Brotherline v. Hammond

The opinion of the court was delivered, May 25th 1871, by Agnew, J. The locus in quo of the trespasses complained of in these two actions, was upon a tract owned by the late Dr. Peter Shoenberger, warranted in the name of Daniel Kritler, and containing 461 acres and 97 perches, lying in Blair township, Blair county. It had been assessed in that name for many years in Blair township and taxes paid upon it by Dr. Shoenberger, and after his death by those who succeeded to his title. It was therefore a well-known tract situate in that township, and the same land without dispute upon which the alleged trespass was committed. The defendant attempted to show title in himself, by proving a sale for taxes of an unseated tract of land assessed in the name of Daniel Kladder, containing 230 acres, in Frankstown township. The burthen of proof was on the defendant to show the identity of the tract sold — that it was the same as the well-known tract in the warrant name of Daniel Kritler of 461 acres 97 perches lying in Blair township. The judge below held that there was nothing in the names which could identify them as one and the same tract on the principle of idem sonans, and therefore identification must be derived from other sources. The quantity of land in each, and the townships, afforded no means of identification, and that there was no other evidence which under the circumstances of the cause could warrant the conclusion, that the Daniel Kladder tract of 230 acres in Frankstown township was the Daniel Kritler tract of 461 acres in Blair township. In such a case it would require very clear and satisfactory evidence that they were the same. The tract owned by Dr. Shoenberger was assessed in its true name in Blair township for many years before the sale, and he had paid .taxes always for it there. The division of the township had taken place in 1846, and his land was assessed in Blair township ever afterward. But the defendant relied on the fact that the land had been assessed in the name of Daniel Kladder in Frankstown township before 1847, and in and after that year that 230 acres were assessed in the same name in Frankstown township, and 230 acres assessed in that name in Huston township which had been cut off from Woodberry township in 1846, making up the whole of the Daniel Kritler tract. Had not the whole of the Daniel Kritler warrant been taxed in its true name in Blair township where it actually lies, and the owner of it been accustomed to pay the taxes of the tract as in that township, there might be a color for the argument that the tract sold was the same tract as the Kritler tract. But the commissioners cannot thus tax the whole tract in [134] its proper name and quantity in its proper township, and tax it also in two parts in two other townships, where it does not lie. This would mislead everybody — owner,, treasurer and purchaser. Now when the tract is found assessed in its proper township for years and taxes paid for it as there, to hold that a former misnomer of the tract which had dropped out of memory for many years, would justify a sale of one half of it by that misnomer in a different township, and of the other half by the same misnomer in a third township, is monstrous. If such loose proceedings can strip a man of his property, there is no safety. This case is governed by the principles laid down in the case of The City of Philadelphia v. Miller, 13 Wright 440, reaffirmed in Lyman v. City of Philadelphia, 6 P. F. Smith 488, and also in Glass v. Gilbert, 8 Id. 266. We agree with the court below that under the circumstances of this case there was no sufficient evidence from which the jury could infer that the sale of the Daniel Kladder tract of 230 acres in Frankstown township, could carry the title of the Daniel Kritler tract of 461 acres in Blair township. The judgment is therefore affirmed.