Schall v. Miller

— 262 — The opinion of the court was delivered by Huston, J. The charge of the president of the Common Pleas, states the facts and the points on which his opinion turns, so fully and distinctly, that I prefer that this shall be given as the statement of the case, to going through the labour of again stating it. It is true, that every minute particle of testimony is not given by the judge, but the plaintiff in error is not injured by any omission. I will then proceed to notice the bills of exceptions to testimony. The plaintiff below deduced his title through a sheriff’s sale by *which the land in question was sold as the property' of Levi Blew and Michael Blew; and offered in evidence the record of a judgment at the suit of John Hughes against Levi Blew, Michael Blew, and John Adams, in which suit the execution issued on which the sale was made. This was objected to, as being a suit between other parties. Now this matter has been so often decided, that it ought to be at rest — indeed, it was not urged here. A sale by a sheriff is a well known mode of transferring title : and as the whole suit, judgment and execution from the authority of the sheriff to sell, it is settled that they must be produced: and this, and the record of thes acknowledgment of the deed in open Court, by the sheriff, are and must be evidence of the transfer of the title of the defendant in the judgment to the purchaser; or no purchaser could have any written or record evidence of title by the sheriff’s sale. It concludes nothing as to the matter trying, except that the title which was once in Levi and Michael Blew, was transferred, in due form of law, to the purchaser at that sale. The land sold was described as bounded by several persons named. The property sold was held by improvement; and several witnesses proved that it was bounded hy lands held by the persons called for as 'adjoining. The warrants and surveys of some of the adjoining lands, and the survey of one tract under seal were offered, not as showing title in the plaintiff below, but as showing the boundaries; these were objected to ; but were admitted for the purpose for which they were offered. This was also almost waived here, except as to the survey on which no warrant was shown. Now it was not necessary to show any of the warrants. It was perfectly immaterial whether the title of those people was good or bad; it was the fact that the land in question adjoined them, which was to be proved, it was perfectly immaterial whether the adjoining claimants held by good and perfect titles, or by defective titles. This matter was considered in Vickroy v. Shelly, (14 Serg. & Rawle, 372); and Lambourne v. Hartswick, (13 Serg. & Rawle, 113,) expressly — 263 — decides this matter. The deposition of Michael Blew had been taken; objections were made to parts of this, and some rejected. Of the part admitted, some were excepted to, viz. the witness had been describing the lands held by himself and Levi, before the sale, and was asked whether all these lands or what part of them was sold by the sheriff. The witness answered: “I was living on the vacant land : supposed it to be sold and moved off. I understood the judgment of John Hughes was against our improved lands, and was sold and did not reach to pay it: and also, part or the whole of Adams’s land was sold for the balance. I understood it from Levi himself. After the sale I saw James, he came there. The way I understood was, that James had bought the land. I moved off, and in two or three years, I came back; Levi was then on the land.” And again, “I was living at Muncy two *or three years after, and Levi Adams came to my house, I asked him about the land; he said John Hughes had sold the improved land, and James Blew had bought it, and part of the Adams tract too, and the mortgagee had sold the mortgage land, and so it was all gone.” The objection to this was, that the levy, inquisition, and sheriff’s deed would show this, and not parol evidence. Now, the sheriff’s deed was proved to be lost, and the levy and inquisition were afterwards given in evidence, which waived this objection. The levy, however, was very indefinite; but the inquisition, which was part of the return, specified the boundaries on the west, north, and two on the east, one of which adjoined the land in dispute, and stated the quantity as twelve hundred acres more or less. Now, where the levy is vague, it has been decided that parol evidence of what was said and understood by the defendant and others at the sale may be proved. Moore v. Buchanan, (10 Serg. & Rawle, 275,) and Schwarts v. Moore, (5 Serg. & Rawle, 275). As to what Levi told him, it was abundantly in proof that Levi continued on the land until 1824; whether as James’s tenant or not, was disputed. The defendants claimed part of the land in dispute under a deed from Levi, dated 1829. Now