Miller v. Cresson

The opinion of the Court was delivered by Rogers, J. The defendants in error, who were plaintiffs below, gave in evidence a warrant, dated the 4th of August 1824, to John Schall, for 120 acres of land, adjoining land of John Spayd Estp and others, and Levi Blew’s improvement. A survey, dated 9th September 1824, for 195 acres 75 perches, and allowance patent, to John Schall, dated 7th April 1825, adjoining Levi Blew’s improvement. Deed from John Schall and wife to plaintiffs, dated December 1828, and recorded’ 13th January 1829, with general warrant, adjoining Levi Blew’s improvement. Release from John Dreher and wife, dated the 13th of January 1829, and recorded the same day. The warrant was founded on an application by Schall, dated the 2d of August 1824? and on an affidavit of John Kolb that the land was vacant. The warrant and survey cover the land for which the ejectment is brought. Whatever right, therefore, Schall had, is vested in the plaintiffs by the conveyances above recited. In answer to the plaintiffs’ title, the defendant gave in evidence ■a warrant dated the 25th of April 1835, to Anthony F. Miller, for 400 acres, including an improvement and actual settlement, adjoining lands of John Keller and others, interest calculated from the — 300 — 1st of April 1805. This warrant also covers the land, and although dated since the Schall warrant and survey, calls for an improvement, which began some time about the year 1804 or 1805, prior in date to the commencement of the plaintiffs’ title. The defendant further proved that three improvements had been made by John, Michael and Levi Blew, the sons of old John Blew, which include all the vacant land amounting in the whole to upwards of 800 acres, and embracing, as cannot be reasonably contested, the land in controversy. In the year 1824, the time Schall made his survey, the land was not vacant, but was appropriated by virtue of the right acquired by the improvements and settlements as above stated. Independently, therefore, of every consideration arising from the conduct of Schall and Dreher in making the survey and in procuring the affidavit of Kolb, to which it is only necessary to advert, the warrant of the 4th of August 1824, and the survey of the same year, were entirely inoperative and of no effect, unless evidence was given from which the jury would have ike right to infer that the improvement, and particularly the improvement of Levi, was abandoned, either before or subsequently to that time. For we distinctly recognise the doctrine of Cresson v. Miller, (2 Watts 276), that a warrant and survey under such circumstances is not void, although it may be avoided at the instance of the improver. Where there is a subsequent abandonment, the warrant and survey, although made on appropriated land, attaches to it, so as to validate the title of the warrantee. And of this, as we conceive, third persons cannot reasonably complain, nor is the Commonwealth injured, as they have received from the warrantee the purchase money, which is all they can reasonably require. But, conceding these principles, it becomes material to inquire whether any and what evidence was given of an abandonment, either before or after the date of the warrant and survey. And for a spark of evidence to this effect, I have searched the testimony in vain. On the contrary, the evidence- is full, clear and conclusive, that it had not the least cast of abandonment; and if the case required it, the court ought so to have instructed the jury as a matter of law. For abandonment is not in all cases a matter of fact, for it may be a conclusion of law from facts. Cluggage v. Duncan, (1 Serg. & Rawle 120); Star v. Bradford, (2 P. R. 384), At the time of the survey, Levi, who with Michael had acquired the interest of John Blew, and who claimed the land in his own right, or as the tenant of James, the purchaser at a sheriff’s sale, was living on the land, exercising acts of ownership, cultivating it and claiming it either as owner or tenant. There is not a shadow of pretence that Levi, or any person claiming under him, ever abandoned the possession, or the title obtained by virtue of the improvement. It would be an abuse of terms to call this an abandonment, for no case has been cited where this doctrine has been applied, unless there has been actual relinquishment of the posses — 301 — sion. Nay, more; a man does not lose his settlement by leaving it even, for a temporary purpose, if he retains the animo^ revertendi. M’Laughlin v. Maybury, (4 Yeates 534). The title of a settler does not depend upon the extent of his improvements, but on the animo residendi, and the possession continued. And this would seem to be the opinion of the court, and yet this question is submitted to be determined as a