author: Chief Justice Agnew

text:
    Coxe et al. versus Deringer et al.

    1. Where a commissioners’ deed dated June 5th 1827 made in pursuance of a sale of land for taxes, recited the performance of the directions of the Act of 29th of March 1824, and the sale had never been impeached by the county, and the purchaser had paid taxes upon the tract for forty years after the sale, but had not taken actual possession, it was for the jury to determine whether the requirements of the Act had been complied with. A party claiming under a commissioners’ deed is not required to prove the pre-requisites of the sale positively under all circumstances. Natural presumptions arising from already proved facts which lead to a belief that the directions of the law-have been fulfilled, must be submitted to a jury in this as in other cases.
    2. A treasurer’s deed to commissioners, reciting a sale for taxes, is the best evidence of the fact of the sale, and it cannot be avoided by anything less than clear and strong evidence that no sale was made, and therefore where defendants in ejectment offered a treasurer’s deed, dated November 25th 1828, the fact that there was no entry of the sale in the treasurer’s sale book for 1828, and that the treasurer, on the 4th of February 1829, wrote a letter to plaintiffs’ ancestor, which made no mention of the sale to the commissioners in 1828, and that afterwards he received the taxes for 1828 and 1829'of plaintiffs’ ancestor, and said nothing of the sale in 1828, are not sufficient evidence to invalidate the deed-or overturn the fact of the sale.
    3. The tax receipts of plaintiffs having been destroyed several witnesses testified that they had seen the receipts; that they covered the period from 1826 to 1868, with a lapse from' 1844 to 1848; that they were continuous and complete, in biennial periods, were regular in form, character and time of payment, and recited the names, quantity and locality of the tracts of land: Iield, upon the question of the validity of a treasurer’s deed for these lands sold for the unpaid taxes for the years 1832 and 1833, that this evidence was properly submitted to the jury, to determine whether the taxes assessed upon these lands for 1832 and 1833 had been paid before the sale.
    4. McReynolds v. Longenberger, 7 P. F. Smith 13, discussed and distinguished.
    June 2d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodavard, JJ. Williams, J., absent.
    Error to tbe Court of Common Pleas of Luzerne county: Of January Term 1876, No. 55. Certified from Eastern District.
    This Avas an ejectment for a tract of land in Sugarloaf toAvnship, Luzerne county, in the warrantee name of Samuel Rope, containing about four hundred a'cres, brought by Theophilus T. Deringer and others, the heirs and legal representatives of Henry Deringer, deceased, against Charles S. Coxe and others.
    The action was brought in May 1872, and was heard by this court in March 1875, upon a former Avrit of error taken by the defendants below to a judgment in favor of the plaintiffs, which judgment was reversed May 10th 1875 (see 28 P. F. Smith 271).
    The case Avas tried the second time before Harding, P. J., and on the 6th of November 1875 a verdict again rendered for the plaintiffs.
    On the second trial the plaintiffs claimed under a tax title of which evidence was given as follows :—

      Survey, October 4th 1793, on warrant to Samuel Rope, dated June 13th 1793, containing 372J acres and allowance.

      Commissioners’ Unseated Land Book for 1819.
    Sugarloaf — 372 acres, Samuel Rope — Val. 372 — Tax 1.86, “new.” For 1818. 372 acres — Samuel Rope — Val. 372 — Tax 1.86. Assessment Books for 1818 and 1819.' — Sugarloaf.
    1818— Rope Samuel 372 acres, no valuation or tax.
    1819- —Rope Samuel 372 acres — Val. 372 — Tax 1.86.

      Treasurer's Sales Book for 1820. — Sugarloaf.
    Acres. Warrantee Name. Years. Co’y tax. Costs. Total. Purchaser.
    372 Rope Samuel 1818 1.86 Nov. 8,
    1819 1.86 2.62-t 6.341 Commissioners.
    Deed, Dec. 2d 1820, of Geo. M. Hollenback, treasurer of Luzerne county, to commissioners of Luzerne county, for Rope, Samuel, Sugarloaf, containing 372 acres. Sold for taxes of 1818 and 1819. Commisswners’ Sales Boole of 1826. — Sugarloaf Toionship.

    Acres. Warrantee Name. Time of Sale. Remarks. Amount.
    372 Rope Samuel 1820 Amount of sale, $6.59§
    5 years’ interest, 1.97J
    Co. tax 1820-21 Rd. tax ’19, ’20, 7.44
    3 years’ int. on do. 1.33J
    Co. tax ’22, ’23,
    Rd. tax ’21, ’22, 7.44
    1 year’s int. on do. 44J
    Co. tax ’24, ’25,
    Rd. tax ’23, ’24, 7.44
    Advertising, 12 J
    32.79J
    July 8th 1826, sold to Henry Deringer and T. Auchternecht, for....... 32.79J
    John Ewing, Cryer, Deed and Cryer, . . 1.25
    34.04§

      Commissioners' Land Booh — For Lands bought at Treasurers Sales of 1826.

      Sugarloaf.

    Taxes added.
    Acres. Warrantee Name. Amount of Sale. County Tax. Road Tax.
    372 Rope Samuel 6.59J 1819 1.86
    1820 1.86 1.86
    1821 1.86 1.86
    1822 1.86 1.86
    1823 1.86 1.86
    1824 1.86 ' 1.86
    1825 1.86

      1827
    Deed, June 5th. Henry Deringer; consideration $34.04J; Road Tax, $11.16.
    Plaintiffs’ counsel then offered deed dated June 5th 1827, of Deodat Smith, Arnold Colt and John Bittenbender, commissioners of Luzerne county, to Henry Deringer, for Rope Samuel, 372 acres, reciting public sale of 8th July Í826 ; consideration $34.04|.
    .. Acknorvledged before one of the judges ■ of the Court of Common Pleas in and for said county. 9th June 1827, receipt of treasurer attached for bid, &c., $34.04J.
    Defendants’ counsel objected to the introduction of this deed, for the reason that no compliance had been shown with the provisions of the Act of 29th of March 1824, requiring advertisement and public notice. The court overruled the exceptions and admitted the deed, and sealed a bill of exception for defendants.
    Plaintiffs here rested.
    Defendants’ counsel then asked for a nonsuit on the grounds that a compliance with the requirements of the statute had not been shown in the sale by the commissioners in 1826 ; and also because the receipt of the treasurer annexed to the commissioners’ deed,' dated 9th June 1827, shoAvs that the money was not paid until four days after the deed was made.
    The court ruled, that unless further testimony be produced by plaintiffs tending to raise a presumption of law or of fact that the preliminary requirements of the Act of 1824 were complied with, the motion for a nonsuit would be granted.
    Plaintiffs’ counsel under this ruling re-opened their case and made the following offer in Avriting:—
    “ Plaintiffs offer to shoAV from the records of the treasurer’s and commissioners’ office that at the time the Samuel Rope tract was sold by the treasurer to the commissioners in November 1820, four other tracts were sold on the same day, in the names of John Brady, Joseph Brown, John McGoAvan and Job Rope, and at the sale of the commissioners, July 8th 1826, they sold these four tracts with the Samuel Rope tract to Henry Deringer. That Henry Deringer, after his purchase from the commissioners in 1826, paid the taxes on these several tracts Avhich belong to the same body, and lie contiguous and near to each other, year by year to the treasurer until his death in 1868, with the exception of four years from 1844 to 1848; that Henry Deringer resided in Philadelphia ; that he kept his receipts for the payment of taxes on these several tracts of land all together in a place where he was accustomed to keep his valuable papers in his dwelling-house; that after his death, by inadvertence these receipts with other papers "were destroyed; to be followed by proof of witnesses who saAV the receipts for these lands, that they were receipts for the payment of taxes on these five tracts of land from 1826 to 1844.

      “ Defendants objected to the introduction of any evidence of payment of taxes upon the tract in controversy, if offered for the purpose of raising any presumption either of law or fact, that the preliminary requirements of the Act of 1824 were complied with by the commissioners who sold to Henry Deringer in 1826. Defendants also objected to the evidence of the sale of or payment of taxes upon any other tracts of land than the one in controversy.” Objections overruled, evidence admitted and bill sealed;
    Plaintiffs then offered:—

      Assessment Boohs, Sugarloaf Township.

    1818— Joseph Brown, 400 acres.
    1819— Joseph Brown, 400 acres, Tax, $2.00.

      County Bates and Levies — Sugarloaf—“Additions,’.’ p. 90.
    1818— Brown Joseph, 400 acres,' Value $400, Tax $2.00.

      Commissioners’ List to Treasurer — p. 45.
    1819— Brown Joseph, 400 acres, value $400 — tax $2.00 — under
    head of owners — “John Stoddart.”

      Treasurer’s Sales Booh for 1820.
    Co. Tax. Costs. Total. Purchaser.
    400 acres, Brown Joseph, 1818 2.00 Nov. 8.
    1819 2.00 2.621 6.621 Commissioners.
    Deeded.

      Commissioners’ Land Book — Purchases at Sale of 1820 — Sugarloaf. 400 acres, Brown Joseph, Amount of sale, $6,871
    5th June 1827, Henry Deringer — Consideration $34.00.

