58 Pa. 266 | Pa. | 1868
The opinion of the court was delivered, July 2d 1868, by
The merits of this case will be better reached by discussing the questions arising in the course of the plaintiff’s title, than by considering the numerous assignments of error. A brief statement of the title will enable this to be done more clearly. The plaintiff claimed under two warrants, dated February 11th 1794, in the names of Sarah Moore and Henry Miller, surveyed June 7th 1794 and returned September 3d 1794. The warrants were embraced in an application by James Nichol for twenty-six warrants, dated 11th February 1794. From entries made in Old Purchase Voucher, No. 12,457, and the Old Purchase Blotter, No. 12,457, it appears that the purchase-money of these twenty-six warrants was paid together in one sum by James Wilson,. and from a connected draft certified from the surveyor-general’s office it also appears that twenty-three of the warrants, including the Moore and Miller warrants, were surveyed together in one body, the remaining three being laid at a short distance and divided from the others by older surveys. On the 14th June
The plaintiff gave in evidence another title not apparently connected with the former, beginning with a petition of Charles Wit-man, administrator of Wm. Witman, deceased, to the Orphans’ Court for the sale for payment of debts, inter alia, of 23 tracts of land, describing them by the township, county, waters and adjoiners, so as to show that they were the same 23 tracts surveyed together including the Moore and Wilson warrants. A sale was made and confirmed in 1829 to Benjamin Coombe and Joseph Lyon, to whom the administrator of Witman conveyed on the 30th April 1833. By a deed of the same date Joseph Lyon released his interest to Benjamin Coombe. Coombe entered under his purchase on one of the tracts at the western end of the body, and built a saw-mill with some other improvements. He took timber from adjoining tracts, and had a survey made, including the Moore and Miller warrants. The Sarah Moore tract lies on the extreme easterly end of the body of surveys, and Henry Miller next adjoining on the west of the Sarah Moore survey. Excepting the Sarah Moore, and a small part of the Henry Mil
The defendants claim title under a warrant to Joseph Hoy, dated 24th- May 1815, for 400 acres, surveyed June 9th, and patented to him July 8th 1815. This survey was laid on the Sarah Moore and Henry Miller surveys, covering about an equal portion of each, and is well marked on the ground. The title to this warrant and patent became vested in Alex. E. Glass. There was evidence tending to show a possession taken under the title between 1835 and 1841.
In discussing the questions arising on the plaintiff’s title, the first fact to be noticed is, that the defendants are strangers to the entire line of the plaintiff’s title, their claim being wholly independent and resting exclusively on the Hoy title.
The first question in order is the right of Judge Wilson to the Moore and Wilson warrants. It is argued by the plaintiffs in error, who were defendants below, that under the doctrine of Strimpfler v. Roberts, 6 Harris 283, and McBarron v. Glass, 6 Casey 133, to which is added Warner v. Henby, 12 Wright 187, a trust will not be sustained between the warrantee and one who has paid the purchase-money of the warrant, after twenty-one years have elapsed, without a possession taken by the claimant,
The doctrine of Strimpfler v. Roberts, and McBarron v. Glass, is not to be doubted, but it applies to cases where the warrantee is himself a claimant of the title under his own warrant, and asserts his title; and in those cases he had actually obtained a patent. There it becomes a question of a mere resulting trust between claimants of the same title, and one alleging such a trust cannot lie by twenty-one years leaving the field to his antagonist without subjecting himself to the charge of laches and a dereliction of his rights. But in this case the question is wholly different. Sarah Moore and Henry Miller have never claimed or pretended to claim title to the warrants in their names; have never been heard of or known in the whole transaction, from the time of filing the application to this hour; and so far as we know from the evidence are mere names and not persons; though doubtless they were real persons whose names were used by Judge Wilson in taking out the warrants, according to the well known practice of the land office. No separate application was made by these persons in their own behalf, but their names come in company with twenty-four others in an application paid for together by Judge Wilson. This batch of warrants was located together, and clearly appears to belong to a single ownership and not to the individuals whose names were used. Under these circumstances the payment of the pur.chasemoney was according to the ancient practice of the land office, affirmed by repeated decisions of this court for more than half a century, sufficient evidence of the ownership of the warrants by Judge Wilson: Cox v. Grant, 1 Yeates 166; Fogler v. Evig, 2 Id. 119; Galloway v. Ogle, 2 Binn. 468; Cluggage v. Duncan, 1 S. & R. 117; Campbell v. Galbreath, 1 Watts 73; Galbraith v. Detrich, 8 Watts 110; Turner v. Waterson, 4 W. & S. 171; Fox v. Lyon, 3 Casey 16; Brock v. Savage, 7 Id. 420. The patents to the Foulkes for the Moore and Miller tract, issued to them after the deed of the heirs of Judge Wilson to them, were a recognition of this long-continued usage of the land office, and a strong confirmation of the title of Wilson to the warrants. It is true that as to so much of the land as lay within the Hoy survey and patent, these patents may be said not to be regular, the state never designing to convey the same land twice, yet these patents were not void, for they contain • a large portion of each survey not lying within the lines of the Hoy patent. Under these circumstances there was ample evidence of the ownership of the