fact by the jury. The language is unequivocal, for the court say, “ If there was an existing possession and no abandonment of the improvement, then, in the judgment of the court, the warrant under the Acts of 1786 and 1814 (referring to the Schall warrant) would be deemed to have issued by surprise, and shall be of no avail in law. The fads we submit to you.” They then add, “ But if, on the other hand, you find James Blew had abandoned his purchase (referring to the paper called a disclaimer) and Levi limited the extent of his claim, (referring, I suppose, to the survey under the Niel Crosby warrant); that is, if you believe there was no subsisting adverse title to the land when the warrant issued, it would not be void, notwithstanding the irregularities urged by the defendant. It would not be void, for the warrant and survey would hold the land. We submit to you whether there is any evidence of abandonment prior to the year 1824.” That is, as we understand the charge, and as the jury could not avoid understanding it, they submit a fact to the jury of which there is not a particle of proof. And this, as has been repeatedly ruled, is error, and most injuriously so in a case so complicated in its details, and for this reason so difficult to make a jury comprehend. I speak irrespective of the inference which may arise from the subsequent circumscription of the boundaries, the effect of which will be noticed hereafter. After proof of the improvement and settlement, (among other testimony, which I do not mention because I feel anxious to exclude every item of it, unless directly pertinent to points discussed in the argument), the defendant gave in evidence a judgment to December term 1817, John Hughes against Levi Blew, Michael Blew and .John Ad dams. At the time this judgment was rendered, be it observed, Michael and Levi were the owners of the property, having acquired the improvement of John, one of the original settlers. A fieri facias issued to the March term 1818. There is no return of the levy on the fieri facias, but the inquisition^ states “ that the rents and profits of a messuage, tenement and tract of land containing 1200 acres, more or less, adjoining George Clauser, Jeremiah Reed, Jonathan Kerschner and others, late the estate of Levi and Michael Blew: a venditioni exponas to July term 1818, and lands sold to James Blew for $70.50.” On the 26th of October 1818, the sheriff made a deed to James Blew, describing the land as in the inquisition, and on the same day the deed was acknowledged in open court. Blew and wife, on the 27th August 1832, conveyed this property to Anthony F. Miller, the defendant. — 302 — The inquisition and sheriff’s deed describe the land with reasonable certainty, so that there is but little reason for doubt that it includes this land, embracing every part of it to which Levi and Michael had title by virtue of the improvements already mentioned. When then the survey was made on the Schall warrant, the property belonged to James Blew, and if there was nothing else in the case, this would be a very plain case in favour of the defendant. And this leads to the most material, if not the only point in the cause, that is, has James Blew made any declaration, either written or parol, by which his title is postponed in favour'of the plaintiff? or, in other words, is he or those claiming under him estopped from asserting his title ? Has he concluded himself by his act or acceptance, to say the truth, has he disclaimed to have any estate in the land demanded in the ejectment ? 3 Com. D. 487, Disclaimer ; 4 Com. D. 76, Estoppel. The principles which are applicable to these points are settled in Alexander v. Kerr, (2 Rawle 93); Crest v. Jack, (3 Watts 238); Hepburn v. M’Dowell, (17 Serg. & Rawle 383); Carr v. Wallace, (7 Watts 401), and Epley v. Witherow, (7 Watts 163). As having some bearing on this point', (and it is only in this view that the evidence was admissible), the plaintiffs gave in evidence an application dated the 4th March 1829 for 180 acres, on a warrant to Niel Crosby dated 7th March 1829, founded on an application for 180 acres, whereon an actual settlement had been made, adjoining the New York and Schuylkill Coal Company and others: interest from 1st March 1804. A survey dated the 14th May 1829 for 52 acres and 129 perches. A deed from Levi Blew to Niel Crosby dated the 26th March 1829 for 180 acres. A deed dated 12th May 1829 from Niel Crosby to Thomas S, Ridgway and John Schall for-acres. A deed dated 25th January 1830 from Thomas S. Ridgway and John Schall to the plaintiffs for three-fourths of the 52 acres 129 perches, and patent, with general warranty. A deed dated 25th January 1830 from the same to Adam Everly. And a deed dated the 23d September 1835 from Adam Everly to the plaintiffs