M'Henry v. M'Call

| Pa. | Sep 15, 1840

The opinion of the court was delivered by

Huston, J.

Archibald M’Call claimed the land in dispute as having been the property of John Nicholson, once comptroller-general of Pennsylvania, and who being, on settlement of his accounts, found largely indebted to the state, certain laws were passed and proceedings had, under which certain lauds, and his interest in certain lands were sold, and the title to the tract in question deduced to A. M’Call the plaintiff below. In order to understand the matter in contest, it will be necessary to state the outline of a course of legislation on the subject of accounts with public officers, and it will be only an outline; to go into detail and cite all the laws and all the proceedings, would be to write a book, not a judicial opinion. Those laws began with the first constitution in 1776. The names and powers of the officers of the accounting department, have changed by different laws. The comptroller-general had much of the power vested in him; .the act of February 18, 1785, in some measure reduced former acts to one. Many accounts from the then late war, were in a course of settlement, and the gradual but constant depreciation of the paper money of the war period, and also of an emission at the close of the war, made the settlement of accounts one of real difficulty. This law allowed an appeal to the supreme court, and provided very minutelyfor the issue and trial. Among other provisions of this act, it declared the balance found against any accountant, when confirmed by the executive council, to be a lien on all lands of the debtor in all parts of the state. Of this act, Judge Smith, in the notes to his edition of the laws, page 27, says, the principles remain in force, though considerable alterations in manner of proceeding have taken place.

In 1789, the office of the register-general was established and a register-general appointed; to him all accounts thereafter settled were to be submitted before finally closed, and afterwards submitted to the supreme executive council. In the same year certain duties, relating to these matters, were assigned to the state treasurer.

After the adoption of the constitution of 1790, all duties which had been allotted to the supreme executive council were transferred to the governor; Jlct of September 21, 1791; but accounts thereafter were to be referred to the governor, only in cases in which 'the comptroller-general and register-general should disagree.

This act gave to the comptroller-general power to proceed in a summary way for the collection of all balances from those indebted, or to direct the sheriff to take the body, and seize and secure the real and personal estate of all debtors, and if the debt was not secured in a certain period, to issue other process to sell the property, &c., &c.

In process of a few years, the settlement of the accounts of John Nicholson himself, became an important matter. He was found to be a defaulter, and an act of assembly, April 20, 1795, was passed for the settlement of his accounts, which were to be submitted to the next legislature; it was in fact more to ascertain the propriety of an impending impeachment, than to affect the lien or the general law.

The act of April 4, 1792, introduces the general provisions for settlement of the accounts of all officers; by this, the comptroller-general is a prominent officer in the settlement of'accounts.

For a reference and abstract of most of the laws on this subject," I refer to Smith’s Executors v. Nicholson, 4 Yeates 6. This case decided only the effect of the lien of the state.

The accounts were thus closed, but little or nothing was done as to collecting the debt. John Nicholson had lands in nearly every, or perhaps in every, county in the state; for some of them his title was perfect, for some it was only inceptive, held by articles of agreement; for some he had warrants and surveys, but no return of survey, because of non-payment of surveying fees; much of his land was incumbered by mortgages, and it was not easy to discover what was his property or the nature of his interest. On the 31st March 1806, an act was passed appointing Cadwallader Evans, John Steele and John Lyon, Esqs., commissioners, to obtain from the recorders and prothonotaries of the several counties, copies of all deeds and other writings relating to the estate of John Nicholson, and a transcript of every mortgage and judgment affecting his lands. The officers of the land office were directed to furnish copies of all papers in their offices which might disclose any of his estate. The commissioners were to ascertain the situation and value of the estate as far as practicable. To average the demand of the commonwealth on the whole of the several estates subject to the lien of the estate, and make report to the governor, who should cause to be sold, by the sheriff of the respective counties, according to due course of law, the several estates, or so much thereof as should produce the amount averaged or assessed as aforesaid, on each particular estate. And it was provided that when any person or persons, or managers of any of the land companies, who have any legal or equitable claim or interest in any particular estate, shall pay to the state treasury the amount of the state debt averaged on such estate or estates, or secure the same to be paid in two annual instalments, with interest; it shall be lawful for the said commissioners, or a majority of them, to transfer and set over the lien of the state thereon, to the sole use and benefit of such persons, or to the use of such company so claiming and paying as aforesaid. They had also power to compromise disputes, to purchase property sold by the sheriff, which they believed was selling at an under value, but these purchases in all cases to be for the use of the commonwealth. The commissioners were to take an oath diligently, faithfully and impartially to perform the several duties, and in case of vacancy from any cause, the governor to appoint so as to fill the place. See eighth volume of Bioren 166, and the following pages, for other provisions not material here.

