Lewis v. Bradford

The opinion of the Court was delivered by Huston, J. The plaintiff in this case showed an improvement by actual settlement on the land in question, regularly transmitted, and continued from 1794 till 1817. At this time an ejectment was served at the suit of William Potts on Daniel Gilbert. By the testimony in this case, Gilbert had sold to Lewis, in 1S14, and in the assessment of that year, the land is assessed to Lewis, and Gilbert removed to another lot a few miles distant. There was a recovery against Gilbert in that suit, in 1818, but no writ of possession. In 1830, a scire facias issued against Daniel Gilbert and tenants; Gilbert had been dead many years. Some question was made, as appears by the charge of the court, whether either the ejectment or scire facias were served on the person in possession, and there is no error in the charge in this particular. If the scire facias was not served on Lewis, it would strengthen his case. The plaintiff here showed not only the above right by actual possession, continued more than twenty-one years, but also traced the title through James and William Lewis, to the plaintiff, T. H. Lewis, who, in 1838, became the purchaser of a warrant and survey from the heirs of Stewart, and the plaintiff produced in evidence that title, as follows:— June 25, 1773, warrant to Samuel Clark for three hundred acres of land, on the south side of Towanda creek, at the junction of a run with the creek, to include a tree marked A. B., that stands in the fork about four miles from the river, in the county of Northumberland. September 20, 1773, receipt of Edmund Physic to Samuel Clark, for 24 pounds 15 shillings, the purchase-money. September 20,1773, deed poll from Samuel Clark to Samuel Pleas74 ants. February 17, 1775, assignment of this to John M. Nesbit. March 15,1775,assignment to Charles Stewart. September 24,1803, survey by T. Sambourne, deputy surveyor, of three hundred and twenty-five acres, in the fork of Towanda creek, about five miles from the northeast branch of the Susquehanna, &c.,&c., with a note thereon, that it interfered with a survey made on a warrant to Amy Hooner. Accepted in surveyor general’s office, April 3, 1804. The death of Charles Stewart, in 1800, was proved, and that he left four children: 1. Martha Wilson,a widow now living; 2. Mrs. Coliman, twice married, now dead, leaving one son, F. Stranahan. 3. Mrs. Mary Wilson, now dead, leaving six children. 4. Samuel R. Stewart, now dead, leaving two children, Charles and Robert, now living. Then the plaintiff read a deed, January 25, 1824, F. Stranahan and wife to Martha Wilson; October 15, 1822, Charles S. Stewart and wife lo Martha Wilson. And offered to prove by parol, that Mrs Martha Wilson for many years has acted as agent for the other heirs, in leasing and selling the lands of the estate, and that the other heirs have acquiesced in, and confirmed her acts, &c. The court rejected this offer. A power to make a lease under three years, or to pay taxes, &c., may be proved by parol, but a power to sell, in fee, cannot be so proved. The court was right; an express recognition, and a receipt of his proportion of the purchase-money, knowing it to be the purchase-money, might be given in evidence under certain circumstances, as a receipt for price of •land on a parol sale may be. July 6, 1822, power of attorney, Martha Wilson to Jonathan Stewart, to sell lauds, &c., &c. February 23,1828, article of agreement, Jonathan Stewart, stating himself to be agent for the heirs of Charles Stewart, with the plaintiff; consideration 600 dollars. The plaintiff then showed assessment to Daniel Gilbert of thirty acres improved, two hundred and seventy woodland, and sawmill, in 1S12; and the same in 1813. In 1814, the same property is assessed, and stated to be transferred to James Lewis. The law directs the assessor to notice any transfers of possession each year. They also showed assessment of some property, together with some adjoining wildlands, to the Lewises, till the plaintiff was dispossessed, and proved that the land had been taxed and taxes paid in Luzerne county in 1809, before Bradford county was created. The defendant gave in evidence — July 20, 1784, warrant to Amy Hooner for three hundred acres of land in Nittany valley, to include the north branch of Spring creek, about three miles westward of land this day granted to Mary Hooner, in the county of Northumberland. August 10, 1786, a survey of three hundred and six acres on the south side of Towanda creek, in Luzerne county, or Northumberland, with a note, that the land which this warrant was originally intended for, is included in old surveys. It was admitted here, that it called