Mitchell v. Bratton

The opinion of the Court was delivered by Kennedy, J. Upon a careful examination of the errors assigned in this case, we are of opinion that none of them have been sustained, excepting the fourth, which is an exception to the instruction given by the court to the jury in the conclusion of their charge. The instruction thus excepted to is in these words: “ If, on the whole, the jury believe that Bratton was residing on the Frederick Lazarus tract before 1820, it was a seated tract, and could not be sold for taxes. And if you find there was such residence, your verdict should be for the defendants, notwithstanding you may believe Bratton claimed to the lines of the M’Donald survey, and no further.” From the evidence as stated by the court in their charge to the ju.ry, Bratton, “ Young Sailor Billy,” as he was called, had a house built on the Lazarus tract of land, and moved into it with his family in the year 1819, under James M’Donald, who, as it appeared on the trial, had obtained a warrant from the Land Office on the 28th of May 1817, for 30 acres, in pursuance of' which he had a survey made by the deputy-surveyor in the month of July following, containing 36 acres, lying wholly within the lines of the Lazarus tract, which contained 390 acres and 154 perches, according to a survej7 made thereof and returned as early as May 1794, in pursuance of a warrant granted to F. Lazarus on the 26th of November 1793, for 400 acres. M’Donald never had his survey returned; but Bratton’s residence and improvement were testified to have been made, according to the charge of the court, within the limits of it. The plaintiff claimed the land under the Lazarus warrant and survey, and a sale made thereof in 1822, as unseated land, for taxes assessed and remaining unpaid on it, for the years 1820 and 1821. The defendants claimed that, by reason of the settlement and improvements of Bratton, the whole of the Lazarus survey became seated, notwithstanding he had confined his possession and claim to that part of it situated within the lines of the M’Donald survey; and that Bratton’s settlement, being made prior to and continued during the years for which the taxes had been assessed and the sale was made, the sale was therefore void, and could not entitle the plaintiff to recover: and to this effect the court below would seem to have instructed the jury. In this, however, we think that the court erred: 1. Because it could not be so in point of fact, that the whole of the Lazarus survey had thereby become seated; and, 2. Because there is no reason, founded either in justice or on any principle of public policy, why a person [454] under such circumstances should not be permitted to limit the extent of his possession, and set bounds to his claim. That he should be allowed to do so, can work no injury to the real owner of the land, nor yet to the public, as regards the assessment and collection of taxes. On the contrary, it may be said to be advantageous to both, as it is calculated to relieve the owner from the payment of taxes for that portion of the tract which the intruder takes possession of, and at the same time it enables the public to collect the taxes assessed thereon from the settler, with more facility and in less time than could be done if it remained still unseated, without interposing any additional obstacles to the assessment and collection of taxes on the residue of the survey or tract as unseated. And beside, the settlement and improvement of wild land, in general, enhances the value of it, and thus tends to promote the interest of the owner, as also that of the public. In order to illustrate the subject further, let us take the case of two interfering surveys, made under warrants of different dates, for different owners, where the owner of the junior warrant and survey settles with his family upon that part of his survey which interferes with the prior survey under the senior warrant, and remains there improving and claiming only to the extent of his own survey, without returning any portion of his claim to the assessors, or being assessed with taxes on account of it, and during the same time the whole of the land, embraced within the elder survey is assessed with taxes as unseated, and sold afterwards as such by virtue of a warrant from the commissioners of the county for the non-payment thereof; could it with any propriety whatever, or the least show of reason, be said that that part of it with with which the junior survey did not interfere, was seated land, and therefore not liable to be sold ? It seems to me clear that it could not, because it would be wholly repugnant to everything that was either done or intended by the owner of the junior warrant and survey in making his settlement and improvements. In short, it would be directly repugnant to the truth of the case, which is generally the true and only safe foundation and guide in the administration of justice. This doctrine was laid down and established in Campbell v. Wilson, (1 Watts 504). The party there, it is true, who settled on the land which had been appropriated previously, beside having the extent of his claim and possession designated by a survey and marks on the ground under a warrant granted to him by the Commonwealth, returned the same to the assessors, and paid the taxes assessed thereon; but that, was not considered as essential in order to prevent the residue of the tract, previously appropriated, from becoming seated land; it was merely regarded as additional and corroborative evidence of the intention of the settler to make the land circumscribed by his survey the utmost extent of his possession and claim. And accordingly, in the late case of Harper v. M’Keehan, (3 Watts & Serg. 238), where [455] a man of the name of Hamaker took possession of 94 acres 137 perches under a deed of conveyance from a Mary Ramsay, who does not appear to have had any right thereto whatever, describing the same by courses and distances, which were shown to be a part of a tract of land containing 437 acres 72 perches, surveyed many years before under a warrant granted by the Commonwealth to John Logue, but Hamaker does not appear to have ever made a return of the 94 acres 137 perches to the assessors, or to have been assessed with or paid taxes, for the same; it was ruled that Hamaker’s possession being limited by the courses and distances mentioned in his deed, did not give .the character of seated land to the residue of the Logue survey, and that the residue was therefore still liable to be sold for taxes assessed on it as unseated land, if not paid. It may therefore be taken as settled, that whenever a person enters and takes possession of unseated land belonging to another, either with or without colour of title, and has the full extent of what he means to take possession of set out and designated by lines marked on the ground, so that the same may be known and ascertained with certainty, and-confines himself accordingly in making his improvements thereon within such lines, his possession shall not be taken or deemed to extend beyond his lines, so as to give' the character of seated land to that which lies without. But if he enters generally, and continues to occupy and improve the land, after his entry, without designating or limiting his possession or claim by metes or bounds or lines made on the ground, his entry and possession will be considered as giving the character of seated land, for the purposes of taxation, to all lying within the bounds of the tract or survey, as previously designated, into which he has entered. Judgment reversed, and a venire de novo awarded.