what a man says while he claims to be owner, or admits himself to be a tenant, and is living on the land, is evidence. In another point of view : — There had been a former trial as to part of this land, and Levi had been examined and was called by the defendants five times in this trial. When this deposition of Michael was taken, it was for the purpose, among other things, of giving an account of these transactions differing from Levi’s statement. The plaintiff knew what had been proved by Levi, and he expected would be said by him again; and the deposition was composed of all he could say; it must be put in one deposition; not possible to divide it as Levi’s evidence — 264 — was divided, and lie called in to swear as the several points arose. If the whole of Michael’s deposition had not been read at once, it must have been all admitted in an after-stage of the cause; but it all went to strengthen the plaintiff’s title in chief, and there was no error in admitting it then; or if there was at the time, as to Levi’s statements, it was made legal by the defendants’ afterwards showing that they claimed under Levi as an owner, and the claimant residing on the land at the time he made these statements to Michael. Testimony is frequently received because it is stated that it will appear to be legal and pertinent, by what must come out in the cause; and if what is stated to be the facts, which will make it legal, are proved as stated, there is no error. I have known a plaintiff after showing his own title, proceed to show that the defendant’s title was bad, before the defendant had opened his case, or given any evidence. This is wrong; and ought to be discouraged. But it was considered necessary to show the extent of James’s purchase, and how the defendants, whose land was sold, understood and admitted *it to be. It was also supposed to be necessary to prove that James continued and kept up the improvement. The declarations of the defendant whose right had been sold, and who still continued on the land, stating that all had been sold, and bought by James, were, together with the act of assembly, for obtaining possession by the purchaser at sheriff’s sale by three months notice, and proceeding as if the defendant whose land was sold, was his tenant; these declarations, I say, were evidence to go to the jury, to prove the continuance of the improvements by Levi, who acknowledged the right of James, and who was liable to be turned out by James, on three months notice. — I may refer to this subject again. The next bill of exceptions has been argued here on the principles above stated, viz.: was it evidence in the case as it stood when the evidence was offered, or was it evidence on the whole of the case as it now appears ? On the whole case, it is an important question, whether Michael lived on the land when it was sold on the execution at the suit of Hughes; at least so it was considered by the Court of Common Pleas in the charge to the jury. We never have before us the opening of the counsel, and we can only conjecture what it was, from what is proved, or offered to be proved. Some witnesses had been examined to prove that Michael Blew had removed from Schuylkill county in the fall of 1817; that is, a year before the land of Levi and Michael Blew was sold to James Blew by the sheriff. But other testimony was considered advisable,, and Jacob Seitsinger was called, who testified as follows: “I signed the receipt on this execution: the second of — 265 — November, 1817, is the date of the execution. David Philips against Michael Blew. It appears to me, that Philips had gone after Michael, but I am not certain. The execution is in the writing of Esquire Kribs.” The receipt was, that he, Seitsinger, had received Ms costs on that execution, but did not state from whom he had received them ; nor the amount received, nor when : there was no date to the receipt. The defendants then offered the execution, of' date of the 2nd of November, 1817, David Philips against Michael Blew, in evidence, having proved the handwriting of the justice who signed it. This was objected to, and rejected; and this is the fourth bill of exceptions. It sometimes occurs that a matter is offered in evidence, of which it is not possible to say what it may tend to prove, or may not tend to prove; and for the admission or rejection of which, a proceeding ought not to be reversed. The record of the suit in which it issued was not produced; there was no endorsement of a levy on it; no return to the justice on it; notMng to show or lead to a conjecture that it had been ever returned to the justice who issued it; nothing to show that Michael Blew was not found by the constable to whom it was directed; nor to show that Michael Blow did not pay Seitsinger his costs; and after turning it carefully in my *mind, I cannot say it proved, or tended to prove, any thing