for land at least one hundred — 75 — miles from where it was laid. There is no case in which it has been decided, that a warrant removed one hundred miles is in a worse situation than if removed one mile or ten miles. I apprehend, however, it must be surveyed within the district of the deputy surveyor to whom it was directed. On 2d January 1788, it was returned to the office of the surveyor-general. September 26, 1800, patent issued to Stacy Potts, (this was admitted except the recital of the intermediate conveyance from Amy Hooner to Stacy Potts.) January 1,T810, deed from Stacy Potts to William Potts, George Sherman, Joseph Potts and Stacy Potts, Jr. (his sons and son-in-law); consideration 600 dollars. The defendant then offered the record book from the recorder’s office of Bradford county, containing the record of a deed, March 18, 1837, from the last named grantees to defendant; and offered to read the same in evidence to the jury; this was objected to; and admitted, and formed the second bill of exceptions to the evidence, to which I shall recur after stating the defendant’s title. He also showed a record of a suit in the circuit court of the United States for the district, of Pennsylvania; the much spoken of case of Lessee of William Potts v. Daniel Gilbert, found in 3 Wash. C. C. Rep.; it was returnable at April session 1S17; the old form of ejectment, supposed a previous writ, which in fact was never issued, on which the declaration wasfounded; tested in November 1816, returnable to April 1817, and a verdict and judgment for the plaintiff, on which no further proceedings were had until a scire facias post annum et diem, .returnable to April'1832. It issued against Daniel Gilbert and tenants; judgment for want of appearance, and a plea and writ of habere facias 'possessionem issued on 4th February 1833, and returned “possession delivered.” As there was no objection to this record, it was not brought here, and we do not know on Whom it was served. The proof was that Daniel Gilbert had been dead many years, and that Elliot and Whitten were in possession as tenants of Lewis; whether it was served on them, or Lewis had any notice of it, we do not know. I have spoken of these proceedings before. I shall go back to the two points as subject of dispute, before I notice what took place after the marshal delivered possession. And the counsel of the plaintiff insisted the patent did not vest title in Potts, because no receipt for the purchase-money was produced. This reason will not support the objection; since the opening of the office after the revolutionary war, no warrant could legally issue until the purchase-money to the state was paid, and warrants and surveys have been constantly read without producing the receipt for the purchase-money. It is only where two persons contend as to their title to a warrant, or where an actual settler or other person in possession, is put in jeopardy by some person claiming under a warrant, thatdt becomes necessary for the party claiming it to show some legal or equitable right to that war — 76 — .rant. The production of a warrant is prima facie evidence that the purchase-money has been paid to the state. It may be some presumptive evidence, that it was paid by the person to whom the warrant was granted, or by him in whose name it was granted, more correctly speaking; but, as in this case, it is no evidence that the purchase-money on the warrant to Amy Hooner was paid by Stacy Potts. The presumption being that it was paid by her, Stacy Potts must show a conveyance from her, or that he himself paid the state for that warrant, or that he has a conveyance from ■her or from the person who did pay for it. The patent from the state to Stacy Potts is good for all right the state had at its date; but it is not good against Amy Hooner, unless the patentee can show a right from her; nor is it good against any person who in any way, either by warrant or settlement, had acquired a warrant or a right to a warrant before the date of that patent. See Penrose v. Griffiths, 4 Binn. 231, and the opinions of Tilghman and Yeates fully on this subject. The dissenting opinion of Brackenridge arose from losing sight of the principle, that a defendant is safe until the plaintiff show an unexceptionable title; and in Bonnet v. Devebaugh, 3 Binn. 175, and following pages, the right of Croyle was saved by his actual possession before the patent was granted to his adversary. The patent, then, was not satisfactory, but this, not because the purchase-money had not been paid to the state, but because there was no title from the person who paid it to Stacy Potts; and such seems to have been the opinion of the eourt, for the recitals were