      Commissioners’ Sales Booh — Sugarloaf.
    400 acres, Brown, Joseph.
    8th July 1826, sold to Henry Deringer and F. Auchternecht.
    Deed 5th June 1827, to Henry Deringer.
    Similar entries were .also put in evidence in regard to the John Brady, John McGrowan and Job Rope tracts, all of which, by these entries, appeared to have been deeded to Henry Deringer on the 5th of June 1827.
    The following entries were then offered:—

      Treasurer’s Transcript Booh of Unseated Lands, Page 16. Henry Deringer,
    To Luzerne County, for Taxes, Dr.
    Co. Rd. Co. Rd.
    Acres. ■400 400 3724 3724 Warrantee Names. Joseph Brown, John McGowan, Samuel Rope, Job Rope, Township. Sugarloaf, 1838 1838 1839 1839 Total. 2.00 2.00 2.00 2.00 8.00 2.00 2.00 2.00 2.00 8.00 1.86 1.86 1.86 1.86 7.44 1.864 1.864 1.864 1.864 7.46
    $30.90
    30th March 1840, received above in full.

      Page 110.
    Henry Deringer,
    To Luzerne County, for Taxes, Dr.
    1840. 1841. Co. Bd. Sch. Co. Rd. Sch. 1.87 1.87 1.49 2.24 1.87 1.49 37J §11.21 1.86 1.86 1.49 2.23 1.86 1.49 37¿ 11.17 2.00 2.00 1.60 2.40 2.00 1.60 40 12.00 2.00 2.00 1.60 2.40 2.00 1.60 40 12.00 2.00 2.00 1.60 2.40 2.00 1.60 40 12.00 373J Rope Job, Sugarloaf, 372 Rope Samuel, u 400 McGowan John, “ 400 Brown Joseph, “ 400 Brady Robert, “
    §58.38
    Advertising 1 Tract, 50
    Total, §58.88
    (No receipt on this entry.)
    Page 159.
    Henry Deringer,
    To Luzerne County, Dr.
    400 Brady Robert, 400 Brown Joseph, 400 McGowan John, 373 Rope Job, 372 Rope Samuel, 1842. Sugarloaf, 1.60 3.20 “ 1.60 3.20 “ 1.60 3.20 “ 1.09 2.98 “ 1.48 2.97 7.77 15.55 1843. 80 2.40 2.40 1.60 80 2.40 2.40 1.60 80 2.40 2.40 1.60 74 2.23 2.23 1.48 74 2.23 2.23 1.48 ¡.88 11.66 11.66 7.77
    §58.29
    Received, August 30th 1844, of H. Deringer, $58f^j in full of above taxes.
    Daniel Harding,
    Treasurer.
    These were followed by other entries from the transcript books of different treasurers of Luzerne county, to show that the taxes had been paid on the above tracts from 1848 to 1868 by Henry Deringer or his estate.
    In regard to the tax receipts, William H. Todd testified: Was acquainted with Henry Deringer; married into his family; between the years 1838 and 1840 he asked me to examine his title-papers to his five tracts of land in this county; among them were tax receipts purporting to be from the treasurer of Luzerne county from the year 1826; these receipts contained the names of the five warrantees, Samuel Rope, Job Rope, Joseph Brown, Robert Brady and John Brady and John McGowan; these receipts were like this:—

      Mr. Henry Deringer,
    In account with Luzerne County, Debtor for County and Road Tax as follows :—
    Acres. Warrantee Names. Township. 400 Brown Joseph. Sugarloaf, 400 Brady John “ • 400 . McGowan John “ 400 B,ope Job “ 372 Hope Samuel “ 29.58 • O. 1828 1829 $2.00 $2.00 2.00 2.00 2.00 2.00 2.00 ' 2.00 1.86 1.86 B. 1829 Amount. $2.00 $6.00 2.00 6.00 2.00 6.00 2.00 6.00 1.86 5.58
    Received payment per hands of Col. John Bittenbender — Jan’y 5th 1830, |29.58.
    Signed Zurah Smith, Treasurer.
    These receipts were in a bundle, and I examined every one of them. They were complete from 1826, except from 1844 to 1848.
    Calhoun M. Deringer testified: Am the son of Henry Deringer; occasionally arranged my father’s papers during the years from 1838 to 1840, and from 1847 to 1850; among the tax receipts were those for the lands in Sugarloaf township; there were tax receipts from 1826 to 1844; these papers were in a closet; I arranged them in different bundles; I examined these receipts particularly; opened every paper and endorsed the contents oh the back; endorsed the receipts; they were signed by the different treasurers of Luzerne county; they embraced the years • from 1826 to 1844, and subsequently there were receipts from 1849 to 1867, inclusive; the first .receipt was a statement from the- treasurer of Luzerne county to Henry Deringer, with the number of acres, warrantee names, rate of tax for 1827 and 1828, and receipt of treasurer; two years were embraced in each receipt; the date of the first receipt was, I think, the 10th of November 1828; last saw these receipts in 1868; my father died February 26th 1868; saw them just prior to his death; all the receipts from 1826 were in my father’s sick room, except the four years I have spoken of; saw them next in December 1868; the title-papers were taken from a bundle and given to Mr. Hakes, and the receipts were left behind in the closet where kept; these papers in the closet were lost or destroyed; when we found trespassers on the land and this suit was brought, I went for these tax receipts to my sister-in-law in Philadelphia, in whose possession they were, and she told me that she had destroyed them; sent some of them up Second street as old paper; sold a barrel full as waste paper, and had burned some; my brother had told her they were of no use; that father owed no man a penny, and that she could do what she pleased with them; made search from some scattered papers she had sent to the factory; found a large number of papers there; sat up all night, and opened every paper; I found two receipts that were in that bundle for 1828 to 1830, inclusive — 1827 to 183.0, inclusive; I found three letters of Colonel Bittenbender, dated January, May and July 1829, respecting the payment of these taxes, &c.; I found the letter of Treasurer Zurah Smith, dated February 4th 1829; found the stubs of check-books in which were the margin of taxes paid for these lands by my father; have preserved all the papers that related to the Luzerne county lands, and have them here; I found the tax receipt in evidence [supra); also found another receipt; one previous to that from Treasurer Zurah Smith; I had that receipt here at the last trial, but it has been mislaid; that receipt was a statement for the taxes for 1827 and 1828, receipted by Zurah Smith; had the number of acres for each of the tracts Job Rope, Samuel Rope, Joseph Brown, Robert Brady and John McGowan; it had the county tax of 1827, and the road tax of 1828 and 1829, for each of the tracts carried out and the sum total of the five tracts added up and receipted at the bottom by Zurah Smith, treasurer; the amount was $32.08, and was dated about the 10th of November 1828; Colonel Bittenbender was an agent of my father.
    Eliza Clark testified: Am the daughter of Henry Deringer; my father kept his business papers in a closet under the front stairs; I saw some of these papers the last time, during his last illness; they were tax receipts relating to these lands; I did not see them, but heard father dictating a letter to the treasurer of Luzerne county, in relation to the payment of taxes.
    Mrs. Estalina Deringer testified: Was married to Bronaugh M. Deringer, son of Henry Deringer, -in 1848; went to live in the old homestead property of Henry Deringer in 1868; these papers were in the closet under the front stairway at that time; Dr. Clark gave me the key of the closet, but I didn’t disturb it until my brother-in-law, Theophilus, came to the house; I then asked him what disposition I should make of them. He told me that his father owed no man anything; that receipts were good for nothing after six years; that they were old receipts; that I might destroy them or do as I pleased with them; I had quantities of them burned; the balance were taken to the factory, and put in the loft; Calhoun Deringer called on me in reference to these papers, probably two years after they were destroyed, and I informed him they were destroyed.
    Henry S. Gross testified: Married a daughter of Henry Deringer; had knowledge of his business papers from 1855 to 1868; saw the papers relating to the Luzerne county lands in 1855 or 1856, and last saw them in January 1868; I saw tax bills with receipts upon them as they came, from 1855 to 1868, every two years; I had charge of his papers, and thus saw them; saw tax receipts, deeds and letters from agents; Colonel Bittenbender was one; in 1868 saw all his tax receipts; they covered from 1827 to 1844; they were continuous, except an interval of four years; he paid his taxes every two years.

      ■ Frank Stewart testified: Am an attorney-at-law in Columbia county; in 1868 called upon Dr. Clark in Philadelphia, in regard to two tracts of land that Mr. Deringer claimed in his lifetime, and which I claimed; he unrolled papers that proved to be tax receipts upon five tracts of land, two of which I claimed; I examined them down to 1843, and I was satisfied they (the Deringers) had paid the taxes on them up to that date; receipts were from 1826 or 1827 to 1843; as he unrolled them and called them over, I took them in my hands and looked at them; they were signed by the treasurer of Luzerne county.
    The plaintiffs here rested.
    The defendants then gave in evidence:—
    Application, June 13th 1793, for Samuel Rope tract in county of Northumberland.
    Warrant, June 13th 1793, for Samuel Rope in county of Northumberland, 400 acres.
    Survey, October 4th 1793, in pursuance of warrant to Samuel Rope, 372i acres and allowance.
    Certified copy of William Gray’s returns, including Samuel Rope, returned 28th April 1794.
    Deed poll, March 1st 1794, Samuel Rope to William Steedman for Samuel Rope tract. Proved 19th October 1839.
    Deed poll, September 31st 1794, indorsed on above, William Steedman to Tench Coxe- for Samuel Rope tract. Proved in 1839.
    Deed of assignment, March 20th 1801, Tench Coxe to William Tilghman, Abram Kintzing, Jr., Peter Stephen Duponceau and George Worrell, for all the lands of grantor, wherever situate, in trust for benefit of creditors.
    Deed, Geo. Worrell, April 19th 1803, to Peter S. Duponceau and Abram Kintzing, Jr., for all his estate under former deed, under same trust.
    Deed, September 1st 1823, William Tilghman to Peter S. Duponceau, for all his interest in said estate, under same trust.
    Abram Kintzing March 9th 1822, to Peter S. Duponceau, for all his estate under trust deed from Tench Coxe, same trust.
    Deed, June 9th 1828, Peter Stephen Duponceau to Charles Sidney Coxe for all his estate, &c., reciting conveyance, and conveying all the estate — same trust.
    Admitted that Charles S. Coxe, Tench C. Coxe and Franklin Coxe are the heirs and legal representatives of Tench Coxe, deceased.