in this case. The next offer was of a transcript of a suit of Andrew Krommas against Levi Blew and Michael Blew, to appear on the 24th of January, 1818, before — Kribs, Esq., to answer a demand of debt, for services rendered under $100. The constable returned on oath “summons served;” the defendants not appearing (summons was only served on Levi Blew) judgment for plaintiff by default for $2 43. On the 31st of January, execution to D. C. Seitsinger, (not the one sworn above;) “Seitsinger paid debt and justice’s fees.” This is a full statement of the paper offered, except the certificate of Justice Henry Stager, that it is a full and true copy of the docket of Justice Kribs, which was left with the subscriber when Kribs went'to the legislature; this, under the hand and seal of Henry Stager, a justice of the peace. The same objection exists as to receiving this paper. If the constable had returned that Michael Blew was not to be found, there would be some colour for saying there was a presumption that he had left the county; but that a summons for two dollars was not served on two defendants, was no ground'for a presumption of his having left the county. The constable might have heen called to prove why it was not served. Besides, it has been decided by this Court, that a transcript under the hand and seal of a justice, is not evidence, except in the cases and for the purposes in which it is directed by act of assembly. — 266 — The defendants then offeree^ to show that David Bright who had purchased the land, or some of it, under a sale made on a mortgage given by old John Blew on the land sold him by Moyers, made a deed to Moses Jaques; that that deed was taken from Henry Bets by Anthony F. Miller, the plaintiff, and cancelled, and a new deed made from David Bright to William Bricker and Anthony F. Miller, dated 11th February, 1830; and to show that Anthony F. Miller claimed the land on that deed before he bought from James Blew. This parol proof was rightly rejected: because if the plaintiff bought a defective title, and afterwards bought a good title, he may recover and hold on such good title. And because there was no notice to the plaintiff to produce these deeds, without which no parol evidence of their contents could be given. After the testimony was closed, the defendants submitted certain points of law on which they requested the Court to charge the jury— “1. A warrant, survey, and patent, having been issued on Levi Blew’s improvement, no second warrant could legally issue on the same improvement and settlement right, and therefore the warrant of the plaintiff is void.” To this the Court said, — “ If Levi Blew at the time he had his southern line made in 1820, and his survey in 1825, and at the time of his sale to Crosby, was the owner of the improvement made by him, then no second warrant could legally *be granted for the land covered by the warrant given in evidence by the defendants; nor could any other warrant be legally granted on the improvement Levi Blew; and in that case the plaintiff’s warrant would be void. But if the improvement of Levi Blew was on and for four hundred acres, and on the land granted to the plaintiff by his warrant, and that improvement, and the land claimed thereby, was sold as the property of Levi Blew, by the sheriff, to James Blew, and James Blew kept up the settlement, and residence on the land, and if Levi was his tenant after the sheriff’s sale, up to the time he left the land, and put Hummel on the land for James, the warrant granted on the application of Crosby, for Levi’s improvement, and the survey thereon of fifty-two acres one hundred and twenty-nine perches, would not prevent the plaintiff from taking out a warrant on this improvement for four hundred acres claimed by the improvement; and in that case the plaintiff’s warrant would not be void. If the plaintiff could not take out his warrant on his improvement, 'how could he get his title for the land not granted by the Crosby warrant? That warrant covered the land on which Levi had resided; if this was cut off, no residence had been made on the other part; if he had no residence on the other — 267 — part, he would have been - obliged to take up the other part as vacant; that would oblige him to abandon his improvement, and his right would then take precedence only from the time he would make his application, which would be unjust, as he might thus loose his right to the land.” There was no error in this. The act of 30th of December, 1786, says, “no warrant shall issue from the land office of this state for any tract of land on which a settlement is made, unless to such person or persons, respectively, who have made the settlement, or their legal representatives, until the 10th day of April, 1789 ; and if any such warrant shall issue, otherwise than as aforesaid, it shall be deemed to have issued by surprise, and