for the one-fourth. By .these several conveyances the title to the 52 acres 129 perches is vested in the plaintiffs. The admission of this testimony, which is contained in the third and fourth bills, was opposed on the ground of irrelevancy, not including the land in dispute; and this is true, as it appears by the draft that it lies west of the land for which the ejectment is brought. It, however, includes that part of it which contains the clearing and the buildings erected by Levi Blew. It is contended, that by the deed of the 26th March 1829,all the right Levi had by virtue of the improvement, including, of course, the land in controversy, was conveyed to Niel Crosby; that by the survey afterwards had on his warrant, the boundaries were circumscribed to 52 acres 129 perches, and that consequently, the warrant to Schall attached on the land, on the principle — 303 — held in Cresson v. Miller. If the facts were as.is assumed, there would be force in the argument; but we do not perceive that Levi Blew conveys anything more than 180 acres. The conveyance is by courses and distances and adjoiners, and does not purport to convey more than a certain quantity, leaving the right to the remainder, viz. 220 acres acquired by the settlement, in himself untouched, as we apprehend on a fair construction of the deed by the conveyance. If an improver makes a settlement by which he acquires a right to 400 acres of land, (which may be bound by judgments, is subject to the law of descents and all the incidents of dower and curtesy, in the same manner as other real estate acquired either by descent or purchase), and afterwards sells a part of the tract, describing it by courses and distances and adjoiners, we cannot see how such a conveyance can devest the title to the remainder of the tract. If A obtains a title to 400 acres by settlement, and afterwards conveys to B 200 acres, which take in the buildings and the part in actual cultivation, there is nothing to prevent A from obtaining-a warrant for the remaining 200 acres, on proof of the improvement on the part conveyed to B. It cannot be, that ipso facto by such a conveyance, the remainder, which the settler has taken special care not to convey, becomes vacant, and liable to appropriation on a warrant to a third person. It would not be just to the Commonwealth, as it may be used as a means to defraud the State of interest on the. whole tract from the time of the settlement. It would be contrary to a policy long settled, which leads us to discourage all temptation to fraud. That the owner of a settlement has a right to circumscribe his boundaries is conceded; and when it is done in good faith, the residue becomes vacant and subject to appropriation in the same manner as other vacant land. But it is an entirely different question where sale is made of part only, and the vendee chooses to circumscribe it to a less quantity. It cannot affect the title of the settler to the residue: it requires some other act, manifesting an intention to abandon, before the land can be treated as vacant. Thus, in Porter v. M’Ilroy, (4 Serg. & Rawle 436), it is ruled, that taking a warrant for, and having a survey made but not returned, of a less quantity than a settler is entitled to, is not conclusive evidence of an intention to abandon the part not included ; it is a circumstance which may be explained. That is a much stronger case than the present, for here the circumscription is not by the settler, but by his vendee, to whom he sold not all, but part of the tract. In the opinion of this court, therefore, there is nothing in the deed of Levi Blew or in the limitation of the boundaries, which can enure to the benefit of the plaintiffs, independently of the parol proof and the disclaimer of the 11th May 1829. It is only in connection with that paper and the parol testimony, as has been before hinted, that the evidence contained in the third and fourth bills is at all pertinent to the issue. — 304 — And this brings us to the fifth bill, which will be considered together with the fourth error. It is impossible to read the evidence, and observe the manner the cause was conducted by counsel, and the charge, without the conviction that it was understood by all concerned in the trial as turning mainly, if not altogether, on the fact whether James Blew signed the paper of the 11th May 1829. The jury could not fail so to understand it, particularly after the charge. Without examining every part of the charge, which teems with the same idea, what were the jury to understand from this language! “But, if upon the whole evidence, you find that James Blew executed the disclaimer and abandoned the improvement, the land was open to any person who would take it up, and the right would be in the Cressons.” By the word “ executed,” the court mean “ signed the paper,” and therefore, we must read the paragraph thus: If, upon the whole evidence, you find that James Blew signed the disclaimer, and thereby abandoned the improvement, the verdict should be in favour of the plaintiff. And if we are correct in supposing this to be the tenor of the charge, it is palpably erroneous; an error for which the court is not to blame, but the parties, who appear to have been so entirely engrossed with the crimination and recrimination of each other, with the attack and defence of certain witnesses, as to have lost sight of the turning point of the case. The court have put the case on an issue only incidentally important; for gi’anting that James Blew signed the disclaimer, (and, although this may be doubted, we are to take it that he did sign it after the verdict of the jury), it does not follow, as the Judge seems to have supposed, that on this concession the plaintiffs were entitled to recover. The title depends on other principles, already noticed. The paper was but an item of testimony, having, it is true, a bearing on these questions, and for this reason alone, admissible in evidence. To understand this case, particular attention must be paid to dates. It will be remarked that the disclaimer (and I call it by that name for want of a better) is dated the 11th of May 1829; it could, therefore, as is very obvious, be no inducement to the purchaser of the Schall title on the 1st of December 1828, and on the 13th of January 1829. As regards that purchase, it cannot be pretended any person was deceived, and the only doubt is as to the title acquired by the purchase of Niel Crosby, and the subsequent conveyances by him to Schall and Ridgway, and by them to the plaintiff. Levi Blew’s deed is dated the 26th of March 1829; the deed to Schall and Ridgway the 12th of May 1829, the day after the date of the disclaimer. The allegation is, that the disclaimer is part of the title, and that Schall and Ridgway, and subsequently the plaintiffs, purchased and paid for the land on the supposition that it belonged to Levi Blew. It must be recollected that Schall sold with general warranty a defective title, of which there is reason to believe he was fully aware. It became, there — 305 — fore, desirable to purchase the improvement, and this may serve as a key, or may be used to explain some rather extraordinary features attending this transaction. t Some time before the 4th of March 1829, Niel' Crosby was in treaty with Lévi Blew for a purchase of part of the tract, viz., 180 acres, which included Levi Blew’s improvement, but which did not touch the land now in contest. The deed of the 26th of March .1829 conveys the property sold, and describes it as adjoining lands of George Clauser, Stitzel’s improvement, and others. From the description in the deed, the application and the survey, it manifestly' appears that, although it adjoins, it does not embrace the land in the Schall warrant and survey. It cannot be pretended that Niel Crosby was deceived, for the paper was signed after his purchase. The only difficulty, in his apprehension, would seem to have been, whether the improvement was made by John Bléw or by his children, John, Michael and Levi. If by the former, the property, on his death, would be equally divided among his numerous family; if by the latter, an application might be made by Levi, or by any person claiming under him. And for this purpose, whatever may have been the intention of those who obtained the paper, the defendant says the disclaimer was signed. It is in the following words: Schuylkill County, ss. . Personally appeared before me the subscriber, one of the justices of the peace in and for said county, Jerusha Blew, widow of John Blew, deceased, James Blew and Andrew Blew, who being first duly sworn according to law, did depose and say; John Blew, deceased, in his lifetime, hath no claim or any other kind of right to Levi Blew’s improvement, or any other of the children of said deceased, except Levi Blew himself. It is the same tract of land situate in Norwegian township, Schuylkill county, now occupied by John Miller; adjoining lands of the York Company, land of Michael Hollenbach, and. the land of John C. Offer man, and others; containing 186 acres. Sworn and subscribed before me, this 11th day of May 1829. George Reber. her Jerusha + Blew, mark James Blew, ' his Andrew + Blew. ■ mark . Andrew Blew, the last signer, sworn and subscribed before me, this 11th day of May 1829. George Medler, Justice of the Peace of Schuylkill county aforesaid. This paper, by whatever name designated, to which the signers were sworn before a justice of the peace, a most singular and unusual procedure, is curiously obscure, (whether made designedly — 306 — so, we will