Orr v. Cunningham

The opinion of the Court was delivered by Gibson, C. J. — It is not alleged that the defendants are entitled by the Statute of Limitations; but the court charged that the time which had run between the date of the warrant and the survey for Cooper, without an intervening act in prosecution of the title by the warrantee, raised a presumption that the warrant was Cooper’s property when the survey was made for him; and that this presumption was not rebutted by the facts sworn to by Brady, the deputy-surveyor. To state those facts, is to decide the point. The warrant was issued to Nicholson, in 1793; the survey was made on it at the instance of Cooper, in 1819; and as superintendence, with payment of fees, has been deemed presumptive evidence of ownership, there was perhaps a legal presumption that Nicholson was, from the first, a trustee for Cooper. But the survey raised no presump [297] tion of a conveyance from Nicholson, granting him to have been the owner of the warrant in the first instance. In Galloway v. Ogle, (2 Binn. 463), a claim set up to a warrant and survey in the name of another, and persisted in without contradiction for 30 years, was held, in the absence of a transfer by the warrantee to any one else, to be presumptive evidence that his title was vested in the claimant by a deed since lost. In the present case, Cooper’s claim was set up in 1819, and had been persisted in at the suing out of the writ in 1839, for less than 21 years. The time necessary to raise a presumption which acts on an interest in land, has been eventually reduced to the standard of the Statute of Limitations ; and measured even by that, the time in this instance would be too short. Length of time, however, is not indispensable to the presumption of a trust; and the survey procured by Cooper at his own expense, raised a presumption, in the first instance, that he was the original owner of the warrant. But this presumption, though a legal one, and such as a jury is bound to entertain, was open to disproof; and what did Brady, the deputy-surveyor, testify in respect to it 1 He stated that this warrant and several others, were put into his hands for location, by John Barron, in the presence of Thomas Grant, who was interested in the warrants with Morris and Nicholson, but who ceased to have an interest in this particular one when they came to be divided. It was delivered to him in 1793, and remained unexecuted in his office till 1799, when he was superseded; and, though an official paper, it was not handed over to his successor. It was, with others, demanded by the sheriff of Northumberland county, in 1802; subjected to the form of a levy and sale on execution; and handed back to the witness — a proceeding which was declared by this court, on another occasion, to have been utterly void. The warrant then remained in the custody of the witness till 1819, when he sold it to Cooper, without colour of right in himself or pretence of authority from another. What then becomes of the presumption of Cooper’s ownership ? A warrant is not an article of merchandise ; neither have we market overt for it. Brady’s want of title appeared on the face of the instrument, which was notoriously an office paper; and it is a familiar principle, that the purchaser of an imperfect title must stand or fall by the case of him from whom he had it. Yet the court charged that the facts did not rebut the presumption of Cooper’s ownership. How then can the title have passed from the warrantee and those beneficially interested with him ? By abandonment, say the defendants, for forty years. A title may certainly be lost by abandonment ; but this is the first time we have heard it suggested that it may at the same time be transferred to an adverse claimant, or picked up by the first person who finds it. It falls back to the State, and, by its extinction, sometimes makes a younger, but conflicting title, good; but here there was no such conflict, for both [298] parties claim in the same right, and the point is to determine which of them is the owner of it. Where there is no race for priority of appropriation, an owner may suffer his warrant to rest unexecuted in the office of the deputy-surveyor, without prejudice, for an indefinite time; and even where there is such a race, he forfeits no more by .delay than his right to be served before his juniors. His loss of priority may doubtless cost him the land, but not his warrant; for the contest in such a case is between the owners of separate titles, neither of whom can appropriate his adversary’s title to himself. Nor can a stranger who discovers another’s unsatisfied warrant in the hands of a deputy-surveyor, assume the ownership of it, and have it surveyed for himself. How great soever the supineness of the warrantee, it can be taken advantage of only by the State or its grantee, and not by an inter-meddler. In this case the survey, being a lawful act, was not void; and it necessarily enured