shall be of no avail in law.” Acts of assembly have passed up to this time, entitled generally, acts to extend the time for patenting lands; and in our digests the title alone is often given, but they contain a clause giving a right of pre-emption to actual settlers, to obtain warrants for their lands; and have been in force, and are in force to this time. Rights thus acquired-, and sanctioned by the legislature, are, and have for many years been considered in Courts, equal in all respects, except as against the state, and as on the same footing with what is called perfect titles : they descend and are transferred as other titles to land; are bound by judgments, and mortgages; and the title passes by judgment, execution and sheriff’s sale, and becomes absolutely vested in the purchaser at such sale, and the whole interest of the person who was defendant in the judgment and execution is transferred. The words legal representatives in the above law have always been applied to designate those to whom the property was legally conveyed, whether by operation of law or by deed. *tiien, the land in question was part of Levi’s improvement, and was sold to James, and he had not sold, or in some way lost his right, Levi had no title which would give any right to Crosby; and Crosby not being the legal representative of the improver, his warrant, survey and patent, are, in the words of the act, invalid in law. A warrant, survey and patent obtained contrary to law, do not, and never have availed in this state, if they come into collision with him who has a right; if he does not contest them, generally, a third person cannot. Though in Bixler v. Baker, (4 Binn. 213,) a stranger who sat down on land as vacant, held it against a warrant, survey and patent, obtained by fraudulent misrepresentations at the land office. The answer to the second point is as follows: “On what land the improvement by which James claims was made, is a fact for the jury to determine. The plaintiff might locate his warrant by survey, on vacant land without attaching it — 268 — to all the adjoiners called for. If the jury believe that Levi’s improvement was bounded on the south-east and north by official surveys, well marked on the ground, and that those lines were claimed to by him, before and up to the sheriff’s sale to James, as his boundary, and also by James after the purchase; and that the plaintiff’s warrant calls for the same land on which the improvement was made; and that this suit is brought to recover land which was claimed by the improvement, and on which it was made ; then the plaintiff can recover without a survey made on the ground, although there might be other vacant land on which he might locate his warrant, without interfering with any part of the land in question in this suit.” There is no exception to the answer to the third point. The answer to the fourth point is, — “ The patent for the Levi Blew improvement, and for the lands now in question having issued, and the titles from the patentees having been -recorded prior to the sale of the plaintiff’s warrant in 1835, would be notice to Mm of their existence. But whether the plaintiff acquired the title to the land in question under his warrant, depends upon whether an improvement was made on the land in question prior to the defendant’s warrant for it, and whether the plaintiff has shown.himself to be the owner of that improvement; and Avhether, on his part and those under whom he claims, such actual residence on the land as is required by law, was made and continued from time to time, as Ave have stated to you in another part of the charge.” The fifth point Avas not objected to. The sixth point is answered thus : — If James Blew did purchase the improvement land in 1818, and neither himself nor Anthony F. Miller took any steps to perfect the improvement right; and during all that time suffered Levi BleAV and those claiming under him to be in possession, and in 1825 or ’6, Levi had a survey made circumscribing the improvement lands, and excluding the land in question *and the title to that improvement was afterwards perfected under Levi’s improvement by warrant, survey and patent from the commonwealth in 1829, still excluding the land in question, the plaintiff could not now extend the boundaries of that improvement beyond the boundaries of the patent so obtained. But the question recurs, did James take steps to perfect the improvement, if he did buy it? Was Levi his tenant ? Did Levi put Hummel on the land as tenant of James ? for if Levi Avas the tenant of James, and in possession of the land under him, he could not sell the land, nor any part of it, so as to affect the right of James, unless James did assent to or acquiesce in such sale, or such throAving out part of the land, — 269 — or concealed or disclaimed his right to it. How the facts are in regard to these matters, is