Glass v. Gilbert

The opinion of the court was delivered, July 2d 1868, by A&new, J. 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 — 285 — 1794 Judge Wilson executed a mortgage to Charles Wolfstonecroft and others for a large body of lands, referring to certain articles of agreement and lists of' lands annexed to them, and to fourteen receipts for money paid for warrants, recited as annexed to the mortgage, all for warrants issued and surveyed, or to be surveyed. These papers, which were necessary to identify the lands mortgaged, were not recorded with the mortgage, and seem to have been lost. A scire facias issued on this mortgage in 1829, at the suit of William Parker, assignee of the mortgagees, against Bird Wilson and John Adlum, surviving administrators of James Wilson, deceased. The sci. fa. and alias (both of which were returned nihil), contained no designation of the lands. Judgment was entered on motion on the 28th October 1829. On this judgment two writs of levari facias issued, containing no description of the land, but to the pluries writ issued to February Term 1831, a list of all the warrants issued on the 11th February 1794 was attached for the purpose of sale. This included the Moore and Miller warrants. William Parker became the purchaser of the lands under this writ, the sale being regularly returned by the sheriff, and a deed made to him regularly acknowledged October 25th 1831, and entered of record. William Parker by his will proved July 5th 1845, devised these lands to Richard P. Foulke and William P. Foulke, to whom Bird Wilson and Emily Hollingsworth, the heirs of James Wilson, released all their title by deed, dated 14th May 1847. The Foulkes, on the 13th November 1847, conveyed to a corporation called the “ Preston Retreat” the undivided half of their title to the twenty-three warrants ; and they and the Preston Retreat afterwards conveyed the whole to the plaintiff John Gilbert by deed of April 3d 1863. 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 — 286 — ler surveys (making about 500 acres, for which this ejectment has been brought), the whole body of 23 tracts had been surveyed in the preceding spring under warrants of Robert Morris, now known as the Girard or City of Philadelphia lands. The Moore and Miller tracts lay in Rush now Mahanoy township, and the remainder in what was formerly Barry township. Eight hundred acres of land were assessed in Rush township to Benjamin Coombe as unseated in 1835, and sold by the treasurer for unpaid taxes in 1836 to Benjamin Coombe. The evidence leaves but little doubt that these 800 acres were the Moore and Miller tracts; and the evidence objected -to by the defendants as to the remainder of the lands lying in Barry township and the underlying Morris surveys, was offered to show that the unseated 800 acres in Rush township was that part of Coombe’s ownership lying in the Moore and Miller surveys. Coombe mortgaged the 23 tracts together in a body to Dr. Jonas Preston on the 4th June 1835. On this mortgage proceedings were had resulting in a sheriff’s sale and deed of the lands to the Preston Retreat in 1840. The Preston Retreat united with the Eoulkes in conveying, as before stated, to the plaintiff Gilbert, by deed of-April 3d 1863. Erom 1835 these lands appear to have been assessed to Benjamin Coombe and his assigns down to the bringing of this suit. Two years after the deed of the Eoulkes to the Preston Retreat for the undivided half of their claim under the Wilson title, to wit, beginning in 1850, the taxes were jointly assessed to the Eoulkes and the Preston Retreat, showing that the parties held together by some arrangement both the Wilson and Coombe claims. 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, — 287 — payment of taxes or other acts of notorious dominion exercised within the twenty-one years by the claimant. The court below sustained this position, and rested the case not on the ownership of the warrant by Judge Wilson, but upon the presumption of a conveyance by the warrantee to him, or to some one, arising from lapse of time. In this the learned judge erred in favor of the plaintiff in error. 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 — 288 — warrants of Judge Wilson without resorting to the presumption of a conveyance from the warrantees; a presumption, however, not negatived by the proof, but entirely consistent with the facts of the case: oa question of the presumption of a grant it is not necessary that actual possession should always be in the presumptive grantee. Hastings v. Wagner, 7 W. & S. 216, 217, is a case where the land was in the actual possession of a claimant hostile to the title. The presumption grows out of the relations between the presumptive grantor and grantee, and not those of the adverse claimant. See also Fox v. Thompson, 7 Casey 172. The judge was therefore right in submitting to the jury the evidence of Judge Wilson’s ownership of these warrants. We think he was right also in holding the evidence