to the owners of the warrant. We have before us, then, the case of a warrant put into the hands of the deputy-surveyor in 1793, without further prosecution of the title till 1819 ; an unauthorized sale of the warrant, and a survey for the purchaser in that year. This is the case presented by the record; and the most dexterous manipulation of it must fail to work it into the effigy of a title in the surreptitious purchaser. The subsequent sale for taxes would have transferred the right, had not the land been redeemed. But the act of redemption is impugned on the ground that Cooper had no right to perform it; and the argument presents this dilemma: if he was not the owner, it is said, redemption by him was void, and the tax sale stands good; but if he was in fact the owner, the plaintiff has no right to recover. • The right to redeem was given exclusively to the owner of the land when it was sold, to guard the purchaser from the officiousness of strangers ; but when the purchaser himself has ratified an unauthorized act of redemption, who can be admitted to object to it 1 Certainly not the person who performed it. The party for whose protection the provision was intended, may waive the benefit of it when he thinks proper. Cooper doubtless did not consider himself a stranger, nor did he mean to redeem for the advantage of any one but himself; yet he could not assign to the act less effect than the law gave it. The decisions have gone on the letter of the statute, that a tender by one who has not an interest in the land, may be rejected; but here it was accepted. It is proper that the act of an intermeddler should not be suffered to devest a title; but where the purchaser elects to take what the law allows him, either from a friend or an antagonist of the owner, it would be a fraud in him afterwards to dispute it. Here he does not dispute it. His purchase is claimed under the very person who paid the taxes and costs into the treasury expressly to defeat it. Had there been a surplus bond, it would have been cancelled or deli [299] vered up, and the treasurer’s deed would, beyond dispute, have been avoided ; yet this effect would have been produced by the intervention of one who was neither owner nor agent, but an antagonist claimant; and there cannot be one rule where there has been a surplus bond, and another where there has been none. Why should not such a claimant be allowed to redeem for the party eventually entitled, even without the concurrence of the purchaser 1 It is not the business of the treasurer to determine between conflicting pretensions to the right; and where he has received the tender of the one claimant, what is the other to do ? He also may doubtless tender; but as the treasurer has no authority to receive, in the whole, more than the taxes and costs with the additional twenty-five per cent., it would be nugatory to go through the form of a tender that would be inevitably rejected. Lex neminem cogit ad vana seu inutilia. On the principle by which a patent enures to him who has the right, I would say that a tender by either of two adverse claimants might enure to the true owner, even without acceptance of it; but where the money is taken, and the purchase given up, there cannot be a doubt that the parties are remitted to their former rights. This principle disposes also of the claim of compensation for improvements. The defendants appear, not in the place of a purchaser at the treasurer’s sale, but as claimants of a title paramount, under one by whom the sale was annulled. If the title by the sale were still in force, they would have a right, not to compensation for improvements, but to the improvements themselves. It was a blunder in Cooper to avoid the deed instead of leaving it in force and taking an assignment of it; for had he given the transaction the form of a purchase from the treasurer’s vendee, he would have had the plaintiff’s title in addition to his own. The matter seemed at first susceptible of that construction; but all its features except the assignment, appear, on closer examination, to be decisively those of redemption. The payment of the money into the treasury, and the memorandum of tender on the list of sales, indicate the true nature of the transaction too clearly to let it pass for a purchase. The object of consulting the vendee at all, seems to have been no other than to obtain his consent to a deduction of his debt to Cooper from the redemption money. Cooper considered the treasurer’s deed so worthless, that he did not desire at first to have it delivered up; and though he afterwards insisted on it, the assignment of it operated no further than to transfer an exploded assurance. By giving the transaction that shape, he rejected the healing influence of a tax sale; and though we regret to see parties deprived of the fruit of their labour by an oversight, we dare not protect them at the sacrifice of a principle. Judgment reversed, and a venire facias de novo awarded.