riot pretend to say). Strictly construed, however, it amounts to nothing more than an assertion by the signers that neither John Blew, nor any of his children, except Levi, had any interest in the land described in it, in the lifetime of John Blew. And this tallies with the testimony of Levi, James and Michael Blew, who say that the object of Niel Crosby was to get them to sign a paper that they did not own the land as heirs of their father John Blew. And this would be most likely if James, as he protests, always asserted a right to the land by virtue of the purchase at the sheriff’s sale. It would, in fact, be in furtherance of his title, as he would be thereby entitled to the whole, instead of part of the land. Niel Crosby, however, says that the intention of obtaining the paper was for the purpose of enabling the witness to get his money from Schall and Ridgway, to whom, as it would seem, he had sold the land, for the same price, be it observed, he had agreed to give Levi Blew. After it was procured, he (the witness) took the paper to Orwigsburg, and gave it to Schall and Ridgway, and at the same time received his money. Adopting this version of the affair, it becomes very material to inquire what land Crosby purchased from Levi Blew, the title to which Schall and Ridgway wished to be assured of by a declaration under oath that it was the property of Levi, and was not claimed by James and the other children as the heirs of old John Blew. And about. the identity of the land there is no difficulty, whether w7e refer to the deed of Levi Blew to Crosby, or the description contained in the disclaimer itself. Both refer to property containing in_ quantity 180 acres, bounded by OJferman, Hollenbach and others, and which by the draft, it appears, adjoins but does not include this land. If Schall and Ridgway, or the Cressons, who have succeeded to their right, get all Crosby purchased from Levi Blew, in what respect are they injured ? They surely cannot, with any show of justice, complain that they are not permitted, by a forced inference and construction of a paper at least ambiguous, to acquire a title to land which they never purchased, and for which they never paid. The limitation of their right afterwards cannot extend their claim, for, if entitled at all, it is at the time of their purchase from Crosby. And this consequence would follow even if the paper was held to be a deed, grant or contract for the sale of land by James Blew himself, for it cannot be extended beyond the subject-matter of the grant. Much less can the declaration of James be extended further than as a disclaimer as to any title to the land which his brother was about to convey to Crosby, viz., 180 acres. It is not a legal disclaimer, or legal estoppel, nor is it a contract binding on him, as it is very certain he never received a single cent as consideration. James Blew cannot be concluded from saying the truth, unless it is clearly shown that to permit him to do so would operate as a fraud upon some third person, who has been induced, on the faith of his act — 307 — or declaration, to purchase the land, or to expend money upon it. The sheriff’s title was a record, of which of course all persons—■ Ridgway, Schall and the Cressons among others—had notice; and having notice, the only question-is, whether Schall, Ridgway and the Cressons, acting with ordinary diligence and prudence, were deceived by any act or declaration of James Blew. We cannot say that the court was wrong in admitting the testimony contained in the 3d, 4th and 5th bills, in connection with each other, because they have a bearing as introductory to the principal point in the cause, as before indicated. We are, however, of the opinion that they erred in giving an effect to the paper to which it is by no means entitled. It will be observed that I have carefully avoided noticing any of the facts but such as-have a direct bearing on the points raised in this eourt. Having taken a general view of the cause, I will now notice some other exceptions to testimony. We think the court was right, on the authority of Kerns v. Swope, (2 Watts 75); Cresson v. Miller, (2 Watts 273); and Epley v. Witkerow, (7 Watts 163), in refusing to admit the testimony of Jacob Seitzinger. But we are of opinion that there was error in admitting the title of John Blew, because it was irrelevant, and therefore incompetent. Neither party claim under John Blew, as it is conceded on all sides that the settlement was made by John, Michael and Levi. It is a matter of some consequence, that, in a case so complicated, care should be taken to exclude all irrelevant matter. The exception taken in the 6th bill has not been pressed, nor can it be with the least prospect of success. Judgment reversed, and a venire de novo awarded.