      Assessment Boohs for Sugarloaf Township for 1826 and 1827.
    1826— 372 acres, Rope Samuel, commissioners, 1820 V.
    1827— 372 acres, Rope Samuel, commissioners, 1820.

      Commissioners’ Boole of County Rates and Levies, 1826, ’27 and ’28.

      Sugarloaf.

    1827 — 872 acres, Rope Samuel, Y. 372, Tax 1.86. Supposed for 1828, 372, Tax 1.86.
    Under head of Reputed Owners, “ Commissioners 1820, sold to Henry Deringer in 1826.”

      Commissioners’ List to-Treasurer for 1826 and 1827. — Sugarloaf.
    372 acres, Rope Samuel, val. for 1827, $372, Co. Tax, 1.86. Under head of Reputed Owners, “ Commissioners 1820, sold to Henry Deringer in 1826 — Road tax for 1827, 1.86.”
    Deed 1828 Zurah Smith, treasurer Luzerne county, to John Bitten-bender, Isaac Harding and William Swetland, Commissioners of Luzerne county, for Samuel Rope tract, reciting sale for taxes 25th Nov. 1828.

      Assessment — Sugarloaf Township — Unseated Lands.

    1832— 372 acres, Rope Samuel, Val. $372.
    1833— 372 acres, Rope Samuel, Yal. $372.

      Commissioners’ List to Treasurer of Unseated Lands for Taxes of 1832 and 1833 — Sugarloaf Township.

    Acres. Valuation. Warrantee Name. Years. Co’y Tax. State.
    372 372 Rope Samuel, 1832 1.86 .37^
    1833 1.86 .37t25
    Under head of Owners, “ Charles S. Coxe, not paid.”
    Admitted that the Treasurer’s Transcript Book for the years 1832 to 1837 inclusive, in which the treasurers made entries of payment of taxes upon unseated lands, and the Treasurer’s Sales Book of 1834, are missing from the office, and were lost January 1841, and have never been in the office since.
    1834, June 9th. Deed, Benjamin A. Bidlack, Treasurer of Luzerne County, to Charles S. Coxe for Samuel Rope Tract, containing 372 acres, Sugarloaf Township. Sold 9th June, 1834; consideration $12.43. Acknowledged 4th August 1834, in open court.
    Defendants then proved the payment of taxes by Charles S. Coxe on the Samuel Rope tract from 1838 to the commencement of this action, and gave in evidence the following entry in the Commissioners’ Transcript Book for the purpose of showing that the taxes for non-payment of which the land was sold by the treasurer to the commissioners on November 25th 1828, were not paid by Henry Deringer until January lOtb 1829, after the sale had taken place.

      Commissioners’ Transcript Book, p. 100. Henry Deringer, To Luzerne County, Dr. "Warrantee Names. Township. Sugarloaf. Acres. 400 400 400 400 372 Brown Joseph, Brady Robert, McGowan John, Rope Job, Rope Samuel, Ok. Years. Co. Ed. Am’fc. 1827 1828 1827 1828 1827 1828 1827 1828 1828 2 2 2 2 2 2 2 2 2 ■2 2 2 6.00 6.00 6.00 6.00 1827 1.86 1.86 1.86 5.85 10th January 1829, by cash, per J. Bittenbender, Esq., §29.58 29.58
    There was very slight evidence by either plaintiffs or defendants as to their occupation of the land or improvements erected thereon. In rebuttal the plaintiffs put ini evidence the following letter :—
    Wilkesbarre, February 4th 1829. Dear Sir: — Your letter of 30th January last came to hand. I have seen Mr. Myers ; he says the due bill you mention was given as part payment on the purchase of the five tracts of land, to wit:—
    Jos. Brown, $36. John or Robert Brady, 36.23 Jno. McGowan, 36.23 Job Rope, 36.23 Samuel Rope, 34.04| $178.96J
    The amount here stated Mr, Myers says is all the moneys received by him, which appears by . the books of the county was all he accounted for at settlement. If he is correct, there is still a deficit of the taxes of 1826, inasmuch as the taxes of twenty-six are not charged in the transcript of sale. The sale as appears of record .charges the county taxes up to 1825, and the road taxes up to ’24. The sale was made to you on the 8th day of July 1826, at which time the tax for 1826 could not have been due, and the taxes of ’27 were not assessed. After the lands go out of the hands of the commissioners, they can no longer levy a tax for the road, wherefore you will save the road taxes from ’24 to ’27, when the same was again levied by the road masters. The receipt I gave to Mr. Bittenbender includes the county tax of 1827, and road taxes of 1827 and ’28 ; though Mr. Myers is positive, I say he may be in an error, and if you have any vouchers to show the payment of the same for 1827, county or road 1827 — 28, otherwise than by the hands of Mr. Bitten-bender, your money ought and shall be refunded. You say that you have Mr. Myers’s receipt for the taxes of 1827 ; if so, please forward me a duplicate of the same, which will set the matter at rest. It ought to be in the following form:—
    400 400 400 400 372 Co. Warrantee Names, Township. 1826 Brown Joseph, Sugarloaf. Brady Kobert or John, “ McGowan John, “ Bope Job, “ Bope Samuel, “ Advertising, Co. Bd. Bd. 1827 1827 1828 Amount. 2.00 2.00 2.00 $6.00 2.00 2.00 2.00 6.00 2.00 2.00 2.00 6.00 2.00 2.00 2.00 6.00 1.86 1.86 1.86 5.58 2.50 $32.08
    The foregoing is a transcript copy which I gave Mr. Bittenbender, which shows the years and what taxes were paid by him.
    Signed Z. Smith, Treasurer. To Mr. Henry Deringer.
    Plaintiffs then .made the following offer
    “ Plaintiffs’ counsel offer in evidence treasurer’s sales book from 1828 to 1830 of Zurah Smith and S. D. Lewis, the witness on the stand, treasurers. This in connection with other entries of the same book of the same character, and like entries of same character in other books in the treasurer’s office, in connection with the evidence of S. T. Lewis, Esq., who was treasurer of the county in 1830, and who succeeded Zurah Smith as treasurer and made entries in this book of similar character. This for the purpose of showing that the taxes of 1827 were paid before the sale, and that no sale of the Samuel Rope tract was made in 1828; and that the entry ‘paid before sale’ in said book opposite said tract was in pursuance of the custom of marking the payment of taxes which were made after the entry of said tracts in the sale book and before the day of sale; and that the tract so marked was not debtor to the ■county for taxes and could not be sold for taxes so appearing on the sale book. Also for the purpose of showing that a record of treasurer’s sales was kept in 1828 and that no sale of the Samuel Rope tract appears thereon.”
    The defendants objected and the court ruled:—
    “ Objection to the evidence sustained, except that the treasurer’s sales book of 1828 may be offered in evidence for the purpose of showing whether the treasurer made an entry of. a sale at that time in that book or not. But for the purpose of showing whether it contains an entry of the payment of taxes prior to the sale, it is excluded; and for all other purposes' generally excluded and the other evidence embraced in the offer also excluded.”
    The plaintiffs’ and the defendants’ counsel both excepted to the ruling of the court and at their request a bill was sealed for both.
    To the extent admitted by this ruling the treasurer’s sales book was then put in evidence.