Property levied is in the custody of the law, the end of which might be prevented if creditors could subsequently acquire a paramount interest in it. It was therefore held that a treasurer’s warrant to the sheriff to sell the lands of a delinquent collector of taxes created a lien by seizure which not only justified the sale,
Though a levari facias differs from a fi. fa., and as a statutory writ given to enforce a mortgage will not like a fi. fa. give a new lien on lands not described in the mortgage, yet tbe writ being tbe process of tbe court and tbe sale tbe act of its officer, judicially affirmed by tbe acknowledgment of tbe deed, tbe length of time and acquiescence of tbe owners and their final release, afford a strong presumption that tbe land described in tbe writ and sold under it is tbe same referred to in tbe receipt once annexed to tbe mortgage and that which was actually mortgaged.
Tbe description and sale in this case were, therefore, not an absolute nullity. Having been acquiesced in by tbe owners many years, it does not now lie in tbe mouth of a stranger to impeach tbe sale. This' is fully settled by Riland v. Eckert, 11 Harris 220-221. Tbe defendants in that case claimed in opposition to tbe Wilson title, but insisted that tbe proceeding against tbe administrator of Wilson without notice to his heirs, under tbe 34th section of tbe Act of 1834, was void, and left tbe title outstanding in bis heirs. But this court held that tbe proceeding remaining unquestioned by tbe Wilsons for many years the defendants could not be beard to gainsay tbe sale. See also Hastings v. Wagner, 7 W. & S. 217. This case is stronger, for here not only bad there been a non-claim by tbe heirs for thirty-five years, but they bad actually released to tbe holders of tbe sheriff’s title in 1847. Under all these proceedings tbe plaintiff, therefore, bad a primfi facie title to tbe Moore and Miller warrants.
Tbe next question relates to tbe right of tbe plaintiff to use tbe proceedings in tbe Orphans’ Court, and tbe sale of the Witman estate in this body of warrants, as confirmatory of the Wilson title and as tbe ground of showing title under tbe treasurer’s sale for taxes. Tbe statement of facts already made shows that tbe Witman claim, as vested in Benjamin Coombe, was not wholly irrelevant to the Wilson title. Coombe bought tbe body of lands at that sale comprehending the twenty-three warrants, and entered on a part — making valuable improvements, surveyed tbe Moore and Miller warrants with tbe others, and be and those claiming under him, including tbe owners of tbe Wilson title after it became united with tbe Coombe title in tbe Foulkes and the Preston Retreat, paid tbe taxes for many years. These acts tended inferentially to strengthen tbe Wilson title, inasmuch as this actual control of tbe lands by Coombe and bis assigns was a challenge to any title on part of Sarah Moore and Henry Miller. As to them, if they bad been actual owners bf tbe warrants in
The relevancy of the evidence of the Coombe title to the sale of the 800 acres for taxes, was not denied if competent. But it was contended that this evidence in connection with the assessment in Rush and Barry township and the Moore survey, was incompetent because the identity of the land assessed and sold in the name of Coombe can be drawn only from the assessment itself, “ which is the record that contains the description and fixes the duty.” This citation of the language of the opinion in the City of Philadelphia v. Miller, 13 Wright 440, is a misuse of that case. We were there discussing a case where it was held that an assessment of a mere numerical quantity of land, without any circumstance of identity whatever, in the name of a person wholly unknown in connection with any claim or possession of the land, good or bad, would not support a treasurer’s sale of a certain tract of land, which it was alleged was intended to be sold. The doctrine of that case, since affirmed and explained upon a second writ of error in the same case (6 P. F. Smith 488), is that the assessment itself, which is the record that states the land upon which the duty of paying the taxes is imposed, must contain some element, either of circumstance or name, which will lead to identification, otherwise, there is no possible means of performing or enforcing the duty of paying the taxes on part of the owner, the officer or the purchaser at the sale. This thought is repeated several times, and is finally summed up as the result of an extended examination of the authorities, in which, it is said, the assessment is void only when it wholly fails to lead to identification. But although there be no other element of description, yet if the name in which the assessment is made has become linked to the land by some known claim of title or possession, the cases cited and commented on in the opinion show that it is a source of identification and will support the assessment: Strauch v. Shoemaker, 1 W. & S. 166. In this case Benjamin Coombe’s name became associated and connected with the land by his purchase of the Witman claim, and thus afforded a means of identifying the land assessed in his name as 800 acres in Rush township. The evidence, therefore, was competent for the purpose of identifying the land sold at treasurer’s sale.