not admitted as evidence against Lewis, whose title commenced prior to the patent. The next exception was as follows; — It was admitted that the copy of a deed from the record book was evidence, but denied that the book itself, when brought into-court and read, was evidence. Our first act on the subject is that of 1715, which says, “there shall be an office of record in each county of this province, which shall be called and styled the office for recording deeds.” After directing the appointment of recorders and mode of proof or acknowledgment of deeds and the effect of recording, it provides in the fifth section, “and the copies or exemplifications of all deed,so enrolled, being examined by the recorder, and certified under the seal of the proper office, (which the recorder is hereby required to affix thereto,), shall be allowed in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law, as the original deeds themselves,” &c.,&c. This act and the construction of it, have come down to us from the early part of last century, and it would be strange, but not useful to change, and in fact destroy it by an affectation of grammatical accuracy. It was argued as if copies of the record from that book were made evidence; so they are, and must be, or the act is useless; but the words of the law are, that copies of the deeds, &c., are to be evidence. Now the record book is a copy of — 77 — the deed, or it is nothing; and a copy of the book cannot be a direct copy of the deed. Copies from the record, or the record, have always been admitted as evidence. This construction, so long acted on, I consider as fixed as the most express words could make it. The propriety of permitting a book of records of many deeds to be brought into court on all occasions, is another matter. If any party, to save expense of a copy, may have it brought into court, it may be sent out with the jury, who often sit in rooms, or may be taken to taverns at arbitration., and much danger incurred and great injury done. The recorder ought not to give his book out of his office, except on an order of the court, and if so ordered, ought to be taken there and back by himself or one to-whom he intrusts it. I have stated, that the possession was traced down from 1794 until Potts was put in by the marshal. The tract of country in which the land in question lay, was within the Connecticut purchase. By an act of assembly, passed in the session of 1794-5, to transfer a Connecticut title, was made an offence punishable by fine and penitentiary confinement. By another act of April 6, 1802, all deeds which did not recite the substance of the warrant,- or office title or patent from the late proprietary, or from the state, are made void: a penalty of 200 dollars is imposed on any judge or justice who shall take an acknowledgment of any such deed, and the office of any recorder who shall record any such deed, is forfeited. This law extended only to Wayne, Luzerne, and Lycoming counties, and was intended to prevent conveyances of Connecticut titles. By an act passed in 1800, the statute of limitations, as respected these titles, was repealed. The words of the act of 1802 included all conveyances of rights by improvement. Under these laws, a circumspection, in speaking of titles, became common in that part of the state; those who had Connecticut titles denied them, or evaded mention of them, and the phrase “ possessive right,” was then in general use. All these • acts of assembly are long since repealed, and were never known to the younger members of the profession of law; but it is proper and even necessary to recur to them in some.cases. Transfers of improvement rights were made by parol, or if by deed, the deed was concealed, could not be proved, or acknowledged, or recorded. In this case, several of the sales were perhaps by parol, payment of consideration and delivery of possession; some were by deed, and the deeds could not be proved. In the circuit court, these transfers were treated as nullities, and proof of transfers by parol, as unavailing. Evidence was offered and rejected, showing that the delay of the plaintiff, in bringing this ejectment, was occasioned by time spent in searching for these deeds, and the fact that those in possession, while the benefit of the statute of limitations was taken from them, spoke of their possessive rights, -and not claiming right of soil, was proved. The charge of the court on this part of the case was correct. — 78 — The tract in question lay in the forks of what is now called the Shrader branch and the main creek. Timothy H. Lewis lived on, and owned the land on the opposite side of the Shrader branch, and one end of the dam of the saw-mill abutted on