4 Pa. 214 | Pa. | 1846
The first error assigned is, that the court erred in their answer to the second point of the plaintiff below, who is the plaintiff in error. That point is in the following words: “ Though the jury should believe from the evidence, that William Townly did settle on the vacancy at Spring Creek, before the date of plaintiff’s survey,:yet, if he failed to make it his place of abode, and, either from inclination or any other peculiarity in his circumstances, was absent from his place one-half of his time or more during the time of his alleged settlement before the date of plaintiff’s survey, he gained no pre-emption right to the land, and the plaintiffs have shown a good title.” The court, in their answer to this point, treat it as a question of abandonment, of which the counsel for plaintiff complains, and alleges that it was no answer. But it is really a question of abandonment, and nothing else. In the body of his charge, the judge distinctly instructs the jury, that the plaintiff had shown a good, legal title, and was entitled to recover, unless the defendant had established, that Townly commenced an actual settlement, and had appropriated the land before the date of the survey on the warrant, under which the plaintiff claims, and continued it from time to time, so as to give him the pre-emption right which the law secures to the actual settler. It only remained for the court to answer, so far as the absence of Townly would constitute an abandonment of his equity. The first member of the point, in fact, admits the settlement of Townly, and then propounds the inquiry as to the effect of his absence one-half of his time and more from his settlement. The counsel seems to have thought that he was entitled to a categorical answer from the court, that such absence, without relation to the circumstances of the case, would obliterate the equity, and amount to an abandonment. If the court had thought proper to say, that such absence, of itself, would not constitute an abandon-
The .-next error assigned is,- the answer of the court to the third., point, which-is in these words: “ If ’the jury believe, ..from the evidence, that Town'ly settled on the land with the intention of cutting and manufacturing-lumber, as testified by .himself, instead of drawing ■ his subsistence from the .soil, he gained no pre-emption right by his settlement.'” The judge replies: ¿¿This point is answered and the law correctly laid .down, in the answer to the first point.”
The. answer' of the court to the first point contains a great many things', and,, among the rest, a plenary answer to the plaintiff’s third point. ■ The court say:. “ If the intention -is merely to occupy a tract of land" for the purpose of stripping.it of the timber and making ■gainmf it, and then abandoning it, such acts would not give a person any pre-emption right, although he might.be in actual possession' and building a mill at the time the warrant was laid. . .
This answer is quite as' favourable to 'the 'plaintiff as the law
The next assignment is, that the court erred in answering the plaintiff’s fourth point, which is as follows : “ If the jury believe that no person lived on the Townly improvement at the time the taxes were assessed for the year 1836, then the sale by the treasurer passes a good title for the whole of the tract No. 3736.” The court answer—“If there was neither residence, nor cultivation on the Townly claim, in 1836, it would be so, but if there was cultivation or residence on that part of the Townly claim not included in the survey on the warrant, No. 3736, then no part of the Townly claim could be sold.” It is true that the court speaks of the year 1836, without reference to the time when the tax was assessed for that year. The tax is usually assessed in the month of November, but always in the previous year; and it is true that the time of assessment fixes the character of the land as seated or unseated. We may admit that the court was somewhat oblivious in not refer
The next and last error assigned is, that the court was in error in answering the^flh point, which is as follows: “ The court is requested to charge the jury, that the defendants having failed to show the payment of taxes for the years 1836 and 1837, on the Townly improvement, the plaintiffs’ tax deed gives them a good title for the whole tract No. 3736, and therefore they must recover in this suit. To which the court reply: “ This would be so if the Townly tract was unseated ; if it was not unseated, it was not necessary to show the payment.of taxes ; whether it was seated or not, the jury will determine from the evidence.”
The court had instructed the jury in the body of their charge what ingredients were necessary to constitute a settlement, and had
The errors assigned have not been sustained. The cause was submitted to the jury fairly on the facts, with suitable instructions on all the points raised. Judgment affirmed.