We have now reached the title of the defendants, and this brings us to the questions upon the surveys under the Moore and Miller warrants. All that the learned judge said upon the strong
To prevent a misapplication of these remarks it is proper to add that no question of a block survey arose in the case, and the observations apply to surveys on separate warrants. The warrants and surveys composing the batch of twenty-three surveyed together were not all given in evidence, and the court informed the jury in consequence that the principles relating to the location of a number of surveys belonging to one person in a single block did not apply to the case. Undoubtedly in the case of surveys by blocks it is not necessary to show the running of the lines of each warrant. It is sufficient if the entire body of ¡warrants be surrounded by an exterior boundary as complete as would make a good survey if the entire body of land were contained in a single warrant: Morris v. Travis, 7 S. & R. 220; Stevens v. Hughes, 3 W. & S. 466; Collins v. Barclay, 7 Barr 72, 73. In that case there might be but a single line marked for each tract, or if the tract were located in the interior, surrounded by the others on all sides, no side might be marked for it, and yet the survey would be good. In separate surveys not in a block the case would be different. The difficulty in this case arose from the fact which seemed to look out of the evidence, both from the returns of the surveys and the examinations on the ground; that though the twenty-three warrants were located in one body, they appeared to have been laid by adopting the lines of older surveys on the south and east, and by protracting for the northern and western boundaries of the whole body. This became, therefore, a question of fact for the jury, and if so found, the survey would have been doubtful even as a block survey, while as a separate survey of the Moore and Miller warrants, it left the former with but one line on the ground made by adoption of the western side of the Betz and Jones survey, and the latter without any line marked on the
• Tbe first impression made upon reading this portion of tbe answer was, that be meant that if tbe surveyor adopted tbe western side of tbe Betz and Jones survey for one line of tbe Moore survey, it was unnecessary that be should run and mark tbe other lines, which would be tbe new lines. It may be, however, that be meant that be was not expected to run and mark as new lines tbe lines of tbe Betz and Jones survey when adopted. But this want of clearness, taken in connection with tbe omission to give tbe direct instruction called for, certainly left tbe defendant’s case uncovered in tbe very point most material to it. It was, indeed, tbe very pivot of tbe question of survey. Tbe answer to tbe 2d point is liable to tbe same objection. As a statement of tbe law in support of tbe Betz and Jones surveys, tbe answer was very pertinent, and furnished good reasons why tbe jury should not conclude that they were chamber surveys. But the question here was not upon tbe title of Betz and Jones to tbe land returned as surveyed under their warrants, which probably on tbe facts presented (but which were for tbe jury) would be found to be good. Tbe jury were properly instructed that, in considering tbe question whether tbe Betz and Jones surveys were made on tbe ground, tbe fact did not depend on one line alone, but on all that tbe surveyor did under those warrants. It might well be that no line could be found on tbe ground next to tbe Moore survey, and yet that a line there bad been legally established, and could be shown by tbe work on tbe remainder of tbe surveys of Betz and Jones. Indeed, it might have been tbe closing line of those surveys, not actually parked on tbe ground from corner to corner, and yet a legal line of those surveys which could have been legally adopted. Tbe corners being made, tbe closing line would run from corner to corner, tbe corners being marked on tbe ground and establishing a real line. But tbe real question in
Judgment reversed, and a venire facias de novo awarded.