3 Watts 69 | Pa. | 1834
The opinion of the Court was delivered by
To give effect to the statute of limitations, the possession of an occupant by a colourable title, is co-extensive with his title; but the possession of an avowed intruder is confined to the land actually occupied by him. Though a settler on appropriated land is not an avowed intruder, his possession extends no further than his actual occupancy, because there is no boundary or any thing else to mark its extent. In Royer v. Benlow, it was not extended to a boundary marked out by the settler himself, because the title remains in the state till the land is measured off to the purchaser. But a purchaser, whether by settlement, warrant or location, may not measure it off for himself, because there is a public and sworn officer appointed for the purpose, whose duties are necessarily exclusive. A private survey, therefore, being merely void as against the state, cannot give colour of title against any one else. Constructive possession is an incident of title; and as the title of a settler is attached to no land in particular beyond the bounds of his occupancy, his. possession can be carried no further. Before survey made by due authority, he has but a right of prior appropriation, which he" may waive or forfeit by wore user; and though he may bind himself, as regards his neighbours, to abide by an indicated boundary when his warrant shall come to be laid, as in Gordon v. Moore, 5 Binn. 136, yet this indication of a future boundary has no operation as a circumstance in passing the title from the state. . Until warrant and survey, he remains as much a settler, notwithstanding a private designation of his boundary, as he was before; and has, according to the principle of Morris v. Thomas, 5 Binn. 77, but a right of pre-emption which gives no constructive possession till the subject of it has been legally defined. An apparent exception to this is found but in the case of a settlement on a vacancy containing no more than a settler’s allowance, and surrounded by surveys made on lawful authority; which was said, in Gilday v. Watson, 2 Serg. & Rawle 407, to extend the possession of the settler over the whole. But the bounds of the settlement were previously defined by the public officer, insomuch that he might return a survey for the settler on a proper warrant, without retracing the lines. Still as the settler might choose to take but a
But though a settler may not extend his possession without a legal survey, may he not abandon that character and acquire a colourable title to the survey of another, and by consequence a constructive possession of the land contained in it 1 A disseisor ipso facto gains the freehold of the disseisee; and though the estate thus acquired is tortious, yet, till the wrong is repaired by the reinvestiture of the owner, it has the properties of a rightful one. A disseisin is “ not only the dispossession of the freeholder, but also a substitution of the disseisor as tenant to the lord, and as one of the pares curik in place of the disseisee.” Cruise’s Dig. 15. And though there is much truth in the remark of Lord Mansfield in Taylor v. Horde, 1 Burr. 110, that “ the precise definition of what constituted a disseisin which made the disseisor the tenant of the demandant’s precipe though the owner’s entry was not taken away, was once known, but is not now to be found;” yet he himself admits that “ the consequences of actual disseisin, considered as such, continue law to this day.” By the English common law the disseisee cannot dispose of the land or devise it; and a descent takes away his right of entry. Though there is, as insisted by Lord Mansfield, an undoubted difference in this respect between a disseisin by election, and an actual disseisin, which makes the disseisor a freeholder in spite of the owner; and though a descent is necessary in the case of the latter to take away the owner’s entry and turn his estate to a right, yet an actual disseisin seems to have the effect, as supposed by Lord Mansfield himself, of creating a tortious freehold in the disseisor even before such descent. If such then be its effect when disseisin is attended with its original cofisequences, it must have the effect here of transferring the possession of the disseisee, whether actual or constructive, as entirely as it transfers the estate elsewhere, though with us a descent does not take away the entry of the owner, nor the disseisin incapacitate him to perform any otherwise valid act of alienation. Though our property is allodial, yet feudal tenures, by which this peculiar effect of a disseisin is produced, may be said to exist among us in stheir consequences and the qualities which they originally imparted to estates; as for instance in precluding every limitation founded on an abeyance of the fee. Granting this, the argument is that actual disseisin extends no further than the actual ouster,’and consequently only to the land actually evicted ; and it must be conceded that of land, an offiee, and some other estates, though not of a rent, which is entire, there may be a disseisin in part. But to prevent a disseisin of part from being a disseisin of the whole, the disseisee must have been suffered to remain in the actual possession of the residue; for such seems to be Dame Pett’s case, Brownl. 230. In that case it is
But may not one who entered originally as a settler or squatter, change the character of his disseisin by exercising acts of ownership under the title of the disseisee, and thus become a desseisor by colour of title ? It was said by Chief Justice Tilghman, in Royer v. Benlow, and repeated by Mr Justice Rogers, in delivering the opinion of the court in Read v. Goodyear, 17 Serg. & Rawle 350, that payment of the taxes raises a presumption of ouster from the whole tract; and' that the acquiescence of the owner is tantamount to an acknowledgement of such ouster. These dicta, though not conclusive, are entitled to a preponderating weight, as well for the respect we feel for the quarter whence they come, as for their intrinsic good sense. The taxes are usually assessed in the name of the warrantee; and where they are paid by the intruder, it is a direct assertion on the one side, and a concession on the other, of possession under the warrant. But the same consequence would follow from payment of taxes assessed in the name of the occupant. It is the ownership that is taxed; and necessariiy the ownership of him who is entitled to the warrant; for the land is never taxed until the title is out of the commonwealth — at least it is the title which guides the assessor in designating the subject of the tax. In the case of conflicting titles, there have been instances of double assessment; and though that is illegal, yet payment of the tax under either title, is necessarily an assertion of ownership under that title. The point has not been directly decided; but we have no difficulty in saying that payment of the taxes for twenty-one years, with the acquiescence of the owner, gives the occupant a title by the statute of limitations to the whole.
The objection to the receipts and assessments, is as unfounded as the exception to the charge. To the rule that payments to any other person than the party to the suit must be proved by a witness, a payment to a public officer is an established exception. Thus it was ruled in Cluggage v. Swan, 4 Binn. 150, that receipts for payments into the land office, or to deputy surveyors for their fees, are competent evidence when given in the course of the officer’s business ; and receipts by collectors of taxes must be equally so. The duplicate assessments, being public documents, were evidently proper to lay a ground for the receipts. Thus it appears that none of the assignments of error have been sustained.
Judgment affirmed.