his land on that side of the stream. Lewis was proved to have been indebted to a Mr Elliot, and had put this man in possession of the tract in question and the saw-mill, by an agreement to let him continue two years, to discharge this debt. When Potts came with the marshal to take possession, and had taken possession, Lewis threatened to cut down the end of the dam which abutted on his other land, and thus destroy the saw-mill. Elliot had leased the land in question from Potts, as soon as it was given into his possession. By his account of the matter, and through his interference, Lewis was prevailed upon to agree to give Potts the right of continuing the dam against his other land; for this grant Potts was to give him 200 dollars, which was to come out of the rent as it fell due from Elliot to Potts. Elliot says he considered the case of Lewis hopeless, and advised him to take this 200 dollars as being better than nothing, and his only chance of ever getting any thing. This deed was offered in evidence, as some proof of a relinquishment of his claim, and admitted and exception taken. There was no error in admitting it. I shall notice this again. After Elliot’s lease, which was for two years, had expired, Mix and Keeler, as agents for Potts, leased to Lewis, who lived opposite, and had undertenants on the land in question. This fact of his having taken a lease as tenant under Potts, was also relied on as evidence of relinquishment of his claim. The judge put the case principally on another point; but it may be well to notice this. In Richardson v. Stewart, in 2 Serg. & Rawle 87, 88, a similar point arose; at one previous trial Richardson had recovered against Stewart. The right of Richardson was by articles of agreement vested in Mr John Haldeman. The late Judge Walker, then at the bar, accidentally fell into company with Stewart, who had a large crop of wheat nearly ripe, (it was in June,) and corn and oats growing; he had been told that Haldiman or Richardson would take all his crop; he was in great trouble, and, on an offer by Mr Walker, that if he would give no more trouble, and would take a lease and become a tenant, he would be permitted to keep a tenant’s share of the crops in the ground, he took the lease, got the grain, arid, according to his contract, went, off at the end of the year. As Richardson was also on part of the tract, Stewart did not discontinue an ejectment he had pending for that part, and he brought a new ejectment for that which had been recovered from him. These matters were urged as barring his right; it stayed his new ejectment until he restored the possession, but it was not a release of his right; and the fact that the bargain was made with a man in trouble, who had just lost a cause before a judge of the supreme court — 79 — at a circuit court, it had no avail with the court or jury. I was his counsel, he recovered the land, and his descendants own it yet. I now come to the point on which the cause turned in the court below, and to notice the evidence given and evidence rejected, of what occurred about the time Bradford purchased. The question was, is he a bona fide purchaser, for valuable consideration, without notice? or perhaps, also, did Lewis know Bradford intended to purchase, and conceal his claim and intention to renew his suit? In judging of this, we must consider what was offered, and what it would have amounted to if proved. In very few cases, if in any case, is it necessary to prove all a party wants by one witness — if the testimony of several witnesses makes out a fact, or facts, it is enough, and as good as if proved by one. It was, to put it in proper order, offered to prove, that when he went to Mix and Keeler to purchase, Keeler, who was Potts’s agent, and leased the land in question, and collected the rents, told him of Lewis’s claim. Keeler, to be sure, did not make the contract to sell, that was done by Mix; but information of an adverse claim by the grantor, or his agent, cannot be considered too loose to be noticed. It was further offered to prove, that Keeler and Elliott (who knew something more than loose talk) told him to go to E. Mason, Esq. for information. To prove that Mason had been employed for some time in searching for testimony for Lewis, that Bradford did go to Mason, who told him Lewis was preparing to bring a suit, and if he could procure certain proof (probably the lost deeds), he would, in Mason’s' opinion, recover the property. Now if Lewis was preparing to bring an ejectment, he must have intended to go out of possession. Baldwin had gone to Lewis’s house, on an adjoining tract, and with him in a sleigh a Mr Wilson. His testimony I will give in his own words, so far as