Emmett, a real-estate agent in the city of New York; one of the witnesses testifies that Emmett was the real-estate agent of the Hosack heirs, and that he was holding it, with other papers, for them. Wliat was the nature or extent of his authority, or whether he had any power to dispose of this land, does not appear. But, as the agreement was not signed by the grantors, or by any one for them, it was of little consequence where it was found, as the Hosack heirs were not bound by it, and it does not appear that the deed was made in pursuance of it; indeed, it would rather appear that the deed was not made in pursuance of it, as the agreement was not signed, and the description in the agreement and in the deed are different. We are of opinion, therefore, that the court erred in receiving the alleged agreement in evidence.
The defendants’ title is founded upon a sale of a part of the Benjamin Heacock tract for taxes for the years 1856 and 1857 on the unseated list. The tract originally contained 400 acres and the allowance ; but for the years 1856 and 1857 Ilosaek was taxed with 276 acres only, the residue having passed into other hands. Some time prior to 1844, whilst Hosack was the owner of the tract, as we have said, it was subdivided into four equal parts or lots, numbered 13, 14, 19, and 20, as shown by a draft, a copy of which is found in the appellees’ paper hook. In 1844, one half of 19 and one half of 20, containing 100 acres and allowance, were conveyed to Abraham Turner. In April, 1854, 40 acres of the south half of 13 were deeded to Thomas Thomas ; and on August 16,1856, that part of 20 not sold to Abraham Turner was contracted to David Griffiths. Prior to the year 1856, therefore, Hosack had sold 100 acres to Turner and 40 acres to Thomas, and on August 6 of that year sold 50 acres to Griffiths. This left 210 acres and tbe allowance belonging to Hosack. In 1858, prior to the treasurer’s sale, Hosack paid lito taxes on 210 acres, and allowed 66 acres of the 276 embraced m the assessment to be sold.
We bave not discussed the evidence; as the cause goes back for a re-trial, it is better tliat we should not discuss it. Tbe assignments of error bave not been considered in their order; but we have indicated in a somewhat general way tlie principles upon which, in our opinion, the case should be tried.
Tbe judgment is reversed, and a venire facias de novo awarded.