Irish v. Scovil

Tilghman G. J. The deed from R. Scovil, the plaintiff below, to John Brown, which was offered in evidence by the defendants, and rejected by the Court, contained a conveyance not only of the land in dispute, which lies within the township of Claveracke, (one of the seventeen townships) and had been submitted according to the provision of the act of 4<th April 1799, commonly called the compensation act, but also of other land lying out of the seventeen townships to which no title was derived from the Commonwealth, or from the late proprietaries of Pennsylvania, before the 4th of July 1776. There was no evidence of the execution of this deed, except the acknowledgment of the grantor before a justice of the peace of Luzerne county, so that the question is whether the acknowledgment is valid. In order to come to a true understanding'of the apt on which this case turns, it will be proper to state briefly the occasion of making it. The peace of the Commonwealth had been long disturbed by the conduct of a number of persons, who seated themselves on lands in the north eastern parts of the state, under a title not derived from the Commonwealth, or the late proprietaries of Pennsylvania. Various laws had been from time to time made to remedy this evil without success. While the legislature wished to secure the rights of those who derived title under the Commonwealth, it appears to have been their anxious desire to shew as much lenity as possible to a body of men, many of whom might have been deceived as to their own title, and many of whom (or their fathers) had shed their blood in defence of the country in the war of the revolution. In order to effect both these objects, the compensation act was passed, holding out inducements to the Pennsylvania claimants to relinquish their titles. to the Commonwealth, and to the Connecticut settlers to purchase from the Commonwealth, the lands thus relinquished. The description of settlers intended to be favoured was confined to the seventeen townships, which had been in great part occupied, while the legal controversy between the states of Pennsylvania and Connecticut was yet undecided. The act which we are now more particularly [57] to consider, bears date the 6th of April 1802, and its manifest object appears to have been to continue the kindness which had been extended to the seventeen townships, but to cut up by the roots the title of Connecticut in all other parts. By the first section, no conveyance to be made of any land in the counties of Luzerne, Lycoming, and Wayne, shall be effectual to pass any estate or right legal or equitable, Unless the title to the land in such conveyance mentioned is derived from the state, or the late proprietaries thereof before the 4th of July 1776, and unless such conveyance shall expressly refer to and recite.the substance of the warrant, survey, patent or title, under which the same is deriyed; and if any judge or justice shall take an acknowledgment or proof of, or any recorder shall record, any deed which shall not have been derived as aforesaid, he shall forfeit for every offence 200 dollars; and such acknowledgment and recording shall be void and of no effect, and such recorder shall forfeit his office. The second section prohibits any person interested in the Connecticut title to sit as a judge or serve as a juryman in any cause, civil or criminal, in which that title may be brought into question, and prohibits all sheriffs to summon any person interested in the said title, as a juryman, &c. But the third section provides that “ none of the penalties or disabilities created by the said “act, except so far as relates to judges, sheriffs or jurors, “ shall relate to land or the claimants of land within the se- “ venteen townships of Luzerne county, or any of them, so “ far as concerns any act of theirs concerning lands within “ the said townships, which have been or may hereafter be “ duly submitted according to law, under the provisions of “an act of assembly passed on the 4th of"April, 1799, &c.” The operation of the third section is this. The restriction in the first section, with respect to the conveyance of titles not derived from the Commonwealth, has no effect on lands ivithin the seventeen townships, which have been or may be submitted under the compensation act, but the prohibition in the second section to sit as a judge or serve as a juryman, or to return as jurymen, &c. remains in full force even as to persons within the seventeen towns. There can be no doubt then that the conveyance, of that part of the land in dispute, which lies within the seventeen townships^ if it had [58] not been connected with other prohibited land, would have been effectual, and the deed of conveyance might have been legally acknowledged and recorded. Neither have I any doubt but that the estate of the grantor in the land within the seventeen townships, passed by the deed in question, although other prohibited lands are contained in the same deed. That the land within the seventeen townships should pass, is agreeable to the third section, and not at variance with any part of the act. But what shall we say to the acknowledgment of this deed? The acknowledgment is a step preparatory to recording. If it may be acknowledged, so may it be recorded. But it can neither be acknowledged nor recorded in fart. They are acts indivisible, and must be good or bad in toto. It is no answer to say that the recording may be good so far as respects the lands in the seventeen towns, and void as to the residue. One object of the law was to prevent the entry in the record books of any writing purporting to be a conveyance of prohibited lands; and this object may be completely frustrated, if such conveyances may be placed on record, by joining in the same deed a conveyance of other lands. Where prohibited lands are inserted in a conveyance, the act declares the acknowledgment to be void; how then can we say that it is in any respect good? If it be said, that this is a hardship, it must be acknowledged to be brought on by the negligence of the grantee, who ought not to have accepted of such a conveyance. It was very much my wish to have supported this acknowledgment, if it could have been done without violating the act of assembly; because the costs in this action are enormous, and the deed may be given in evidence when the cause comes to be tried again in a new ejectment, by producing the subscribing witnesses. But I am constrained tó consider the acknowledgment as altogether void, and that being the only evidence offered of the execution of the deed, the Court of Common Pleas were right in rejecting it. The plaintiff in error has brought forward another exception, that the judgment is erroneous, because the statement of the plaintiff’s claim makes no mention of Samuel Need-ham, one of the defendants. But it does not appear to me that there is much weight in this exception. The act of as [59] sembly directs that the plaintiff shall file a statement of his claim, on or before the first day of ,the term to which the action was brought. It was done’in this case before the term, and done properly, for at that time there was no defendant but Irish. But it is also directed by law, that if there are any other persons found in possession, the sheriff shall summon them, and they shall be also made defendants. ' Needham was found on the land, summoned by the sheriff, and entered as one of the defendants. He appeared by his attorney and joined the other defendant in the plea of not guilty. The act has been literally complied with by the statement which was filed. Whether more was necessary, I will not say, because from what appears on the record, the Court of Common Pleas would have been authorized to permit an amendment of the statement by iris erting Needham's 'name in it at any time, even after verdict and judgment; and if so, this Court may consider such amendment as having been made. My opinion therefore is that the judgment should be affirmed. Ye ates J. was absent in consequence of sickness. Brackenridge J. concurred with the Chief Justice. Judgment affirmed.