Everhart v. Dolph

Opinion, Me. Justice Claek: The premises in dispute are admitted to be a part of a tract of land surveyed May 7, 1793, upon a warrant to Benjamin Heacock dated October 16, 1792, and situate on a branch of Spring brook, in the county of Luzerne, now Lackawanna, bounded on the north by lands of Thomas Starr, on the east by Isaac Bennett, on the south by Thomas Bennett, and on the west by lands of Daniel Heacock, containing 400 acres and the allowance. A patent issued September 6, 1796, to Joseph Thomas; and it is admitted that in the year 1806 the title to the whole tract became vested in Dr. David Hosack, who, sometime prior to April 27, 1863, died seised thereof. — 639 — The plaintiffs’ claim of title to the portion of the tract now in dispute is under a deed from the heirs at law of Dr. David Hosaek, deceased, dated November 21, 18G8, in which sixteen different parcels and lots of ground situate in the township of Spring Brook, etc., are conveyed to the plaintiffs; the fourth piece, which, it is alleged, contains the laud in dispute, is part of the Benjamin Heacock, and is described as being bounded on the north by the Thomas Starr, on the west by the Daniel Heacock, and on the south by lands formerly of Hosaek, previously sold to other parties, containing about 70 acres, more or less. The eastern boundary was not given, and it is the eastern boundary which is in dispute.. The plaintiffs’ claim now is to the eastern boundary of the original tract, and their claim embraces about 120 acres. It is contended that, as the northern, western and southern boundaries are given, in the absence of any calls for marks on the ground or for adjoin’ers, and of courses and distances, in the deed, the eastern boundary should be controlled by that portion of the description which designates the number of acres contained in the piece. This, as a general proposition, might perhaps be true; but the description in this deed, although containing some ambiguity, may be fairly construed to extend the boundary to the whole of the lands embraced in the writ. The description by quantity is in its nature the least certain of all the ordinary methods of description employed in deeds; it is introduced, in general, as matter of description, but it is at best the result of calculation, and, where the land is described by adjoiners, merely, it is often a mere estimate; that it was only an estimate in this instance is shown by the fact, that the land embraced in the deed is described as “about” 70 acres, “ more or less.” It is further described as a part of the Benjamin Heacock warrant, “ the northern part thereof,” and adjoining Thomas Starr. This description, as we have said, may readily be construed to cover the lands in dispute, but it is equivocal, and to some extent ambiguous; and, in view of this, it was competent to introduce parol evidence to give locality and identity to the subject matter of the conveyance. Evidence to this effect was rightly received; among other things, it was shown that the Benjamin Heacock survey had prior to this time been divided into four distinct lots, to each — 640 — of which was given its number in a plan made by the owner, and it was argued that the description was also fairly applicable to one, or part of one, of these lots; that 66 acres of the land, composing a remnant of one of these lots, had been sold to one Smithers, who claimed title thereto, and had been paying taxes thereon; and that the land in dispute had for some years been known as the Smithers lot. The construction of the deed, or of the description therein, was in the first place for the court; but the introduction of these and other facts developed the latent ambiguity in the deed, which required the introduction of other evidence to explain and apply the real subject matter of the conveyance. Bearing upon this question, the plaintiffs offered, and the court received in evidence, under exception, what purported to be an agreement under seal, dated October 27, 1863, for the sale of these lands by the Hosack heirs to Everhart and Dolph; and by the terms of that original agreement they sought to explain the deed, and to identify the extent of land which it was intended to embrace. If the execution of this contract had been shown, there can be no doubt that it was properly receivable in evidence for that purpose ; although merged in the deed, the original agreement, in execution of which the deed was made, was undoubtedly competent evidence to explain the ambiguity, and to ascertain the true boundary according to the intent of the parties: Koch v. Dunkel, 90 Pa. 264. But the alleged agreement was not signed by the Hosack heirs, nor by any of them ; it was signed by Everhart and Dolph only; and it was offered in evidence, not in behalf of the Hosack heirs, to charge Everhart and Dolph, bpt in the behalf of Everhart and Dolph themselves. The case of Flannery v. Dechert, 13 Pa. 505, is therefore not in point. Besides, the statute of frauds requires that leases or sales of lands shall be in writing, and signed “ by the parties making or creating the same,” “ or their agents thereunto authorized by writing; ” and in Tripp v. Bishop, 56 Pa. 424, and in a number of cases both before and since, it was decided that such a writing must be signed by the grantor or his lawfully authorized agent. “ It is, then, only the lessor or grantor,” says Mr. Justice Strong, in the case cited, “ who is required to sign the agreement. His contract must be in writing and signed — 641 — by him; but tlie statute requires no written evidence of the engagement of a lessee or