text:
    Cox v. Couch.
    Where land is described in a deed of conveyance, or in official surveys, by courses and distances, and also by calls for adjoiners: the latter, where there is a discrepance, invariably govern.
    Natural or artificial landmarks, descriptive of lands conveyed, constitute the true boundaries; and the courses and distances, if added, serve but to point towards the place.
    Where land sold was described in the articles of agreement by calls for adjoiners only; but to the said calls in the articles, the grantor added the courses and distances in the deed tendSred, one of which, varying from the line on the ground, seemed to carry the grant into the land of an adjoiner: Meld, that the grantee, had he accepted the deed tendered by the grantor in execution of the contract, would have become the legal owner of all the land included within the calls for adjoiners.

      Held also, that the vendee, because of the variance and extension of the line as aforesaid, could not insist that the vendor had not title to all the land he professed to convey, when he had title to all he sold and was to be paid for; and that he was not therefore entitled, on any such pretext, to withhold a part of the purchase-money. And it seems that the principle would have been the same, had the course and distance fallen short of the actual boundary.
    In error from tbe Court of Common Pleas of Huntingdon county.

      May 22. This was an action of debt on articles of agreement under seal, brought by William Couch and Andrew Couch against Edward Cox, to recover a balance of the purchase-money of two tracts of land, due under said articles. It appeared by the articles of agreement, dated the 19th of February, 1842, and executed by William Couch and Andrew Couch, the plaintiffs, and Edward Cox, the defendant, that the said William and Andrew Couch bargained and sold two tracts of land situated in Barree township, Hunting-don county, to the said Edward Cox; one of them lying on and adjoining the waters of Stone Greek, and adjoining lands of J. Cunningham, D. Peightal, and William and Andrew Couch, and containing forty-five acres and eleven perches, be the same more or less; and the other tract lying on the “ Warrior JRidge,” adjoining lands of Joshua Green, 3). Peightal, B. Logan, and J. Cunningham, containing forty-nine acres and one hundred and fifty-five perches, more or less, with the buildings and improvements thereon erected, for ■ which Edward Cox agreed to pay them the sum of $1,223, in the .manner following: $623 thereof on the 1st of April, 1842; $300 on the 1st of April, 1843, with interest until paid; and the remaining $300 on the 1st of April, 1844, with interest until paid. The deed for the lands, under the articles, was to be made to Cox when he made the first payment; and the two remaining payments to be secured by the lands, and possession to be given to Cox on the 1st day of April, 1842. Cox, it appeared, went into possession of the said tracts, and between the 8th of April, 1842, and June 7th, 1843, paid $984 of the purchase-money. The balance he refused to pay, because, as he alleged, the deed tendered by William and Andrew Couch, the vendors, did not contain all the lands purchased by him, under the articles of agreement, which described the tracts by adjoiners, but not by courses and distances. But to the description of the tracts in the articles by adjoiners, the grantors had added courses and distances in the deed^tendered. The description of the two.tracts in the said deed, which was dated the 20th day of May, 1844, was as follows:—
    . “ All those two tracts or parcels of land as described in the articles of agreement, and situated on Stone Creek, in Barree township, Huntingdon county, beginning at a buttonwood; thence by lands of Josiah Cunningham N. 1 S. 50 perches to a post; thence N. 18J W. 109.5 perches to a post; thence by Peightal’s land S. 68 W. 6 perches to a post; thence S. 45|- W. 24 perches to a post; thence N. 66 W. 13.5 perches to a pine stump, Mifflin and Harrison’s land; thence-one and-degrees E. 84 perches to a post; thence S. 21-f E. 54 perches to a post; thence N. 10 E. 11 perches to a post; thence N. 81 E. 39 perches to a post; thence S. 74 E. 6 perches to the place of beginning; containing 45 acres and 11 perches, be the same more or less. The other parcel, beginning at a black oak by lands of Robert Logan; thence N. 15J W. 84 to a post; thence N. 88 E. 75 to a white oak, on Joshua Green’s line; thence S. 15-JE. 60 perches to a post; thence along road S. 15 W. 42 perches to a post; thence 33 degrees 13 perches to a post; thence S. 33 E. 12 perches to a post; thence S. 10 degrees 14 perches to a post; thence by Peightal’s land N. 48 W. 75.5 to the place of beginning; containing 49 acres and 147 perches, as supposed, be the same more or less.”
    One of the difficulties alleged, arose out of the description in the deed of the last, or “Warrior Ridge” tract, on Joshua Green’s line. It appeared that there were two lines at that part of the tract marked on the ground: “ the one,” as stated in the charge of the court, “said to be N. 72 E. 74perches, and the other 88§ E. 76 perches.” By adopting the line N. 72 E. 74 perches, it would include about jive acres more of land; but it was admitted, that this was not the true line of division between Joshua Green and the land sold to Cox. The deed described the line, N. 88 degrees E. 76 perches, to a white oak on Joshua Green’s line. The defendant alleged that his vendors, the plaintiffs, represented to him that the jive acres of an interference, were a part of the land sold by them to him; and to sustain this allegation, he called James Livingston as a witness, who testified, that he was at one time about to purchase the two tracts of land, sold by William and Andrew Couch to Edward Cox; that he went with Couch to the Ridge tract to see this line; that Couch showed him the line; that it was the same line which included the jive acres, thrown out by the line describing the boundary in the deed; that the lines did not agree; that soon afterwards he saw Couch, who told him that he had sold that land to Edward Cox. On this point of the case, the following testimony was given —
    Joshua Green, affirmed: — “ I am well acquainted with that five acres of disputed land, and with some of the particulars of it relative to this case. Some time after the Couch’s had sold to Edward Cox, I got information, that they had been surveying, and that it run into mine. I went to Andrew Couch and spoke to him about this interference — do not remember his reply. He went and got the draft and showed -that to me. I found the line running up the ridge till it came into my land — called for eighty-two perches long. That was altered from eighty-two to sixty-two. I asked Andrew Couch who had made that alteration on the draft. He said his brother William had made that alteration from eighty-two to sixty-two, finding that it would run into my land. Some time after this — I am not able to say whether the Couch’s or Mr. Cox got Aquila Green to come and survey this five acres of disjjuted ground. Some person came for me to go and show where my line went. They then ran round this disputed piece, and Aquila Green made a calculation of the quantity. It was five acres and eight perches. Then Andrew Couch insisted on Aquila Green running round the balance, leaving that five acres out, for the purpose, he said, of ascertaining whether there would not be the amount of land sold to Cox yet in the survey. They started on the line between Cox and Cunningham, down the ridge. I continued with them down to the big road that leads from Couch’s to Manor Hill, and there left them. [Draft shown.] I cannot say certainly this is the draft Couch showed me. I presume it is. I do not know in whose hand-writing the alteration is. My impression is, the line laying off the five acres was not on it at that time. There are two lines on the ground, marked as laid off on this draft. I do not recollect the course of the upper line. My own is either S. or N. 88 W. The loss of five acres would affect it considerably. On this upper tract the only land fit for cultivation is on the north-east corner, next to mine. There is only a part of this five acres fit for cultivation — not all of it. I suppose not more than the half of the five acres, if that — is a hollow through it. On the east side of the hollow is pretty good, on the west side stony. The good part adjoins Cox — good land— is limestone nature mixed with sand. What runs up into my land is more of a limestone nature than the other part of it. Would, taking the five acres off, leave but a small field. I could not suppose, including what is in the five acres, or what is good of it, that there would be a field of so much as ten or twelve acres. At the east end the timber is small. The timber became better on the other end — rail timber would, in my opinion, be very valuable to Mr. Cox. The yellow pine is not very valuable there — it is principally yellow pine. My line runs just along the south edge of the sink-hole. The eighty-two perch line runs. pretty much into the sink-hole. The line disputedis twenty-two perches from the sink-hole.”