for the jury to decide from the evidence.” The answer to the seventh point was, Ci The Cressons claim under- an original title: by that title they had notice that the right to the land was as vacant land. (This applies to the John Schall warrant.) They were bound to know whether that land was vacant or not at the time that warrant was obtained. If James Blew had a right to the land under the sheriff’s sale of the improvement of Levi Blew, that right could not be divested by the officers of the land office granting a warrant and patent to Schall; nor would its being sold to the Cressons for a valuable consideration vary the case. This would not defeat the improvement right of James, if it was hona fide made, and he had not been guilty of negligence, whereby the Cresson’s as innocent purchasers for a valuable consideration, had been injured; beyond this, the Cressons cannot be affected by any secret agreement of which they had no notice. The Cressons would not be affected by the verbal agreement between James and his brothers, about this land, from any proof that has been given.” I have taken these together, because they were argued together before us, and because, although perhaps not identical, they are a good deal dovetailed into each other. The first question is, whether a person having a valid subsisting right by improvement, and who is disseised, or in any way loses the possession, can support an ejectment, though he has no survey of his lands ? When it is once admitted, that an improvement duly made and continued vests a right, it would seem to follow, that if the owner was disseised by force or fraud, or accident, he must have a right to recover the possession; and if a right to recover possession, he must have a right to recover the possession as he had it at the time when it was taken from him, whether by force or fraud. Land covered with timber in a wilderness is reduced to cultivation, by much toil, continued for a series of years. The law allowed the settler three hundred acres before the revolution, and four hundred acres since, if so much was vacant. On all the farms in this state there was left at first some woodland, from and the of the whole in a short time; and also *from motives of utility and convenience, as a place from whence to obtain timber and firewood. It seems strange, that it could ever have been supposed, that if you turned a settler so situated out of possession, he could recover from you only the houses and cleared land, and you should keep the whole of the uncultivated land as a premium for your iniquity in dispossessing him. The case of Elliott’s Lessee v. Bonnett, (3 Yeates, 287,) supports all the — 270 — judge said here. Croyle had set down on a tract of land on Snake Spring, in 1754, and continued until everybody fled from that country after Braddock’s defeat; he was among the first to return'after the peace in 1761. In his absence a survey had been made, including a great part of his claim, in pursuance of some order of the secretary of the land office; and this survey w.as returned into the land office. In 1762, after Croyle had returned to the land, he sent his son with the money to procure a warrant for three hundred acres. The son insisted on a warrant on three successive days, and at last was permitted or persuaded to take a warrant for one hundred acres only, to include the mouth of Snake Spring, where his father had a sugar camp, and which was not included in Croghan’s survey. Old Croyle was angry — continued in his house, and extended his improvements, and said he would complain to William Penn; but at length had a survey on the one hundred acre warrant made in 1768, of one hundred and twenty-three acres one hundred and twenty-three perches; and in 1767, applied for two hundred acres to adjoin his warranted land and his improvement, and had it surveyed. In the meantime, in 1763, George Croghan obtained a warrant of acceptance, reciting, that “ by our consent and direction, there was surveyed by John Armstrong in 1755, a tract on Snake Spring, containing three hundred and ninety acres one hundred and eleven perches, for which he hath agreed to pay ¿£15 10s. per one hundred acres, and interest from the 1st of March, 1755,” and requiring the survey to be accepted and returned to the secretary’s office, that a patent might issue. George Croghan sold to John Litle, who brought an ejectment in Cumberland county, before Bradford county was erected; this lay over till 1788. In 1774, Croyle sold to Elliott his three tracts,* the warrants, location, and improvement, which included Snake Spring, and covenanted that he would prove that his improvement was made anterior to any other claim. In 1788 the ejectment in Cumberland county was tried without any notice to Elliott, and Litle recovered the land, took possession, and conveyed to Bonnet. This ejectment was by Elliott, to