grantee.” In such case, “ nothing remains in parol bat the agreement to pay the purchase money, and the statute does not require that to be in writing.” To the same effect is Johnston v. Cowan, 59 Pa. 275. The agreement, it is said, was found in the possession of one E. T. Emmett, a real-estate agent in the city of New York; one of the witnesses testifies that Emmett was the real-estate agent of the Hosack heirs, and that he was holding it, with other papers, for them. Wliat was the nature or extent of his authority, or whether he had any power to dispose of this land, does not appear. But, as the agreement was not signed by the grantors, or by any one for them, it was of little consequence where it was found, as the Hosack heirs were not bound by it, and it does not appear that the deed was made in pursuance of it; indeed, it would rather appear that the deed was not made in pursuance of it, as the agreement was not signed, and the description in the agreement and in the deed are different. We are of opinion, therefore, that the court erred in receiving the alleged agreement in evidence. The defendants’ title is founded upon a sale of a part of the Benjamin Heacock tract for taxes for the years 1856 and 1857 on the unseated list. The tract originally contained 400 acres and the allowance ; but for the years 1856 and 1857 Ilosaek was taxed with 276 acres only, the residue having passed into other hands. Some time prior to 1844, whilst Hosack was the owner of the tract, as we have said, it was subdivided into four equal parts or lots, numbered 13, 14, 19, and 20, as shown by a draft, a copy of which is found in the appellees’ paper hook. In 1844, one half of 19 and one half of 20, containing 100 acres and allowance, were conveyed to Abraham Turner. In April, 1854, 40 acres of the south half of 13 were deeded to Thomas Thomas ; and on August 16,1856, that part of 20 not sold to Abraham Turner was contracted to David Griffiths. Prior to the year 1856, therefore, Hosack had sold 100 acres to Turner and 40 acres to Thomas, and on August 6 of that year sold 50 acres to Griffiths. This left 210 acres and tbe allowance belonging to Hosack. In 1858, prior to the treasurer’s sale, Hosack paid lito taxes on 210 acres, and allowed 66 acres of the 276 embraced m the assessment to be sold. — 642 — The plaintiffs’ contention is that 210 acres were all that in the year 1856 or 1857 were liable to taxation as unseated land; that fire Griffiths lot was seated, and should have been assessed on the seated list, and that, having paid all that could be required of him, the sale of- the 66 acres passed no title to the purchaser. The defendants contend, however, that the Griffiths lot was not seated in 1856, although in the year 1857 it is conceded to have been on the list of seated lands, and that, Hosaek having paid taxes upon 210 acres only, the treasurer’s deed was effective to vest the title to the remaining 66 acres in Smithers, under whom they claim. This raised a question of fact for the jury. Was the Griffiths lot, at the time of the assessment for the year 1856, seated or unseated ? It is admitted that it was upon the seated list for 1857. Whether a tract of land is seated or unseated depends altogether upon the appearance it presents to the assessor at the time of the assessment. If it has been or is being improved by clearing or cultivation, or by the erection of a building upon it, or if the property shows such permanent improvements as indicate a personal responsibility for the taxes, it is the assessor’s duty to enter it upon the seated list: Stoetzel v. Jackson, 105 Pa. 562. Land may be seated as well by an intruder as by an owner, to the extent of his possession .and claim: Sheaffer v. McKabe, 2 W. 421; Jackson v. Sassaman, 29 Pa. 106. 'It is not the business of the assessor to inquire how the improver holds the property, whether by title perfect or imperfect, or no title at all: Stoetzel v. Jackson, supra. The assessor is to determine whether the land is seated or unseated from its condition and appearance, when he comes to assess the tax; if unseated, then, a subsequent occupation of it within the same year will not affect the validity of the sale: Murray v. Guilford, 8 W. 548. The sales to Turner and Thomas, and the clearing and improvements thereon, had separated the Griffiths lot from the residue of the tract. It was the subject of a separate possession and claim, and of a separate assessment, and if that lot was actually seated in 1856, although not entered upon the seated list for that year, Hosaek had but 210 acres of unseated land; and, if he paid the taxes upon all the unseated land he had, there was none to sell. But, if the Griffiths lot was not seated, then Hosaek had 276 acres of unseated land, — 643 — and bis paying taxes upon 210 acres only, subjected to sale 66 acres, and the treasurer’s deed vested the title in Smithers, who bad a right to locate his purchase upon such part of the tract of 276 acres as he ebose. The treasurer’s sale in 1868, it is admitted, was of no validity. When the taxes for which that sale was made were assessed, Hosack bad but 210 acres of unseated land, and he paid the taxes upon that amount; tben the Griffiths lot is conceded to have been seated. We bave not discussed the evidence; as the cause goes back for a re-trial, it is better tliat we should not discuss it. Tbe assignments of error bave not been considered in their order; but we have indicated in a somewhat general way tlie principles upon which, in our opinion, the case should be tried. Tbe judgment is reversed, and a venire facias de novo awarded.