      The plaintiffs then made the following offer:—
    “ The court having admitted in evidence the entry made in the treasurer’s sales book of 1828, relating to thé Samuel Rope tract, solely for the purpose of proving that it shows no sale of this tract in that year, plaintiffs’ counsel now offer the entire record of the treasurer’s sales of 1828, for the purpose of showing how the record was kept by the treasurer in reference to other tracts which plainly appear to have been sold; for the purpose of showing to the court and jury, when taken in connection with other evidence already in the case, that no sale was made of the Samuel Rope tract in 1828, and further for the purpose of showing that in every instance where the entry ‘ paid before sale’ appears, the record shows no sale of the tract to which such entry relates.”
    Defendants objected and the court ruled:—
    “ Objections overruled and the evidence admitted, except where entries of ‘ paid before sale’ appear upon the treasurer’s sales book of 1828 in connection with other lands, the offer is rejected, for the reason that any entries of tax paid before sale made in connection with other tracts cannot affect the Samuel Rope tract. Counsel for plaintiffs and for defendants excepted to the ruling of the court, and at their request, bill was sealed for both.”
    During the argument of the counsel first speaking for the plaintiffs, defendants asked the court to withdraw from the jury the letter of Zurah Smith, treasurer, to Henry Deringer, of February 4th 1829, as evidence that the taxes of 1827 were paid to Treasurer Myers by Henry Deringer.
    The court denied the request at that time for the reason that no evidence had been given of the payment to Myers, to which ruling defendants’ counsel excepted and a bill was sealed.
    Defendants submitted the following points, with which are given the answers of the court: — -
    4. That the parol evidence of the contents of alleged tax receipts destroyed, for the taxes of 1882 and 1833, fails to establish the material fact of the date of payment, and as there is no other evidence showing the date of such alleged payment to have been before the sale of 1834, such sale divested any title previously held by plaintiffs, and the verdict of the jury must be for the defendants.
    Answer: “In the general charge, I explained the matter involved in this point as fully and as clearly as I could. I said that if the jury found from all the evidence in the case that the taxes were paid prior to these sales, their verdict should be for the plaintiffs, but if they were not paid until after the sale, the plaintiffs could not recover.”
    5. That the parol evidence of the contents of lost instruments of writing must be of the most positive and unequivocal kind; and, as in this case, none of the witnesses testifying to the contents of the alleged lost receipts for the taxes of 1832 and 1833 have proved the material fact of the date of such alleged receipts or attempted to give the contents thereof, such parol evidence is inadmissible to destroy the treasurer’s deed of 1834, and the verdict of the jury must be for the defendants.
    Answer : “ You must be satisfied, gentlemen of the jury, that the taxes for those particular years mentioned in the point were paid before sale.
    “We repeat, if you are satisfied from all the evidence in the case, not only that the taxes were paid, but paid before sale, then, to that extent, the point is negatived. The evidence must stand for what it is worth. The jury are to say whether it is satisfactory testimony, not only of the payment of the taxes, but of their payment within the required time.”
    6. That there is nothing in the letter of Zurah Smith, treasurer, dated February 4th 1829, from which the jury can find that the taxes of 1827 had been paid to the former treasurer, Myers, by Henry Deringer.
    Answer: “We say in answer to that point, that so far as we can understand the letter of Zurah Smith, it seemed to be but a claim on the part of Mr. Deringer for something. It is not denied that the taxes for 1827 were paid by him, but it is alleged that they were not paid until the 10th of January 1829. Mr. Deringer, it would seem, had written a letter to Zurah Smith, in which there was some claim about something which had been paid by the former before that date. Zurah Smith replies under date of February 4th 1829. What does his letter relate to ? Does it relate to the taxes of 1827 or some other ? It is simply a controversy as to the exaction from Mr. Deringer of a larger sum on the 10th of January 1829, than the latter contended was due.
    “ It is not of itself evidence of the payment of taxes; it goes to the jury for them to say what the meaning of it is.”
    The following are portions of the charge of the court:—
    “ [Gentlemen, before the commissioners were authorized to make that sale they were required under the Act of March 29th 1824, to advertise the tract for at least thirty days in all the newspapers then published in the county. They were required further to have handbills posted in'at least six of the most public places of the county, giving the name of the tract, the place of its location, and the number of acres contained in it.
    “Were these requisites performed on the part of the commissioners ? In determining that point, you may take into consideration the manner in which the lands were subsequently treated by the proper officers of the county. Upwards of forty-nine years have elapsed since that sale took place. Perhaps it would be too much to expect noAV explicit proof of the publication specified in the statute. The hand that printed the newspapers in the county at that day, as well as the hand that posted the notices spoken of in the statute, are both now probably cold in death. The tongue that could have spoken to us advisedly in relation to these matters .has been, perhaps, hushed for ever. It is your duty, however, to ascertain from the best evidence before you, whether/ or not the requirements of the statute referred to were complied with. In ' doing this, you may consider the showing as exhibited by the books in evidence, as well those belonging to the treasurer’s office as those kept from year to year under the direction of the commissioners.
    “ You have before you also the commissioners’ deed in which the fact is recited that all the requirements of the statute had been 'observed. It has been shown, too, that taxes were assessed upon the land regularly from the year 1826 even down to 1868, not as though it belonged to the county, but as though it belonged to other parties. If, from a consideration of all these matters, together with the great lapse of time, you are satisfied that the commissioners complied with the requirements of the statute, then we say to you that their sale of the Samuel Pope tract, on the 8th of July 1826, and their subsequent deed of the 9th of June 1827 to Henry Deringer, vested in him the title. Up to this point there is no serious divergence between the views of the counsel on the one . side and the other. Indeed, it is conceded that if the commissioners did their duty in observing the requirements of the Act of 1824, then there was a good title to the Samuel Pope tract vested in Henry Deringer by the sale and the deed referred to.]
    ’ [“It was well said by the counsel for the plaintiffs that ordinarily when a treasurer makes a sale of land for taxes, he notes it upon his sale book. This book has been put in evidence, but, notwithstanding the common practice referred to, it does not show that ■ any sale of the Samuel Rope tract took place in 1828. On the other hand, the treasurer’s deed, duly executed and acknowledged, ■ recites the fact of a sale having been made on the 25th November 1828. Again, the book has been put in evidence for the purpose of showing the general disposition which the treasurer made of this and other tracts at the time of his sales in 1828. The argument of the counsel for the plaintiffs is, that if the Samuel Rope tract had been sold, an entry to that effect would have been made by Zurah Smith, the treasurer, upon this book. The entry does not appear there, and they adduce the 'omission as one of the circumstances to corroborate their theory that no' sale of the tract was made at that time.
    “You are to consider carefully the evidence presented by the defendants in this connection. They have produced a deed which recites a sale, and which, unless you are satisfied that the tax was paid before that sale, would be good, and would divest the title of Henry Deringer, and his representatives now would not be entitled to recover. In the discussion of this branch of the case, reference has been made to a letter written by Zurah Smith. I may -say here that the counsel, both for the. plaintiffs and the defendants, have apparently vied with each other in paying high compliments to the character of Zurah Smith; moreover, they say that he was a man of probity and a business man. It may be assumed then, for the purpose of this investigation, that he was that kind of a man. The letter seems to have been written February 4th 1829, and was therefore subsequent to the entry on the commissioners’ transcript book of January 10th 1829. I have only to say of Zurah Smith and of John Myers, the treasurer who preceded him, and about whom the counsel on both sides have said much in the argument, that they were old men when I was a boy. I remember Zurah Smith and John Myers. They were excellent old men, but they were not infallible; they were like all other human beings, liable to make mistakes. And now that they are gone and the clods of the valley are over them, we are called upon to investigate their acts, and to deduce from them, if possible, what the truth is, in connection with those acts. I allude to John Myers, not because the evidence connects him with the case, but solely because his name has been so frequently mentioned in the argument of counsel on the one side and the other.
    “ When Zurah Smith wrote that letter, if the theory advanced by the plaintiffs’ counsel be true, there had been dealt a staggering if not a fatal blow at this very title; and yet, it is argued, the probity of Zurah Smith is conceded on all sides, though he makes no allusion whatever at the time the letter was, written to the fact of the lands having been sold. This is a circumstance competent for argument and competent for your consideration. In explanation of the course pursued by Zurah Smith, the plaintiffs’ counsel further argue that there might have been a large body of deeds made out at this time, as was usual; and that this one might have been acknowledged through mistake, and afterwards come into the hands of the commissioners. Again, it is also argued that Zurah Smith continued to be the county treasurer until 1830; that his receipt is here for the taxes of 1828 and 1829; and yet when he executed and delivered that receipt to Mr. Deringer or his agent, if the views of the counsel for the defendants are correct, a destructive and fatal dagger had been sticking, for two whole years, in the very heart of Mr. Deringer’s title. The plaintiffs’ counsel ask how this is to be explained, if there had been such a sale as the defendants claim; how it is that Zurah Smith, who must have known of the sale, who made it, and who is conceded to have been an honorable man, continued to receive from Mr. Deringer the taxes continually accruing upon this land. It is for you to consider these circumstances, this most extraordinary state of things. You may also consider, in this connection, the condition of the records in relation to this alleged sale.]
    [“ The plaintiffs allege, however, that the sale in 1834 was like the sale in 1828 — a sale for taxes which had been previously paid by Mr. Deringer. And this would be so, if the testimony in regard to the showing exhibited by the bundle of receipts be correct. But you must find further, I repeat again, not only that the taxes in question were paid, but that they were paid before the sale of 1834.
    <£ The Supreme Court have said that testimony of this character was exceptional. It is, but it nevertheless is sometimes necessary.
    ££ There may be, for instance, a dishonest official in yonder room to-morrow; there may be a conflagration in yonder city to-morrow, and the evidence of a valuable title may be swept out of existence.
    ££ Shall people be deprived of their estate because these misfortunes occur ? Misfortunes, too, that nobody can foretell or foresee. Manifestly not. But the jury must be satisfied under the evidence in this case that these receipts did exist, and that they covered the payment of the taxes claimed to be covered by them at the very times or dates spoken of. No man can be expected to swear that he examined every day and date, the crossing of every £t,’ the dotting df every £i.’ He can say only that he saw the receipts, that he examined them and that they purported to be tax receipts for the years 1826, and, if you please, down to 1868; and further, that they purported to be receipts from the treasurer of the county of Luzerne. As I before remarked, the Supreme Court have wisely said that testimony of this character was exceptional; nevertheless,' from the very necessity of things, cases will arise where it will be competent for the consideration of a jury. If you find, then, that the receipts spoken of by the Deringer family and by Mr. Stewart, did exist, covering the payment of taxes for 1832 and 1833, and that these taxes were paid before the sale in 1834, then that sale conveyed no title whatever; it was utterly valueless. If, on the other hand, you find that they did not exist, or that they did not show the payment of these taxes before that sale, then the sale of 1834 vested the title in Charles S. Coxe, and the plaintiffs are not entitled to recover.”]
    The verdict was for plaintiffs, and judgment was entered thereon.
    Defendants took this writ, and assigned for error the admission of the testimony of plaintiffs to which the above exceptions were taken; the refusal to withdraw from the jury the letter of Zurah Smith; the answers of the court to the defendants’ fourth, fifth and sixth points, and the foregoing parts of the charge in brackets.