of the sale of Wilson’s title under his mortgage to Wolfstonecroft to be sufficient to pass title under the circumstances. It is to be noticed on this point that the sale has remained ever since unquestioned by Wilson’s heirs, while the defendants claim by a title entirely independent and adverse. The question does not arise between the heirs of Wilson or a grantee, mortgagee or judgment-creditor of Wilson, and the purchaser under the mortgage. The judgment was obtained against the administrators of Wilson, and a sale made thirty-six years before the trial, which has remained without objection. The judgment is not inquirable into in this action: Colley v. Latimer, 5 S. & R. 211; Allison v. Rankin, 7 Id. 269; Hauer’s Appeal, 5 W. & S. 475. The pluries lev. fa. embraced a schedule of the tracts to be sold, and an actual sale of them was made to a bond fide purchaser, which was confirmed by the court in taking the acknowledgment of the sheriff’s deed. The sale of the land contained in the schedule attached to the writ was therefore a judicial act, the writjbeing the process of the court and not of the party issuing it. The writ, though irregular, was not void. A levari facias, says Blackstone, is a writ “ which affects a man’s goods and the profits of his lands by commanding the sheriff to levy the plaintiff’s debt on the lands and goods of of the defendant:” 3 Com. 417. In Pennsylvania it is the ordinary writ for collecting charges upon lands, as in the cases of mortgages, mechanics’ claims, and municipal charges: Hart v. Homiller, Exr., 11 Harris 43. In Stouffer v. Commissioners, 1 Watts 300, it was said that a lien is a necessary and inseparable incident of a seizure in execution by the principles of the common law. 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, — 289 — but preserved tbe proceeds of sale against lien-creditors subsequent to the levy. Tbe same effect is given to a levy of land upon execution where tbe judgment has no lien: Packer’s Appeal, 6 Barr 277; Hinds v. Scott, 1 Jones 25; Davis v. Ehrman, 8 Harris 259. 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 — 290 — tbeir names, it was a matter of indifference who ■ it was that challenged their title by taking possession and controlling their lands. Hence their total indifference and non-claim when their right was thus challenged, operated to strengthen the positive title of Wilson to the warrants, shown by his payment of the purchase-money, and the subsequent sale under the mortgage and the release of his heirs. 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 — 291 — presumption in favor of the regularity of these surveys, and that they were actually made upon the ground either by original or legally adopted lines, was very proper and necessary. In a trial at a distance of seventy years from the time of location, a survey twenty years older than the one that endeavors to supplant it, is entitled to every reasonable presumption in its favor. Slight evidence of marks found upon the ground corresponding with the survey returned ought to have great weight in repelling the charge of its being a mere chamber survey. Though the making of a single line in a quadrilateral or a polygon will not constitute a good survey, the evidence of one line corresponding to the location and time of survey, or the existence of an older line made in pursuance of authority, and shown by the return to have been adopted by the surveyor, is potent evidence of the fact of a survey actually made on the land. In recent locations where the monuments of the survey can be readily found, and the question of chamber survey easily solved, the absence of all evidence of the lines of survey is strong proof of the fact of a mere protraction of the lines on paper, where there are no natural boundaries corresponding to the survey. But when a long lapse of time, and the hand of man, may have obliterated these monuments, when death has removed the actors of that day from the scene, and when the evidence of a transaction so ancient must necessarily have ceased in a large measure to exist, slight circumstances should turn the scale in favor of the validity of the more ancient survey when the time intervening between them is so great, and the younger survey was made by a different hand. A chamber survey is not ipso facto a void act. If it be by the adoption of the lines of older surveys, made under authority of law, to the same extent that is necessary to make a good survey on the ground, it is as valid as though done by running and marking the lines afresh. The adoption of old lines legally made is as good as the making of new lines, the rule in such cases being not to re-mark. It is virtually a survey made on the ground, for the old lines are run and marked, and being done under some legal warrant or authority the means of ascertaining them is as easy as if they had been made under the warrant to which they are fitted. This was settled in Caul v. Spring, 2 Watts 390. Surveys of this kind are entitled to