Penn v. Preston

The opinion of the court was delivered by- Tod, J. — The court below, decided rightly, Í think, that the words, “intended to be recorded,” imply a covenant on the part of the grantors, to procure the letter of attorney to be recorded in a reasonable time. But was the recording in the office at Philadelphia sufficient? I think not, unless there was in the city or county of Philadelphia, real estate of the grantors to be affected by the power. Leazure v. Hillegas, 7 Serg. & Rawle, 313, and M'Keen v. Delancy, 5 Cra. 22, shpw, that a copy of a deed is evidence, when taken from the recorder’s office of the county in which only a part of the land lies that is comprehended in the deed. . But there was-not shown to be any real estate in Philadelphia subject to the power;, and, the existence of such estate, was not a fact of which there could be any sufficient legal notoriety, without some proof. The court below was clearly right throughout this first head. 2. But I think that the second allegation of er-ror is sustained, and that Preston, for all the trespasses committed on his land, might well recover without producing any paper title whatsoever. He had been for twenty-five years in full possession. But all this length [19] •of time was not wanted. Possession itself, is a title against a wrongdoer. I refer to the cases cited in the argument. See also 6 Com. Dig. Trespass, B. 2. Intruder on. the king’s possession may have trespass. In Weidman v. Kohr, 13 Serg. & Rawle, 22, Duncan, J., lays down the short conclusion of the law on this subject, “That where a plaintiff is in actual possession, the defendant cannot give a title in a third person in evidence. He may justify, by command of the owner, but such command is traversable.” In this case, beyond a question, the possession was such as to comprehend the timber, though not enclosed. I hold, that there is no usage of the country, nor rule of the common law, nor any reason requiring a man to enclose his timber land; and, that for any possible purpose that can be named, the woods belonging to a farm are as well protected by the law without a fencers with one. No doubt, there must be frequent cases, in which the production of title is necessary to show the extent of possession. -But here there seems no pretence from the evidence, to say, that the boundaries of the Equinunk manor were unknown or doubtful. Besides, William Lebar, the ■principal defendant in the five suits, had been placed'on the land by Preston himself, after he had purchased from the Penns. ' Clearly then, as to Lebar, np title could be wanted to support ejectment by a landlord against his tenant. But whether the landlord could remover in trespass, while Lebar was in the actual legal possession, is ■another matter. S. The defect in Preston’s title, arising from the description in the deed of William Penn, as eldest son, and heir at law. I think this assignment of error is also sustained. Certainly the terms, eldest son, and heir at law, might imply that he was not the only child. Some explanation of the meaning could, perhaps, easily have been given' -in the recitad;-for I believe, that during forty years past and more, the general practice has been, in proprietary, deeds, to describe one or another of the grantors in the same language, as eldest son, and heir at law. We have all witnessed numerous objections to the form and substance of deeds. This objection is, perhaps, made for the first time in the present case. It is not even alleged, that there •is any real difficulty of title. Preston has-been in possession twenty-five or thirty-years, and has never .heard of any claimant in opposition to William or Richard Penn. It would appear exceedingly hard to permit him to withhold the purchase money on account of a supposed flaw in the wording of a deed which he accepted and held for a long time without any objection. ' As to the fourth assignment of error, it is not easy to discover any just and legal principle, upon which the damages sustained •could be made to amount to the sum total of the purchase money of the land, even supposing all the points of defence to have been made out. A small expense; and any. reasonable- diligence, would have enabled Preston to -obtain the original letter of attorney, of an authenticated copy, with evidence to sustain it, or proof of the- con [20] tents, if the instrument itself had been lost. And of the timber left on the tract by Preston’s saw mill, suppose one hundred, or two hundred, or even five hundred trees had been gleaned by Lebar and others, in the capacity of trespassers instead of tenants, and that no redress could be had by law for these outrages, solely for want .of recording the power of attorney, yet, it would seem most unreasonable, that the whole manor should-go to the.defendant and his heirs for ever, to indemnify against a temporary loss of some of the products. Probably, the tenants have paid more attention to their own interest than- to the interest of their landlord. Mr. Preston knew when he purchased, as well, as he does now, that land at the outlet of the Equinunk',, must, continue subject to the little annoyances of rafts and raftsmen; and, that the fences must suffer by .high water, or otherwise. He ought also to have known,, and probably did know, that' law suits neglected, will produce costs and vexation about as readily as. a meadow neglected will produce saplings; and, that there must be many losses which the vendor of land can never be justly made to pay for. Judgment reversed, and a venire facias de novo awarded.