      A. T. MeOlintoek (with whom was Franklin B. Glowen), for plaintiffs in error. —
    All the questions presented by this record may be considered under the following four legal propositions:—
    1. That a plaintiff in ejectment, claiming under a commissioners’ sale, must show a compliance with the preliminary requisites of the Act of 29th March 1824, and that where no possession of the land has been held by the plaintiff, and the defendant has not been derelict, no presumption in favor of the plaintiff’s title arises, either horn lapse of time or from payment of taxes.
    2. That neither any entry, nor the absence of any entry, in the treasurer’s sales book of 1828, nor the letter of the treasurer, dated February 4th 1829, was competent evidence to prove that no sale took place on November. 25th 1828, or to contradict or invalidate the treasurer’s deed, mádéjn pursuance of such sale.
    3. That parol eviderfcp.of the contents of lost tax receipts is inad-
    missible to invalidate a treasurer’s deed, unless such parol evidence establishes the material , fact that the taxes were paid prior to the sale. . '
    4. That if the taxes.-.of 1827 were not paid until after the sale of November 25th 1828, a perfect and valid title passed to Charles S. Coxe by the treasurer’s sale of 1834, whether the taxes of 1832 and 1833 were or were not paid prior to that sale.
    First proposition: The curative .provisions of the Act of 1815 do not apply to a sale by the commissioners under the Act of 29th March 1824: Jenks v. Wright, 11 P. F. Smith 410. Hence, the maxim omnia prcesumuntwr, &c., cannot be invoked to cure the defect. No possession ef the tract had ever been taken or held by the plaintiffs, who, offering no evidence of compliance with the statute, had nothing to rely upon to raise a presumption in their, favor except the recitals in the commissioners’ deed, lapse of time and payment of taxes. But the recitals in a commissioners’ deed are not evidence against the owner of the land. Lapse of time raises no presumptions in favor of title, except in case of long-continued possession; and payment of taxes cannot make title to land. In Hoffman v. Bell, 11 P. F. Smith 444, where taxes had been paid for forty years under a tax title, the deed of which was executed by the treasurer after his term of office had expired, and where the warrantee neither paid taxes nor made claim to the land, it was held that the payment of taxes raised no presumption in favor of the holder of the tax title. “ Mere lapse of time proves nothing in favor of a title, for the older it is without any claim being made under it, the weaker it isAlexander v. Bush, 10 Wright 62. All presumptions from lapse of time are in favor of the party in possession: Hillary v. Waller, 12 Ves. Jr. 239, and cases there cited.
    Second proposition: To sustain the verdict, these legal propositions must be established, which, it is submitted, need only be stated to reverse this judgment: 1. A purchaser at a tax sale who pays the purchase-money and receives his deed, takes nothing by his purehasej if the treasurer omits to note the sale upon his sales book, or records the sales of other tracts in a manner different from that of the tract in question; and, 2. A purchaser of a good title at a treasurer’s sale will lose his land, and have his deed taken for naught, if at any time subsequent to his purchase the treasurer holds any communication with the prior owner without informing him of the sale.
    Third proposition: No case can arise more clearly showing the danger of the extension of the ruling of McReynolds v. Longenberger than the present. The legal point raised here is as to the sufficiency of the proof of payment of the taxes of 1832 and 1833, No attempt was made to fix the date of such payment. No single witness testified that it was before the sale of 1834. Has it ever been held that a sale for taxes can be defeated by simple proof of payment of taxes without regard to whether they were paid before or after the sale ? Would a deed be defeated by offering the receipt of the treasurer for the identical taxes if such receipt was without date and no evidence was offered to prove the daté of payment? If there is any presumption that the owner of the land has discharged his duty by paying his taxes, it - is overthrown by the counter one that the officers did not violate theirs by selling it without warrant: Ankeny v. Albright, 8 Harris 157. It must therefore follow that where there is nothing in the case but the deed on one side and the fact of payment on the other, the presumption must be in favor of the deed.
    ■ Fourth proposition: The treasurer sold the Samuel Rope tract in 1828 to the commissioners. While it was yet in their hands it was again assessed, and after the five years had expired without redemption, it was sold by the treasurer in 1834 to Charles S. Coxe. Now if the taxes of 1827 were not paid before the sale of 1828, no redemption of that sale having been made, it followed, under the ruling of Diamond Coal Co. v. Fisher, 7 Harris 267, that a perfect title passed to Charles S. Coxe by the sale of 1834, whether the taxes of 1832 and 1833 were paid or not.

      Armstrong Linn, Stanley Woodward and Clarence Leringer, for defendants in error. —
    The case of Jenks v. Wright, 11 P. F. Smith 410, was a case where it appeared affirmatively, and as part of the case of the party claiming under the sale, that there had been no public sale, but an attempt to acquire title by a purchase from the commissioners at private sale. The case does not decide what amount or what kind of proof will be sufficient to establish the requisites. Here, in this case, was a deed made nearly fifty years before the trial; a recital in the body of the deed that the statute had been complied with; the records of the commissioners showing that after the sale they treated the land as not belonging to the county; the assessments in the name of Henry Deringer, the purchaser, and the payment of taxes by the purchaser for a long series of years. Under these facts and the ruling of the'court in this case upon a former writ of error, can there be any doubt as to the propriety of the court submitting to the jury, as a presumption of fact, to find whether the requirements of the statute had been complied with ? From the recitals in the deed a presumption of regularity in the sale arises: McCoy v. Michew, 7 W. & S. 386; Robins v. Bellas, 4 Watts 255 ; M’Henry v. M’Call, 10 Id. 456. The payments taxes and the exercise of acts of ownership afford a presumption from which the jury may find that the sale was regular: Taylor v. Dougherty, 1 W. & S. 324; Hastings v. Wagner, 7 Id. 215. The maxim omnia prcesumuntur esse rite acta applies with peculiar force to tax titles: Cuttle v. Brockwav, 12 Harris 147; Heft v. Gephart, 15 P. F. Smith 510; Alexander v. Bush, 10 Wright 62. The case of Hoffman v. Bell, 11 P. E. Smith 444, cited by plaintiffs in error, decides no more than that the payment of taxes by a stranger for twenty-one years will not raise a presumption that the owner has conveyed to him. It was an attempt to misapply the doctrine of Taylor v. Dougherty, 1 W. & S. 324. One of the vital questions in the case was, whether the taxes for the year 1827, for which it was alleged the tract was sold to the commissioners in Í828, were paid before the sale ? As bearing upon this question, it was certainly competent to show the acts of the county officers, in relation to the sale of unseated lands in the county, occurring in that year, and especially their public acts.which had special reference to the sales of the tract in question. A public sale by the treasurer in the manner directed by law is essential to the validity of a conveyance by him and an important element in the title of the purchaser, and therefore the records kept by the treasurer, and especially his sale book, may be given in evidence by either party for whatever it is worth. That a deed was made in this case by the treasurer to the commissioners was shown by the production of the deed itself, but there was no evidence of a sale made to warrant the execution of the deed, which can amount to no more than secondary evidence at best, and could only be received, if at all, to show a sale after showing the loss of primary proof. It was competent, therefore, for defendants to show that the treasurer kept a record of his sales made in 1828, and that the book showed no sale of the Samuel Rope tract, which was a circumstance to be submitted with other facts to the jury. The records kept by the treasurer are evidence of what therein appears: 1 Greenl. on Evidence, sect. 483; Foust v. Ross, 1 W & S. 507; Bratton v. Mitchell, 7 Id. 259; Cuttle v. Brockway, 12 Harris 145. The treasurer being a public officer, an entry made in a book kept by him of an official act may be given as evidence of what it contains: Overseers of Lewisburg v. Overseers of Augusta, 2 W. & S. 65-69; Dikeman v. Parrish, 6 Barr 210, 221; Kennedy v. Daily, 6 Watts 271. In an action of ejectment, tax books and receipts for taxes are evidence: Lewisburg v. Augusta, supra; Vastbinder v. Wager, 6 Barr 339; Fager v. Campbell, 5 Watts 287. The error of the officer will not deprive the owner of his land: Dougherty v. Dickey, 4 W. & S. 146; Fager v. Campbell, 5 Watts 288 ; Baird v. Cahoon, 5 W. & S. 540; Bayard v. Inglis, Id. 467. A recital in a treasurer’s deed for unseated land is not conclusive evidence of the fact, but may be shown to be erroneous by the sales book and parol evidence: Turner v. Watterson, 4 W. & S. 171. The proof of the lost receipts and the other evidence offered was such evidence as it was proper for the court to submit to the jury to find whether the taxes upon which the sales of 1828 and 1834 were founded were paid before sale. See opinion of this court in former argument of this case, 28 P. F. Smith 271, and the following cases: Alexander
      v. Bush, 10 Wright 62; Iddings v. Cairns, 2 Grant 88; Bartholomew v. Leech, 7 Watts 472; Devor v. M’Clintock, 9 W. & S. 80; Lackawanna Iron Co. v. Fales, 5 P. F. Smith 90; Laird v. Hiester, 12 Harris 452; Wells v. Smyth, 5 P. F. Smith 159; Greenough v. Fulton Coal Co., 24 Id. 486; Longenberger v. McReynolds, 7 Id. 23; same case, 25 Id. 13; Reynolds v. Richards, 2 Harris 208; Tanner v. Hughes, 3 P. F. Smith 289; First National Bank v. McManigle, 19 Id. 156; Woodburn v. Farmers’ and Mechanics’ Bank, 5 W. & S. 450. That the books and records kept in the office of the commissioners and treasurer, and what therein appears touching the tract in dispute, may be given in evidence for the purpose of showing the payment of taxes before the sale, we shall refer .to: Fager v. Campbell, 5 Watts 287; Kennedy v. Daily, 6 Id. 269; Russel v. Werntz, 12 Harris 337; Laird v. Hiester, Id. 452; Overseers of Lewisburg v. Overseers of Augusta, 2 W. & S. 67-69; Dikeman v. Parrish, 6 Barr 210; Foust v. Ross, 1 W. & S. 501; Vastbinder v. Wager, 6 Barr 339; Ankeny v. Albright, 8 Harris 157.
   Chief Justice Agnew

delivered the opinion of the court, October 10th 1876.