At that period there was so much back land, and so few persons disposed to purchase for cash, that it was soon found to be probable that the whole land would not pay the debt, and it was Useless as well as impracticable to average, as was proposed by this law. To sell in due course of law, seemed to require a fieri facias levy, and inquisition, and on return of this a venditioni ex-ponas sale and deed; and to go through the counties of this state in succession, in this way, would require some twenty or thirty years, during which the state must pay the taxes, the land lie uncultivated, or become possessed by squatters, and the debt doubled by interest, payment of taxes and costs. This produced the act of March 1807. This act authorized the commissioners to proceed and sell the lands of John Nicholson, or his interest in them, on giving the notice therein prescribed; but this act did not abridge the powers of the commissioners to compromise under the last mentioned act.

The second section directs the terms on which the sales shall be made, for cash or bonds, with security, bearing interest; and where bonds were given, directs a certificate of purchase to be delivered to the buyer, and when the money is paid, a deed to be executed, “for such estate as the said John Nicholson had and held the same, at the commencement of the lien of the commonioealth against the estate of the said John Nicholson, which said conveyance or copies of the record thereof shall be prima facie evidence of the grantee’s title,” subject, however, to payment of any arrears of the purchase-money.

The third section authorizes the sale by large bodies or single tracts. The fourth section again relates to their power to compromise, and “ upon any compromise made with any person or persons, and commissioners or a majority of them, at the request of the parties, and upon their paying or securing the perchase-money, may and shall execute an assignment, under their hands and seals, of so much of the lien of the commonwealth, against the estate of tho late John Nicholson, as may be equivalent to the consideration paid or secured to be paid to the state by such party; and from the date of such assignment, the whole amount thereof shall be principal bearing interest, and the holder or holders ofsueh assignment, or his or their assigns, may at any time proceed upon the liens of this commonioealth to sell the lands which may constitute the subject ofsueh compromise.”

The seventh section relates to the Asylum Company, and that the said company had refused to the commissioners the necessary information as to the lands claimed by it, and the interest of John Nicholson in said lands, and it provides that the president and managers of the Asylum Company shall within three months from the passage of this act, deliver or cause to be delivered to the secretary of the commonwealth, an exact copy of their transfer book or register of shares in the stock of said company, which may have been transferred by the company to individuals, or by individuals to the company, or to other individuals.

(I understand what is called the “ large document,” to contain a list and description of warrants, surveys and patents, conveyed by John Nicholson to the company, or perhaps it is the list of lands belonging to the company, required by the eighth and following sections.)

The eighth section requires the company to file in the office of the secretary of state, a schedule of lands now or at any time heretofore claimed and held by said company, exhibiting the quantity and local situation of each body of land; and also a specification of their title to each body or tract; and if any lands have been transferred by any other person than said John Nicholson to the said company, or in trust for them, and whether these transfers were made on a contract with the company, or in pursuance of some previous contract with John Nicholson.

The ninth section states what shall be the consequence if the company refuse to comply with this act, and concludes with a proviso, that if the said commissioners and company shall compromise the difficulties by this act, intended to be remedied, this act, as far as respects said company, shall be null and void.

They did compromise on the 18th of March 1808. The agreement of compromise and payment to the state of above 20,000 dollars, was given in evidence, and a transfer of the lien of the state on the lands of the company, for so much, was made by the commissioners.

On March 24, 1808, 8 Bioren 416, another act of assembly was passed, in which, after stating that the preceding acts were found not so well adapted to the end designed, for want of a more specific designation of the mode of sale, to be adopted and pursued by the person or persons who have or may become parties to such settlement or compromise, therefore it was enacted, that any person or persons, and the majority of such persons, where there are more than two, and the survivor and survivors of such persons, as may have or shall hereafter become a party to any settlement or compromise, with the said commissioners, shall have the same powers and authority as the said commissioners, or a majority of them, have by the several acts of assembly of this state, upon process granted by the governor as therein prescribed, to make and carry into effect a sale of such warrants, lands, tenements and hereditaments, estate and interest whatsoever, which John Nicholson, late deceased, had any claim or interest in, and which may be the subject of such settlement or compromise respectively.