recover the land to which he was entitled by virtue of Croyle’s improvement, and which was included in Croghan’s survey, which had become the property of Bonnet. Elliott recovered. Croyle nor he had any boundaries fixed or designated with certainty, and the jury were directed to designate on the draft in what *shape it should be, under the direction of the Court. The jury gave him as much as with his one hundred and twenty-three, made three hundred acres. This case, then, proves, that there may be a recovery on an improvement title, not only without a survey, but without the boundaries having been very precisely — 271 — designated. Bonnet brought another ejectment, and a decision on it is to he found in Bonnett v. Devebaugh, (3 Binn. 175,) a case well worthy the perusal of a lawyer. The other cases cited show that this doctrine in firmly settled in this state. I will also add a reference to Davis v. Kerper, (4 Binn. 161); Blair v. M'Kee, (6 Serg. & Rawle, 193,) and Burton v. Glasgo, (12 Serg. & Rawle, 149,) as stating principles applicable to this case. The phrase “took any steps to perfect the improvement,” was used by the counsel in this cause, as if it was supposed, he who bought an improvement right was bound to file an application or • take a warrant. I have shown that the legislature have not required the owner of an improvement right to take a warrant; if he continues the possession and cultivation by himself, or by a tenant, he does all the law requires. The seventh point seems to refer to the part held by the defendant under Schall’s warrant. To say-nothing of the manner of obtaining the warrant by the oath of a man who knew nothing about it; nor a survey made by moonlight including another man’s fields, the cases cited above of Bixler v. Baker, and Elliott v. Bonnet, together with those cited by counsel, show that, unless the improvement right was abandoned, this Schall warrant, survey and patent are, as against the improver, totally invalid in law. The counsel of the plaintiffs in error have complained that the Court have not answered the propositions submitted by them in the terms proposed; or if the judge did so, he added some reference to the facts of • the case which made the answer different from what a direct affirmative or denial of their proposition would have been. To settle abstract propositions is sometimes the business of a Court; but this is not often the case. The general principles which govern are seldom disputed; but the questions which arise in the Court are generally, — what are the facts ? what has been done, or not done, by the one or the other ? —and force or fraud, or laches, or any one of the infinite varieties in the transaction of human affairs, may, and very often does take a case out of a general rule, or make it an exception to the rule; and it is the duty of the judge, after stating the general proposition, to state, if the case requires it, what will prevent the rule from being applicable to the case trying; or if the facts are disputed, to tell the jury how the law will be, if facts are found to be in one way; and how if found the other way. The defendants, somehow, in stating their propositions omitted to ask how the law would be, if Levi, after the sale by the sheriff, became the tenant of James, and when he removed put Hummel in *as the tenant of James. This was too important to the right decision of the cause, to be omitted by a judge — 272 — who wished to discharge his duty to both parties. The plaintiffs in error have no cause to complain of the charge. The exact relation in which a defendant who is in possession when his land is sold, stands to the purchaser at sheriff’s sale, has not, perhaps, been in all cases settled. If the defendant has a tenant on land when it is sold, that tenant must pay all rent subsequently due to the purchaser — that is, he becomes the tenant of the purchaser — if the defendant in the judgment and execution is himself in possession at the sale, the purchaser may turn him out on three months notice, as if he were a tenant whose lease would expire at the end of three months. The purchaser may do this immediately after receiving his deed; but he may do it a year after, and if the defendant continued in possession, I do not know that he may not do it at any future time; at least any time within twenty-one years; I mean when no subsequent dealing or agreement has occurred between them. This matter has not been discussed much here, and does not arise so as to require an opinion, and I desire to be understood as not giving one on it. The majority of the Court, however, are of opinion there was error in rejecting the execution which was the subject of the fourth bill of exceptions: and for this cause alone the judgment is reversed. Judgment reversed, and venire de novo. ^Cited by Counsel, 10 Watts, 15, 150; 7 Barr, 97; 1 Harris, 467; 8 Id.