It will be sufficient to consider the four propositions presented by the plaintiffs in error, instead of discussing the specifications of error in detail.

The first proposition cannot be sustained. There were facts to be submitted to the jury on the question whether the requirements of the Act of 29th March 1824 had been complied with by the commissioners, in making the sale to Henry Deringer of June 5th 1827. There had been no actual possession of the Samuel Rope tract until very recently. Henry Deringer had paid the taxes regularly on this tract, with a slight exception, for nearly forty years. It is not the case of one setting up payment of taxes against another in actual possession, exercising rights of ownership under a claim of title. The payment of taxes will not stand for actual possession to support a title under the Statute of Limitations, •but it is an assertion of title of a decided character, so much so it will extend even a tortious possession, beyond the pedis possessio of a trespasser: M’Call v. Neely, 3 Watts 73; Heiser v. Riehle, 7 Id. 37 ; Criswell v. Altemus, Id. 580. It was said in our former opinion, the county being the owner of the land the commissioners conveyed, the deed of June 5th 1827 recited the performance of the directions of the act, and this sale has never been impeached by the county. The conclusion then stated was that the facts were for the jury, upon the question whether the directions of Act of Assembly had been complied with. Opinion of Woodward, J., Coxe v. Deringer, 28 P. F. Smith 271. In Jenks v. Wright, 11 P. F. Smith 410, there was direct and positive proof that the sale was private, and the act not pursued. So in Hoffman v. Bell, 11 P. F. Smith 444, the deed was made after the treasurer had gone out of office, and therefore without authority. In no case has it been decided that the party claiming under a commissioners’ deed must prove the prerequisites of the sale positively under all circumstances. Natural presumptions arising from clearly proved facts which lead to a belief that the directions of the law have been fulfilled, must be submitted to a jury in this as in other cases.

The second proposition is sustained on the ground of the insufficiency of the evidence to overturn the fact of the sale set forth in the treasurer’s deed of 1828 to the commissioners. This fact lies at the foundation of the title of the county, of which the primary evidence is the deed itself. There are some recitals in a treasurer’s deed, which are only secondary evidence, and where, to support a sale, the recitals may be corrected by the original documents from which the recitals were derived: Turner v. Watterson, 4 W. & S. 171. But a sale is an independent fact in itself, not necessarily the subject of an entry in an original document, unless it happens, to be made voluntarily by the treasurer. The law requires no entry of it. The sale is itself an original act, done in pais, or, as it were, out of doors, and in point of time follows all the documentary entries relating to the tax for which the sale is made. It has nothing original to be referred to, by way of correction. Hence the treasurer’s deed is the primary and best, and, it may be, the only evidence of the fact of a sale. The sale is a necessary act, without which no deed can be made. The deed, when delivered, is therefore the proper evidence of the sale set forth in it, and cannot be avoided by loose and inconclusive evidence that no sale was made nothing less than clear and strong evidence of no sale being made should be permitted to overturn the solemn deed of the officer of the law. Any other rule would render tax titles very insecure.

This deed is found in the possession of the defendants over forty years after its date, and is given in evidence by them at the trial. No objection is made to the deed itself for any defect on its face, and no evidence was given to prove non-delivery to the commissioners or that they came to its possession surreptitiously. On the contrary, it came before the jury with the ordinary indicia of delivery, which, in the absence of countervailing proof, are legally sufficient according to the following cases: Blight v. Schenck, 10 Barr 285; Rigler v. Cloud, 2 Harris 361; Stinger v. Commonwealth, 2 Casey 428. Justice Sharswood, remarking upon the case of Blight v. Schenck, said that it recognised the doctrine that where an instrument is found sealed and delivered and there is nothing to qualify the delivery but the keeping of the deed in the hands of the executing party, nothing to show that he did not intend it to operate immediately, it is a valid and effectual deed and that delivery to the party who is to take by it or any other person for his use is not essentialPennsylvania Co. for Insuranee, &c., v. Dovey, 14 P. F. Smith 267. This case does not need the doctrine of that case. Here we have not only the signing, sealing and acknowledgment, but possession by a subsequent purchaser under a tax sale of 1834, to whom it would be probably delivered by the commissioners, who suffered the land to be sold for the taxes of 1832,1833, assessed' in his name. But it is not necessary to strengthen the presumption of delivery, for both the plaintiffs and the defendants in error have argued the case as one of a delivered deed, and that the purpose of the evidence was to show that there was no sale to support the deed.

This brings us to the sufficiency of the evidence relied on. The first two facts on which most reliance is placed are that the treasurer made entries of the sales of other tracts at the same time, and made none of the sale of this tract. What then is the fact itself as to the Samuel Rope tract, the only one we are concerned in, and what is the value of the fact ? ■ The fact is simply an omission — a failure merely to make an entry; .and its value uncertain. Was it a failure of inadvertence or of intention ? Was it a slip of memory, or because no sale was made ? Who can say with certainty.? The treasurer has made no entry of a sale, but will this fact overturn a sale he alleges he made, and which he has consummated in the most precise form, by a deed solemnly executed and delivered, under the responsibility of his office and the sanction of his oath? Surely a solemnly affirmed act cannot be blown away by such a breath as this. Still worse and weaker are the next two facts relied on, viz.: that the treasurer on the 4th of February 1829 wrote .a letter to Henry Deringer and did not mention that the land had been sold to the commissioners in 1828, and that afterwards he received the taxes of 1828 and 1829 of Deringer, and said nothing of a sale in 1828 for the taxes of 1827. If Zurah Smith; the treasurer, were a party to be affected by his own acts or omissions there would be room for argument. But after the sale of 1828, he had no power whatever, by acts or declarations, much less by mere omissions, to impair the deed he had before solemnly and officially executed and delivered. The title under that deed was not to be withered by his breath, or his omission to speak of that which did not concern him. Frail, indeed, would be the tenure of any purchaser under such a deed, could such evidence be used half a century afterwards to stifle its voice. Of the same character are the omissions of the commissioners to perform the subsequent duties devolved on them by the Act of Assembly. Such irregularities are unfortunately too frequent. And what makes the error of the court more hurtful was the language and tone of the charge upon these weak and inconclusive facts. Referring to the letter of February 4th 1829, the judge said: “ When Zurah Smith wrote that letter, if the theory advanced by the plaintiffs’ counsel be true, there had been dealt a staggering, if not fatal blow at this very title,” and referring to Smith’s receipt for the taxes of 1828-29, he said: “ And yet when he executed and delivered that receipt to Mr. Deringer, or his agent, if the views of the counsel for the defendant are correct, a destructive and fatal dagger had been sticking for two whole years in the very heart of Mr. Deringer’s title.” The language of hyperbole is suited to the purpose of the advocate, who would enforce his thought by striking and intense expressions, in order to deepen its effect, and by the exaggeration lead the minds of his hearers into the fever of his own heated fancy. But weak and inconclusive facts when thus presented by a judge can only mislead. Jurors catching the tone and temper of their conclusions from the strong and figurative style of the judge, fail to give to the facts their true weight which a cool and fair statement is calculated to produce. There is . clear error in the tenth specification.

The third proposition of the plaintiffs' in error cannot be sustained. There was such evidence of the time of the payment of the taxes of 1832 and 1833 as was properly submitted to the jury. It came from several witnesses, not being confined to C. M. Deringer. It appeared that the receipts were continuous and complete, in biennial periods, from the year 1826, until the year 1844, a lapse intervening then for four years ; and beginning again in 1849 they continued in the same manner until 1868. They were regular in their form, character and time of payment early in the year. An illustration of their form, &c., was given in the receipt of January 5th 1830, viz., a statement in transcript form of the five tracts belonging to Mr. Deringer, giving the names, quantities, localities and taxes for each tract for the two preceding years, summed up together,-and a receipt at the bottom for the entire amount, with date. This precise, methodical and regular payment of the taxes on all the five tracts early in the year was strong evidence of Mr. Deringer’s punctuality. It proved his deep interest in the subject, which was not likely to fail in performance of his duty to protect himself. It was a very natural conclusion that a man who always paid his taxes promptly in biennial periods, previous to the time of sale, would have paid them in time in 1832 and 1833. This, therefore, was a question for the jury and not the court. Yet we are not unmindful of the necessity of holding a party to strict proof of the time of payment, when its purpose is to defeat a tax sale. The doctrine of McReynolds v. Longenberger, 7 P. F. Smith 13, ought not to be carried beyond its fair import. No question arose in that case upon the sufficiency of the evidence as to the time of payment, as shown in the receipts which had been destroyed; and indeed no objection was taken to the deposition on the score of time. The questions in this court arose upon the exclusion of parts of the deposition of the person who was the administrator of the owner, who had testified to the finding of the tax receipts in their proper place among the muniments of the owner’s title ; and the points decided were that on proof of their destruction by fire, and of their apparent official character, and the lapse of time since their dates being over thirty years, the evidence of their existence, character and possession was competent, in order to receive proof of their contents. The chief question was whether such instruments, when accompanying the possession and title of the land, proved themselves after a lapse of thirty years. What would have been their effect had the deposition been read and no other evidence of the time of the payment of the taxes than the mere years for which the taxes were assessed had been offered, was not determined. We make these remarks to guard against any inference that we now mean to give that case a wider range than its true character imports.