relates to this matter. “ We called at Lewis’s house; Bradford told him he came to look at the place. Lewis said he would as lief he had it as another, but he must be store and get a good title if he bought. Lewis said nothing else to him but what I have mentioned.” On being cross-examined, he said: “ Bradford did not ask for any explanation. I was not with them all the time. I think they went out together — whether to the mill, I don’t know.” First, ought the evidence of Keeler and Mason to have been received? We have not much in the English books on the subject-of actual notice, though a great deal as to constructive notice. Sugden says, generally, that loose reports are not notice; and he cites chancery cases, and gives an abstract to this purpose as full as the case itself. A person is about to purchase, and A tells him the man has no title, except in trust for another. B contradicts this, and says the man holds the land absolutely, and not in trust. He purchases, and it turns out that the information given by A was correct. Held, that he was an innocent purchaser, for he could not know which was true. But Sugden immediately adds, that he would not advise a pur — 80 — chaser to rely on this, and cites a dictum of Lord Hale: that if necessary he would consider there was notice: “there might have been a noise in the house:” meaning, I suppose, a report or talk in the family. But suppose the purchaser had only heard what A told him — would this, without contradiction, have been held no notice? I have found no English case which says so. In point of fact, this matter of purchase, without notice, is generally, perhaps always, decided in chancery according to Maddock’s Chancery Principles and Practice, vol. ii, p. 323-4. The bill states the facts from which notice of an adverse claim is inferred. It is not sufficient to plead a purchase without notice, actual or constructive; but defendant must, by a full, clear, and substantial answer, (not merely as to knowledge and belief J) as well as by averment in the plea, deny the facts from which notice is inferred — though he need not go beyond what is alleged, and rip up his whole title — and must plead that the vendor was in possession by himself or tenant. That he had no notice before the conveyance, and before the purchase-money actually paid, not merely secured to be paid. Harris v. Southcote, 1 Atkins 538; Story v. Lord Windsor, 2 Atkins 620; Hardingham v. Nichols, 3 Atkins 304; 3 P. Wms. 307; 2 Vesey, Jun. 454-8. It is still left open to the other party to contradict the denial. This often occurs on a bill for discovery, or bill for injunction; when adverse possession is alleged as notice. It is no excuse that he was only told of an adverse possession; he is bound to go and see — why when told of adverse title is he not bound to inquire? If he be told the person in possession is a tenant, he is bound to ascertain whether the tenant has any other title. See 7 Watts 276, and cases there cited. I shall not in this case undertake to state any general rule. It depends, says Chancellor Kent, 4 Kent 179, on the infinite variety of circumstances in each case. All the cases agree that notice to an agent is notice to principal; and though I do not remember a case, it is clear that notice from a vendor, or the agent of a vendor, is of equal effect; and who will say, that, when an agent or vendor is applied to, to sell lands, and the vendee is informed there is an adverse claim, and that J. S. can tell the whole nature of it, and whether ever it will be prosecuted, this is not notice? The man goes to J. S., who tells him there is a claim, and if a paper can be found that claim will take the land. I do not understand that the judge would have rejected this evidence, if it had not been for the testimony of Wilson, which, in the hearing of a tedious and perplexed case, struck him in a different light from what it does this court. It must be recollected that Keeler had sworn that the lease to Lewis was to expire in the ensuing spring, and that Lewis was bound to give up the possesssion. There was no evidence that he had ever applied to continue or renew it. In judging of the admissibility of evidence, we look at the effect of it, if given. Lewis will then be a man who intends to bring a suit, and must remove from the land to enable him to. do so. Baldwin comes and says, I am come to look at the — 81 — place. Lewis says, I would as lief you came on as another — this only adds another proof that he did not intend to continue tenant— “ but be sure to get a good title if you buy.” It struck this court as a clear intimation, at least that Baldwin ought to be careful — it would have induced any other man to inquire