We now come to the evidence offered in this case, which was excepted to, and bills of exceptions, which, after stating the evidence offered, I shall notice. The plaintiff read five several patents to John Nicholson, for tracts, in the names of William Montgomery, Hannah Montgomery, John Montgomery and John Young. March 3, 1796, settlement of John Nicholson’s account, by John Donaldson, comptroller-general. March 3, 1796, entered in register-general’s office, by S. Bryan, register general, 58,429 dollars 24 cents. December 20, 1796, account settled by register-general, balance 51,209 dollars 22 cents. (There is some confusion in the paper book before me, as it referred to evidence given in another cause, not before us; perhaps the amounts above are not the final settlement, but 63,729 dollars S6 cents.)

They then gave in evidence, what is called the large document, certified from the office of the secretary of state, containing lists of lands compromised by the state commissioners, C. Evans, J. Lyon and Joseph Hiester, (appointed instead of J. Steele) and A. M’Call, J. Ashley and T. Astley. March 18,1S08, the compromise. April 4, ISOS, copy of commission, by governor M’Kean, to J. Ashley and Thomas Astley, authorizing them to make sale of the lands embraced in the compromise. November 23, 1808, return of sale under this compromise. June 25, 1808, deed, M’Call, Ashley and Astley to William J. Bell. January 14, 1809, this deed acknowledged. November 20, 1813, recorded in Northumberland county. January 17, 1809, deed, William J. Bell to A. M’Call, J. Ashley and T. Astley, from record book D, 439. May 15, 1823, deed, M’Call, Ashley and Astley, trustees of the Asylum Company of the first part, and M’Call, Ashley and Astley and James Gibson, managers of said company, of the second part, and Thomas Newman of the third part. May 21, 1S23, assignment of said deed, Thomas Newman to Archibald M’Call.

To all this evidence, the many exceptions amounted to this: — ■ That where a special power over lands of another is given, the power must appear to have been strictly pursued, and every minute step distinctly proved, and cases from our reports, in which this doctrine is repeatedly laid dojvn, as to sales of lands, were cited.

In 13 Serg. & Rawle 208, the present chief justice recognizes these decisions on common law principles, and also the power and the propriety, if not necessity, of the legislature altering the law on this subject. Where there had been an observance of the most minute details, it was nearly impossible to perpetuate the evidence of the facts, or as the burden of proving them lay on the purchaser, to show a title on which he might recover. The legislature interposed, and at length succeeded in placing the matter on just ground, as regarded the owner, and in ^providing an effectual remedy for the purchaser by the fourth section of the act of March 13, 1S15, provided a tax was due on the land and unpaid at the time of the sale.

The objection above stated, and the difficulty it would occasion, were foreseen by the legislature, and they have met and obviated it in the second section of the act of March 19, 1807, above cited, where they say the conveyance of the commissioners for the state, or copies of the records thereof, shall be prima facie evidence of the grantee’s title, and in the last law where the same power and authority is given to those who compromise, to convey and carry a sale into complete effect. The deeds then made under the laws referred to, are prima facie evidence of title in the grantee, and until some proof impugning this is given, the grantee is not bound to show a strict compliance with every thing prescribed by the several laws on the subject. Although this naked question has not before been brought before this court, the doctrine here laid down has been decided in the common pleas repeatedly, and although able counsel were engaged, the point was not so much doubted as to induce them to advise a writ of error. I recovered several tracts for Mr Grant and Mr Rawle, on the deed alone, in Centre county, before Judge Walker.

This matter of the lien of the state, was settled by the then supreme court in 1803, 4 Yeates 6; and the whole question of lien and proceedings were supported in the supreme court of the United States, 7 Peters. It is time it should be considered settled.

The next matter to be considered, is an objection to all the deeds, above mentioned, subsequent to the compromise and sale under it, on the warrant of Governor M’Kean to the persons with whom the compromise was made, that is, by Ashley, Astley and M’Call to William J. Bell, and from him through several persons, until at length the title is vested in Mr M’Call the plaintiff. And here again I have to regret, that neither the deeds, nor dny abstracts of them more full than is above stated, were submitted to us. The point however, is not new; it has been before us in several cases, from the case of the.trustees under the assignment of Mr T. Coxe, down to the case of the Dauphin and Susquehanna Coal Company, in 9 Watts.