As this judgment must be reversed for error under the second proposition it is unnecessary to consider the alleged contradiction, stated in the fourth proposition, between the answers of the court to the defendants' first and third points, and that part of the charge asserting that the sale of 1834 was valueless, if the taxes for 1832 and 1833 had been paid by Mr. Deringer. No such contradiction need take place in a future trial.

Judgment reversed, and venire de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Farrington versus Woodward.
    1. W. and P., while in partnership, borrowed certain wooden patterns from V., through an agent, H., H. agreeing, by the terms of the receipt given, to return them to Y. ‘‘immediately after using themthere was no evidence that W. ever knew of the terms of this receipt, but he knew the patterns had been borrowed from Y. and were to be returned to him. Afterwards W. bought P.’s interest in the business, and covenanted to meet all the liabilities and perform all the contracts of the firm. W. retained H. in his employ and carried on the business, but did not return the patterns as agreed upon; Y. obtained a judgment against P., in New York, for breach of the agreement to return the patterns, and P. brought this action to recover from W. for a breach of the articles of dissolution. The court below charged that if at the time of the dissolution, W. was ignorant of the liability of the firm to return the patterns “ immediately after using them,” P. could not recover: Held to be error, and that the question of "VY.’s means of knowledge of the terms of the agreement with V. should have been left to the jury.
    2. W., while on the witness stand,. was permitted to testify in his own behalf that, under the contract of dissolution, ne had fulfilled all the contracts and obligations of the firm of which he had any knowledge at the time of its dissolution: Eeld to be error, as it substantially amounted to testifying that P. had no cause of action.
    3. Depositions of 0., who had been counsel for P. in the suit in New York, were offered by P. and in part rejected. Among the parts rejected were the following: G. testified that suit had been begun in New York against P., a trial had and judgment recovered against P. for a certain sum and costs: Eeld, that this was admissible in evidence, if it did -not contradict the ejemplification of tlio New York proceedings, but that being merely cumulative proof of the latter its rejection was harmless to F.
    4. 0. further testified that he had advised F., that if W. had attended at the trial in New York and testified, F. would have won his case: Held, that this evidence was properly rejected as being too vague.
    5. 0. also testified that he had received a letter from W., in which, according to witness’s recollection, W. stated facts which, if proved by W. at the trial in New York, would have entitled F. to have had the complaint against him there dismissed: Held, that this evidence was properly rejected as being too vague to be of value.
    June 5th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1876, No. 120.
    Covenant by Thomas B. Farrington against John A. Woodward, to recover damages for a breach of an agreement for dissolution of partnership between the parties.
    On July 25th 1866, Woodward and Farrington formed a partnership for the purpose of manufacturing water-pipe, &c., at Williams-port. Soon afterwards, the firm, by Gideon Hurlburt, their foreman, obtained some wooden patterns at Lockport, New York, from one Yan Yoorhis, upon a written agreement signed by Hurlburt as agent for the firm to “ return them immediately after using.” These patterns were at once taken to Williamsport and from there to Elmira, New York, to be used there, and were left in the possession of one Stevens for the firm. After they had been used they remained with Stevens, subject to the firm’s order, till after the dissolution. On March 3d 1868, the firm of Woodward & Farrington was dissolved; Woodward bought the business and covenanted “ to pay or satisfy all the debts of the late firm and carry out all of its contracts, engagements or obligations and save and keep harmless the said Farrington of and from the payment of any debts of said firm and s.ave and keep harmless the said Farrington from the non-fulfilment of any of said contracts, engagements or obligations.” At the time of the dissolution, Hurlburt was in the employ of the firm; he continued for sometime thereafter in the employ of Woodward. At that time no steps had been taken to return the patterns to the owner.
    In December 1868 suit was begun against Farrington by Yan Yoorhis in Rochester, New York, for his failure to return the patterns as agreed upon. Farrington immediately notified Woodward of this action, and called upon him to defend it. Woodward took no steps to defend the action, but he at once sent the patterns to Rochester and tendered them to Yan Yoorhis, who refused to receive them. Farrington did not know of this fact till it was too late to take depositions to prove it at the trial, and Woodward refused to go to Rochester to testify as to it. Judgment was recovered against Farrington in the action in New York for $100.19 and $134.01 costs, and this action was brought by him to recover from Woodward the amount of the judgment and costs, and his expenses,- counsel fees, &c., in the litigation, amounting in all to $789.25.
    At the trial Farrington testified, in regard to Woodward’s knowledge of the agreement to return the patterns to Van Voorhis, substantially that soon after the firm was formed the witness and Woodward had agreed to send Hurlburt to borrow these patterns from Van Voorhis ; that Hurlburt obtained them after some difficulty, and returning to Williamsport told Woodward and Farrington the results of his efforts, and informed them of the receipt which he had given for them as agent for the firm; that the patterns were then taken to Williamsport and from there to Elmira, where Woodward saw them and made arrangements for th.eir use. Further, that at the time of the dissolution he (the witness) called Woodward’s attention to the fact that the patterns belonged to Van Voorhis, and requested him to attend to returning them, so that there might be no trouble.
    Woodward testified among other things that he had never known the contents of the receipt given for the patterns; but admitted that when they were brought to Williamsport, when they were taken from there to Elmira, and when they were at Elmira he knew that they did not belong to the firm, but - had been borrowed from some one by the name, as witness thought, of Van Voorhis, an attorney-at-law.
    In rebuttal a letter was put in evidence, written by Woodward at Farrington’s request to De Lancy Crittenden, the attorney for Farrington at Rochester, after the suit was begun there by Van Voorhis, in which he recounted at length the borrowing of the patterns from Van Voorhis, and stated that they had been at once taken to Elmira, for use by the firm, and were, when the letter was written, on storage in Elmira, ready for Van Voorhis whenever he should call for them.
    For the plaintiff, the deposition of Crittenden was offered as evidence in chief; the important parts of it are as follows:—
    Answer to third interrogatory. “I appeared for him (Farrington) in an action in the Supreme Court of the state of New York, in which John Van Voorhis was plaintiff and said Farrington sole defendant. [It was commenced by service of summons and order of arrest on Mr. Farrington, by the sheriff of Monroe county, on the 4th day of December 1868. A defence was interposed and a trial had before a referee, and on the 8th of June 1870, a judgment for debt was directed for $100.19, with costs, against defendant. Judgment was entered the same day for the above amount, and $134.01 costs against the defendant].”
    Answer to the tenth interrogatory. [“I advised Farrington that if Woodward (the defendant) had attended upon the trial and testified as to the joint interest in the patterns, which were the subject of that action, the weight of evidence would have been with Farrington (the defendant in that action), and that the complaint would have been dismissed.] I had, according to my present recollection, a correspondence by letter with Mr. Woodward, the defendant in this action [in Avhich he stated the testimony which he would be able to give upon that trial, and the facts within his knoAA'ledge. I have carefully examined my papers to find this correspondence, but I am unable to find any of his letters. My present recollection is that he stated in those letters in substance that he Avould corroborate Mr. Farrington in his statements, and that the facts as stated by him would have been sufficient, if testified to by him, to have entitled the defendant to a dismissal of the complaint with costs.] [My register shows that on the 12th of July 1870, the debt, interest and costs Avere paid by Mr. Farrington, being then $235.55, and the judgment satisfied of record.”]
    Under the defendant’s objection the parts given in brackets were rejected and the plaintiff excepted.
    While the defendant, Woodward, was upon the-stand, his counsel proposed to ask him Avhether or not, under the contract of dissolution and in pursuance of its terms, he did or did not fulfil all the contracts and obligations of the firm of Avhich he had any knoAvledge at the time of the dissolution.
    The plaintiff’s counsel objected to the question on the ground that it was too indefinite; that the witness might state what contracts he did satisfy, but it was incompetent for him to state in general terms that he satisfied all the contracts.
    This offer was sustained, under objection by the plaintiff, and an exception noted to the ruling.
    The Avitness replied to the question, “ I did, sir, so far as I have any knowledge.”
    The court beloAV (Gamble, P. J.) was . of opinion that the case was ruled by Case v. Cushman, 3 W. & S. 544, the syllabus of which was made a part of the charge, and further charged as follows:— [“We instruct you that this case depends upon this question of fact, and that is submitted to you as a question of fact, whether at the date of this article of dissolution of partnership between Woodward & Farrington, Mr. Woodward was ignorant of any liability existing on the part of the firm of Woodward & Farrington to return these patterns immediately. If so, then no damages can be recovered from him for a breach of contract that he was wholly ignorant of at that time.”]
    Verdict for the defendant and judgment thereon, to which Farrington took this writ of error. The errors assigned were, among others, to the rejection of those parts of De Lancy Crittenden’s testimony given in brackets ; to the admission of Woodward’s testimony that he had fulfilled all the obligations of the firm of which he had knowledge, according to the offer set forth, and to that portion of the charge given above.