the same favorable presumptions as those for which original lines are made. And where some of the lines only have been made by adoption; after so great a lapse of time the fact of not finding the evidence of original work on the lines not made by adoption is not conclusive of the fact that they were not run. But if the fact be made to appear that the survey was fitted only to a single line of an older survey, leaving the other lines unmade in figures of four or more sides, and the survey is merely finished by protraction on paper, it is invalid against a junior survey made — 292 — within twenty-one years. It is no better than the running of one line and then leaving the survey incomplete. But if twenty-one years elapse before interference by a junior survey the presumption in favor of the first survey becomes absolute, even in the case of a chamber survey. These principles may be found in the following cases: — As to what constitutes a good survey: Fugate v. Coxe, 4 S. & R. 294; Morris v. Travis, 7 Id. 220. The adoption of old lines: McRhea v. Plummer, 1 Binn. 227; Covert v. Irwin, 3 S. & R. 283; Lamborne v. Hartswick,. 13 S. & R. 113; Caul v. Spring, 2 Watts 390; Collins v. Barclay, 7 Barr 73. The presumptions in favor of surveys made and returned : Fugate v. Coxe, supra; Lamborne v. Hartswick, supra; Mock v. Astley, 13 S. & R. 382; Norris v. Hamilton, 7 Watts 91. Conclusiveness of the presumption after twenty-one years : Nieman v. Ward, 1 W. & S. 68; Collins v. Barclay, supra; Norris v. Hamilton, supra; McBarron v. Gilbert, 6 Wright 268. Chamber surveys: Caul v. Spring, supra; McBarron v. Gilbert, supra. 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 — 293 — ground. It was in view of this state of the evidence the defendants’ 1st and 2d points were framed. The 1st point substantially-called upon the court to say that if on all the evidence the jury found the Moore and Miller surveys to be mere chamber surveys, they were not valid, and that-tbe adoption of tbe line of tbe older survey, as one boundary only of tbe Moore survey, would not help the plaintiffs’ case. Tbe answer of tbe court was a fair statement of tbe duty of tbe surveyor in making a survey which would lead a jury to understand what is necessary to constitute a good survey, yet it did not fully and directly meet tbe point. Tbe defendants bad a right to an answer whether such a survey’as was described in tbe point was good or not. Instead of this, tbe general statement of tbe answer was rendered dubious and uncertain by tbe concluding portion in which tbe judge says, and “ hence tbe surveyor was not expected to run and mark new lines.” • 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 — 294 — volved in the 2d point related to the Moore survey, and it was to this the attention of the court was called. It was upon the legal aspect of the case, if the jury found that the Moore survey was not executed by the adoption of an existing line made for another survey. If, at the time of the Moore survey, in 1794, the Betz and Jones surveys were mere chamber surveys, without lines on the ground to which the Moore survey could then attach, the 2d point asked the court to say that such a then non-existing line, a mere protraction on paper, was not one that could be adopted. Adopted lines must be real lines made under authority of law, in order to prevent the survey adopting’ them from being itself a chamber survey. But how can the adoption of the lines of a mere chamber survey redeem the second survey from the character of a chamber survey also ? If then a chamber survey, and another had appropriated the land before time had cured it by a legal presumption, it is impossible to perceive how the presumption in favor of the Betz and Moore survey, subsequently arising, can relate back to the time of the location of the Moore survey, and change its character. Being made at a time when the Betz and Jones surveys had neither lines on the ground nor the presumption of law to establish them as such, there was nothing legally existing to be adopted. The Moore survey thus being a chamber survey, and the entry and survey for Hoy within the twenty-one years, the court was called on to say what was the legal effect, and this point the court did not fully and clearly respond to. In every other aspect the court seems to have met the case fully and tried it well. But as the question of chamber survey or not was the real point of controversy, the defendants were entitled to a full instruction on the effect, if the jury found the Betz and Jones surveys to be chamber locations when the Moore and Miller surveys were laid. The court was perfectly right in stating the presumptions in favor of these surveys as actual locations on the ground very strongly, in view of the facts and the lapse of time, but for the omission to answer the 1st and 2d points of the defendants fully and directly, so as to be properly understood, the judgment must be reversed. Judgment reversed, and a venire facias de novo awarded.