    Draft spoken of, shown to the jury.
    Cross-examined: — “My land includes that five acres; calling for that lower line bounds me. The one that runs into my land, was made since my line was made. The interfering line, I should suppose, wras forty years old.”
    Jacob Cresswell, sworn: — “About the last of March, 1845, I was taken there by Mr. Cox. I ran the lines; we ran the line from the buttonwood N. 1 E. fifty perches; thence by a number of courses and distances (omitted here), to a. post which brought us to the line of Green. I found the marks of that line both ways, on the bearing N. 88f E. I run the upper line, including the five-acre piece, N. 72 E. 74 to a post; then run S. 15 J E. At twenty-two perches intersected Green’s line, before mentioned — crossed the sink-hole. Continued the line sixty perches further, to a post corner; thence S. 15-J W. 42 perches, S. 33 W. 13 perches, S. 38 E. ,12 perches, S. 10 W. 14 perches, where we intersected the line of Peightal two or five rods from the sixty corner. I do not now remember what I ran by; I had drafts of the Thomas G-allagher, Peightal’s land, and Cunningham’s draft. I ran by the Cunningham deed, I think. Py Cunningham’s deed, it runs across the creek. We took nothing west of the road.”
    Deed tendered, shown. “The deed corresponds with my surveying till it comes to the end of the line S. 21f E. 54 perches. There the deed leaves my survey altogether. Then the deed reads it 10 E. 11 perches, to a post. This deed will not come by twelve rods of the creek. I made, this draft from the courses and distances in the tendered deed; that the buttonwood tree, called for in the deed, was on the creek, as near as corner-trees are, generally, on a stream; and that Cox, the defendant, was in possession to the creek.”
    It also appeared that William and Andrew Couch, the plaintiffs, purchased the two tracts sold by them to the defendant, from J; Cunningham, by deed; that the tract lying on Stone Creek, and beginning at a buttonwood, as held by the said Cunningham, contained fifty-eight acres and one hundred and seventeen perches, which he sold to William and Andrew Couch, the plaintiffs; and that they sold but forty-five acres and eleven perches of this tract to Cox, the defendant; that of the fifty-eight acres and one hundred and seventeen perches purchased by them from Cunningham, thirteen acres and one hundred and sixteen perches lay over the creek, which they did not sell to Cox, nor ever offered to sell to any one; that they said they would not sell the same to any man, as they wanted to keep that part of the said tract for the use of the mill; and that Cox claimed' these thirteen acres, &c., under the agreement. The testimony showed that Cox went into the possession of the land to the creek; and one witness stated that Cox told him, in 1844, that he had bought to the creek and up the road, and that that was all he claimed. Cox, the defendant, alleged at the trial, that the deed tendered by the plaintiffs did not include the land to the creek; and Jacob Cresswell, whose testimony has already been given, said that the courses and distances in .the deed did not extend to the creek.
    It also appeared, that the defendant, in addition to the alleged deficiency, refused to pay the balance of the purchase-money, because, under the description of the “ Warrior Ridge” tract, in the deed, by courses and distances, one of the said courses and distances ran into the lands of one of the adjoiners, Joshua Green; and that therefore the plaintiffs, the grantors, had no title to-all the land conveyed by the deed. There was no draft in, or attached to the reporter’s paper-book.