      J. W. Maynard, J. JthitermarJcs and J. 0. Parlcer, for plaintiff in error. —
    Crittenden’s testimony was admissible to show that Farrington did not let the action against him go by default, to show that it was lost by Woodward’s negligence in not attending to testify and as affecting the question of damages in this case by showing Woodward’s animus. The question put to Woodward was leading; it allowed him to put a construction upon his own covenant. Case v. Cushman is not in point; that was not an action between partners ; there Case had no means of knowing of the existence of the account of Gascoigne & Co. Here Woodward knew the patterns were borrowed from Yan Yoorhis and could at any time have learned from him or from Hurlburt, who remained in his employ for a year, the terms of the loan.

      Armstrong IAnn and S. 0. Parsons, for the defendant in error. —
    Crittenden’s testimony as to the contents of the lost letter from Woodward was inadmissible: Dennis v. Barber, 6 S. & R. 420; Coxe v. England, 15 P. F. Smith 223. Case v. Cushman governs this case; Woodward undertook only the liabilities as to which he had knowledge; it was fairly left to the jury to say whether he knew of this liability at the time of dissolution.
   Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

Portions of the deposition of De Lancy Crittenden which were rejected by the court below were admissible, if they did not contradict the record of the suit of Yan Yoorhis against Farrington in the Supreme Court of New York. The importance of the testimony, however, is not apparent. The statement of the witness in answering the third interrogatory, that the suit was commenced by the service of a summons and an order of arrest, and that a defence was interposed and a trial had before a referee, resulting in ajudgment, and his statement in answering the tenth interrogatory, that his registry showed the payment by Farrington of the debt, interest and costs recovered against him, amounting to $235.55, on the 12th of July 1870, could only have been cumulative proof of what must have been abundantly made out by the exemplification of the New York judgment. While, therefore, as corroborative and perhaps explanatory of the record, the statements were evidence under the authority of such cases as Carmony v. Hoober, 5 Barr 310, and Stark v. Fuller, 6 Wright 320, no injury could have been caused to the plaintiff by their rejection, and the error would not be significant enough to require on that ground that the judgment should be reversed.

The rejection of Mr. Crittenden’s recital of the opinion he had given Farrington as to the effect Woodward’s testimony would have had in the New York suit, and of his statement of the contents of Woodward’s letters, was right. In both instances the witness gave not facts communicated to him, but his recollection of the impressions produced on his own mind' as conclusions from those facts. His conversation with Farrington was in Woodward’s absence. He said in reference to the letters: “My present recollection is that he [Woodward] stated in those letters, in substance, that he would corroborate Mr. Farrington in his statements, and that the facts as stated by him would have been sufficient, if testified to by him, to have entitled the defendant to a dismissal of the complaint with costs.” This testimony could tend to prove nothing and was so vague as to be valueless.

There is more substance in the second error assigned by the plaintiff. The defendant was permitted to answer the question, “whether or not, under the contract of dissolution, and in pursuance of its terms, he did or did not fulfil all the contracts and obligations of the firm of which he had any knowledge at the time of the dissolution.” The objection urged on the argument that the question was leading, was not made at the trial and is not entitled to be considered here. But it involved an answer covering the entire issue in the case. The agreement dissolving the partnership and transferring the assets to the defendant, had stipulated that “ the said Woodward is to pay or satisfy all of the debts of the late firm, and carry out all of its contracts, engagements or obligations, and save and keep harmless the said Farrington of and from the payment of any debts of said firm, and save and keep harmless the said Farrington of and from the non-fulfilment of any of said contracts, engagements or obligations.” Now the patterns out of which this controversy has arisen had been borrowed of Van Voorhis for the firm. The law created the obligation to restore them. They were transferred to the possession and control of the defendant with the other partnership effects at the time of the dissolution. It will be shown hereafter that he could not have been ignorant that the patterns had been borrowed and not bought. Under his agreement with the plaintiff he was required to discharge every obligation the law laid on the partnership. Whether the duty to return these patterns to Van Voorhis was such an obligation, it was for the court and jury to ascertain upon the evidence before them, and was a question which could not legitimately be left to rest on the opinion a party to the contract might be found to entertain. A statement by the defendant of what acts he had done in pursuance of the agreement would have been unobjectionable, but the answer he was permitted to give was entirely too comprehensive. He was allowed, in substance, to say that he did not legally owe the duty to enforce which the suit was brought, and that the plaintiff had no cause of action.

All the remaining assignments of error develop, with greater or less directness, the main point on which the controversy in the court below was made to turn. Relying on the authority of Case v. Cushman, 3 W. & S. 544, the court charged: “ This case depends on this question of fact, whether at the date of this article of dissolution of partnership between Woodward & Farrington, Mr. Woodward was ignorant of any liability existing on the part of the firm of Woodward & Farrington to return these patterns immediately. If so, then no damages can be recovered from him for a breach of contract that he was wholly ignorant of at that time.” It is observable that no question as to the defendant’s means of knowledge, and no facts bearing on that question were submitted to the jury. Hurlburt, the foreman and agent of the firm, received from the Holly Manufacturing Company, on the order of J. Van Voorhis, Jr., twenty-five wooden patterns, belonging to a header, bander and turner for manufacturing wood pipe, on the 15th of August 1866. The receipt of Hurlburt stipulated that the property should “ be returned immediately after using.” The patterns were delivered in Williamsport about the 22d of August, and were taken to Elmira by the plaintiff and Hurlburt the same day. The next day the defendant went to Elmira, and the parties met in the foundry, where it was agreed ' the eastings should be made. According to the recollection of the defendant himself, the patterns "were then there. The firm was dissolved on the 3d of March 1868, the defendant remaining in the management of the business and in possession of the castings manufactured from the patterns, and Hurlburt, the foreman, remaining in his employment for a year after the dissolution. Van Voorhis brought suit against the present plaintiff on the 4th of December 1868. Up to that time the patterns appear to have been left in the hands of Stevens, at his foundry in Elmira.

In the opinion of the court below, the want of proof of express knowledge by the defendant of the terms of Hurlburt’s receipt to the Holly Manufacturing Company, was fatal to the plaintiffs case. But it is not possible that the defendant could have been deceived or misled. While he was on the stand as a witness he was asked, “When the patterns were here, when they were at Elmira, and when you agreed at Elmira to have the work done at the shops there, did you not know that they were not yours, and belonged to a man of whom your agent had borrowed them ?” He answered: “ I knew that they were not ours, and I knew that Mr. Farrington had borrowed them of some one, I presume he said Mr. Van Voorhis. I don’t recollect now. I recollect it was an attorney, and was surprised that it was an attorney who owned them.” It is to be borne in mind that after the 3d of March 1868, the defendant was in possession of the entire firm property, and was controlling its entire business. The patterns had been used and the castings made at the time of the dissolution. The fact that the property had been borrowed was admittedly known, and the defendant was perfectly aware that it had never been owned by the firm, and did not belong to him. It was his duty to see that it was surrendered to the true owner, who had a right to its possession. But it is insisted there was no affirmative proof that he knew the contents of Hurlburt’s receipt. Perhaps not, but whose fault was that ? Hurlburt was in his service, and he had the means and opportunity of obtaining all the knowledge which Hurlburt possessed. It is true nothing appeared in the papers or books of the firm disclosing the terms on which the patterns were held. But the defendant held them. He knew not only that they were not his, but that Van Voorhis owned them. He knew also that he owed some duty regarding them. If he was in doubt, he was bound to use the means at hand to ascertain exactly what that duty was. It has often been held that anything that would put a prudent man on inquiry is equivalent to notice: Churcher v. Guernsey, 3 Wright 84; Twitchell v. McMurtrie, 27 P. F. Smith 383. If in point of fact, the defendant was unaware of the terms Hurlburt had made, his ignorance was the consequence of his own want of precaution. The plaintiff ought certainly not to be required to pay without the chance of redress the penalty of the defendant’s forgetfulness or neglect.

Case v. Cushman was not a precedent to govern the rights of these parties. Cushman and one Volz had been partners, and on dissolution Volz assigned his whole estate to Case in trust for the payment' of his debts. The partnership books containing an account of the firm debts were delivered to Case, and some months afterwards Cushman assigned to him all his interest in the effects of the firm, Case agreeing to secure Cushman against “ the payment of any debts, or the part payment of any debts due by the late firm of U. Cushman & Co.” Subsequently J. & C. Gascoigne brought a suit against the firm for the balance of an account, and recovered judgment for $335.84, which Cushman paid, and for the amount of which he commenced an action against Case. It appeared that the last item of the account of the Gascoignes, amounting to $143, had not been entered in the firm books, and that the omission to enter it was the neglect of Cushman. Case. was a third party with no knowledge and no means of knowledge of the firm’s indebtedness other than that derived from the partnership books. He had dealt with Cushman on his faith in the accuracy of the accounts which those books disclosed. On such facts this court most justly held that he could not be made liable for a debt of whose existence he must of necessity have been ignorant when the agreement of indemnity was executed. But the rule adapted to such a state of facts does not apply in favor of a party by whom the existence of a liability and the person to whom it was due were known, and who retained in his service the agent through whose intervention the liability was incurred. Case v. Cushman would be an apt authority if it appeared that the plaintiff knew the terms on which the patterns were borrowed, and concealed the knowledge, while the defendant supposed them to be the property of the firm, and executed the agreement in that conviction. The transaction would have been a fraud of which the defendant would have been the victim. No such ground was taken, and yet the cause in many respects was tried as if such a theory had been asserted. The fact was controverted' on the argument, but' be it that the plaintiff was aware of the terms of the receipt given by Hurlburt. The defendant had access to the same source of information. Before the dissolution he had an equal interest with the plaintiff in the details of the business. After the dissolution it was his special duty to ascertain the extent and nature of a liability the existence of which he is admitted to have fully known.

Judgment reversed, and a venire de novo awarded.