9 Watts 156 | Pa. | 1839
The opinion of the court was delivered by
The first error assigned, is an exception to the opinion of the court below, overruling the objection of the plaintiff in error, to the admission in evidence of the record, upon the offer of the defendant, of a writ of foreign attachment, sued out of the court below at the suit of Jacob Gehr against Thomas Burns, to November term 1S05, and the proceedings had thereon, showing that the land in question, in this suit, had been attached as the property of Thomas Burns, and regularly sold in 1812, to Jacob Gehr. The principal objection to this record’s being read in evidence was, that the land attached, appeared to have been sold without any scire facias having been previously sued out against the person in possession of the land, at the time, as garnishee.
We also think that the second error, which is an exception to the admission of the deposition of J. B. Bartholomew, Esq., in evidence, has not been supported. We can perceive no sufficient reason for rejecting it.
The third error, is an exception to the answers of the court to the first and third points submitted by the counsel for the plaintiff. On the trial, the defendant showed that the land in controversy had been taxed and .sold as unseated land. To meet this, the plaintiff’s counsel, in his first point, requested the court to charge the jury, that from the evidence, the land appeared to be seated, and not unseated at the time of the assessment of the taxes, for .which it was sdWLj&nd that the sale was, therefore, void. And in their third point, requested the court to instruct the jury that the sale was void also, because it appeared that there was a surplus of the money arising from the sale of the land, after paying all the taxes and costs,, and that no bond was given by the purchaser, securing the payment of it to the owner of the land, as required by the act of assembly. The court, as it appears to us, were right in refusing to instruct the jury, as requested by the counsel for the plaintiff on these points. On the first point, it appears from all the evidence on both sides, that the settlement, improvement, and cultivation of the land, under which the plaintiff claims it, were all given up and abandoned entirely, in May, 1806, and the land and all lay desolate from that time until 1819, when William Robbins, under whom the defendant claims, took possession thereof. The taxes for .which the land was assessed as unseated, and afterwards sold in 1S18, were made for the years 1814, 1315, and 1816. Before the assessment of these taxes, the house on the land, through lapse of time and other causes, had become untenantable, the fences destroyed by fire, and the cleár land all grown up with briars and bushes, in such way, that in 1819, it was so bad, one of the witnesses testified, that he would rather have undertaken to clear the same quantity of the land on it, that never had been
The fourth error is an exception to the answers of the plaintiff’s second and fourth points. The plaintiff has no just cause to complain of these answers; they were as favorable to him as he, from the evidence, had any right to claim. The court appears rather to have erred against the defendant in their answers on these points of the plaintiff, for they left it, as a question of fact to the jury, to be decided by them, whether William Bums was not bound to have paid the taxes for which the land was sold, without a single tittle of evidence to justify it. It was claimed, to be sure, by the plaintiff, that, the entry, in the handwriting of the county treasurer, in his book, “William Burns, to pay,” was evidence of it; but it was a great mistake to consider this evidence against William Burns, for any purpose whatever. It can, at most, only be regarded as a private memorandum made by the treasurer, and not as a registry of any official act, and, therefore, without evidence being given, going to show that William Burns authorised him to make it, it proves nothing. ■
The fifth error is an exception to the answer given by the court to the eighth point submitted by the counsel on behalf of the defendant. By this point, the court were asked to charge the jury, that John Burns, quitting the possession of the land in 1816 and leaving it entirely vacant, permitting it to grow up like a wilderness again, without his or Gibson’s, who claims under him, eveifi paying taxes for it, excepting a road tax paid by the latter in 1809, until 1S19, when the defendant, or the person under whom he claims, entered and took possession of it, and even then not asserting a claim or right to it, or against the latter’s taking the possession of it; nor doing any act showing that he intended to claim it, after
Judgment affirmed.