what was meant by this advice. If Baldwin had made any reply, or asked any question as to title, and Lewis had concealed his claim, he might have been postponed. But he was not bound to tell his claim to every man he met. He gave a distinct intimation, that, to a person proposing to purchase, care and circumspection were necessary, and that the subject was not pressed farther, was the fault of Baldwin and not of Lewis — and this is more clearly so, if Keeler, and Elliott, and Mason, or any of them, had told him of Lewis’s claim. The case of Overfield v. Christie, 7 Serg. & Rawle 173-7, had put the decision, or rather the law, as laid down in Potts v. Gilbert, clearly out of the way as to a great part of it. That case will throw light on the state of the country, and the situation of the people there, and of the laws of this state relating to that section of country. We are of opinion, the testimony offered in these two bills of exceptions, ought to have gone to the jury, and that they should have been told that unless Lewis distinctly understood Baldwin was in treaty for a purchase, he was not bound to tell of his claim; and if he did suspect an intention to purchase, that he gave a fair opening to full information, and that Lewis’s title ought not to have been treated as totally destroyed by what Wilson testified; and at all events, the truth of his testimony ought to have been left to the jury — and to enable the jury to judge fairly of it, the rejected testimony of Keeler and Mason ought to have been received. There was another bill of exceptions, as to proof of improvements made by Baldwin since he came on. It was admitted, and proof given, that the use of the property was worth double the amount expended in improvements. The whole, then, was mere waste of time in this case. It is not necessary to state, whether a person sitting by and using permanent and valuable improvements, made of value equal to or exceeding the worth of the land, may not raise an equity — certainly, in a doubtful case, they would weigh with a jury. And it is possible there may be cases in which all this would not postpone a right — but the facts of this case raise no such question. In 1 Serg. & Rawle 520-1, the assertion was, that two verdicts and judgments (before our act of 1807) in ejectment in favor of defendant and his ancestors, and seventeen years acquiescence by Kyle, were a bar in that ejectment. The common pleas answered “they are not a bar;” and certainly they are not, said this court. In Pedrick v. Searle, 5 Serg. & Rawle 236, there was a recovery by plaintiff. The defendant had been more than twenty-one years in possession; after the recovery, he took a lease for the improved — 82 — part; the plaintiff sold his right, but, on a new ejectment, the right by twenty-one years’ possession prevailed and recovered the land. The supreme court of New York, in 3 Johns. 270, say, “ a recovery is of the possession, (not of the seisin or freehold,) without prejudice to the right, as it may afterwards appear, even between the same parties. He who enters under it, in truth and in substance, can only be possessed according to his right. If he has a freehold, he is in as a freeholder; if he has a chattel interest, he is in as a termor; if he has no title, he is in as a trespasser. If he has no right to the possession, then he takes only a naked possession. 1 Burr. 614. We have a case which says, that in a case where a man has purchased without notice, and another has an equity, and sues on that equity, he must indemnify the purchaser by refunding what has been paid by him. Youst v. Martin, 3 Serg. & Rawle 423. It is admitted that this is an innovation on what was the rule in chancery before, and I think we have more than one case decided on the principle, that notice before payment of all the money, is sufficient. Alterations are not always amendments. If it should happen that Lewis recovers the land, whether ought Potts or Lewis to repay to Baldwin the sum he has paid. If the jury find notice to Baldwin, before he purchased, this point does not arise. I am at a loss to say why it was laid down in this case, that Lewis was bound to prove that he gave notice. This can only apply where the proof is that he was personally informed by Baldwin that he was about to purchase — or those only if Baldwin was ignorant of his claim. This was decided at Pittsburg, in a suit between Jack and Blair, for a house in Kittaning. To avoid future disputes, I would also refer to Rogers v. Hall, 4 Watts 359, where it is said, the receipt on a deed is not evidence of actual payment by a person claiming as a purchaser for valuable consideration. Judgment reversed, and a venire de novo awarded.