The deed of trustees conveys the legal title,' and the legal title will support an ejectment against a stranger to the trust and wrongdoer. If those beneficially interested are in possession, or interested against him having the legal title, a different question would be presented; if the trustees convey improperly, they may be answerable to those in interest, or, on complaint, may be removed; but it is not for a stranger to call for a fulfilment of trusts, or object to a title, legal on its face, because of a surmise of a violation of the rights of those for whose use the suit is brought, and who themselves do not object. There is also a string of objections to deeds from John Nicholson to Robert Morris, and from Nicholson and Morris, or one of them, to Jared Ingersoll and M. Clarkson, and from these again to John Ashley, Thomas Astley and A. M’Call for the Asylum Company. The preceding objections apply to these, and, in addition, the commissioners of the state treated with those gentlemen, and conveyed to them on the compromise, as trustees of the Asylum Company; they accepted the deed as such, and conveyed as such, and no third person, no one not interested in the company, can dispute that they were trustees. The objection, that all the deeds and documents recited were not produced, was not pressed. It would introduce strange effects, if every person showing title and possession, or where the lands are uncultivated, superintendence and payment of taxes, must go back and produce his deeds and evidence of the truth of all recitals from 1783, or any period beyond twehty-one, or at farthest forty years.'

The rest of the case presents much evidence as to the acts of the agents of the Asylum Company, and some 'evidence of those under whom the defendants claim, having become tenants of the company; and some evidence contradicting this; all this was left to the jury. Before I come to this, I must notice, that on offering Samuel Webb as a witness, to prove what occurred as to a purchase, plaintiff offered to show a written authority to him to act for the company; it was objected that a corporation can only act under its seal. To this the answer is, that it is not always the law; many acts may be done by a corporation not evidenced by its seal; among which may be the appointing an agent to pay taxes, resurvey lands, and even agree with settlers to go on it, but the conclusive answer is, that this company ivas not a corporation.

The defendants submitted to the court certain points and errors assigned in the answer to the second point, and to a part of the general charge.

The first we have observed on already. The second, and the answer to it, are mainly relied on. All those conversant in our courts know, that great astuteness is sometimes exhibited in drawing the points to which answers from the court are requested. Saying that the evidence will justify the jury in finding that, the possession of defendants and Knowes (under whom the principal defendant M’Kinstry claimed) was adverse to plaintiff’s title, does not at first view appear to be very different from saying — it is a question of fact for you to determine whether it was adverse to the plaintiff or not. The court thought, however, that there was some difference, and told the jury, that if they believed the evidence, they might find the other way, without stating the whole of the evidence on this subject, which was very voluminous. I have truly stated there was some contrariety in it — it seemed clear, that when defendants began to work on the land, all knew it to be warranted and surveyed, though perhaps none of them knew who was the owner, it was positively sworn, that when Webb came as agent of the company, and told who was the owner, they agreed to purchase, but could pay nothing; they were poor, but the price was agreed on, and when they could pay ten per cent, they were to have a written title; it was proved, and was matter of notoriety, that the failure of Nicholson and Morris, the principal owners, the lien of the state, and consequent uncertainty of title, occasioned delay. There was proof that the settlers, who had agreed with Webb less than twenty-one years ago, at length began to hope they would hear no more of the Asylum Company, and agreed to hold by settlement. The answers to all points on the same subject are to be taken together. On the third point, the court said a parol acknowledgment, to take a case out of the statute, must be such acknowledgment as to show that the defendant did not intend to hold adversely to, but under the plaintiff’s title, and such as to induce the plaintiff to believe that he did so hold under it. This was all the defendant asked. A jury is supposed not to be hostile to a neighbour: once tell them, not that they must weigh all the evidence and draw a fair conclusion, but that they may look at part of the evidence, and will be justified in finding on it, and we change the law, and the change will not be an amendment. The judge would not have done exactly his duty, if he had stopped at his answer to the second point; but he answers the third, and then says, in substance, I have told what agreement and understanding are sufficient to take a case out of the statute, and you arc to consider all the evidence, and if from the whole of it you believe the defendants did make an agreement, understood by all, to purchase on the terms and in the manner stated, and this within twenty-one years before bringing the suit, the statute of limitations does not protect them.

Judgment affirmed.