      Defendant’s Points. — The defendant’s counsel requested the court to charge the jury as follows:—
    1. That if the jury are satisfied from the evidence that the deed tendered was not according to the boundaries by which the vendors sold the land described in the articles of agreement, the defendant was not bound: to accept it, accompanied with no offer on the part of the vendors to make such a deduction from the price of the land sold, as would be a compensation to the vendee for the land sold to him, but not embraced in the deed tendered.
    2. That if the jury are satisfied that the deed tendered was imperfect and erroneous in its description of the land intended to be conveyed by it, the defendant was not bound to accept it, and pay the money which may be justly claimed under the contract upon the tendering of a perfect deed for the land sold, and for which the vendors were able to make a good title.
    3. That if the defendant was not bound to accept of the deed tendered, then the plaintiff cannot support this action.
    4. That if the jury believe the deed tendered does not embrace and convey all the land sold, for which the plaintiffs were able to make title, then the defendant was not bound to accept it, and this at least cannot be rebutted.

      Answers. — “ 1st. With respect to a part that defendant had not the ability to make a title for, and the purchaser has taken possession of the balance of the land, this principle would not apply. We have stated our opinion on this point as applicable to this case, in our general charge.
    “ 2d. Answered as requested.
    “ 3d. We answer as requested. If the deed tendered on the principles we have stated in our general charge was such as the defendant was not bound to accept, the plaintiff cannot support this action.
    “4th. We have also answered this in our general charge as requested.”
    The defendant excepted to the charge; and the jury having. returned a verdict for the plaintiff, the defendant took this writ of error.
    Errors assigned to the charge of the court: 1. By saying to the jury as follows, viz: — “The deed describes the line N. 88 E. 75 perches. Now, if this is the true line of division between Green and the land sold, it would be a compliance with the agreement, for the agreement only calls for adjoining Joshua Green; and if they had by their deed described the boundary by the other line, and it was not the true boundary, Cox could not hold it or claim on account of a deficiency. Couch was only bound to convey up to Green’s land, on that part of the tract; and the words more or less are in an agreement to meet such deficiency, or an excess, where the parties contracted for.a gross sum in consideration.”
    2. By saying, “ The article of agreement does not show that he had undertaken to convey to this line, but to the line between Gtreen and the Ridge tract, be that tohere it may.”

    3. The court erred in their instruction to the jury, in relation to the construction of the articles of agreement on which the action was founded; and in relation to the facts bearing upon the. question — by what line or boundary the sale and purchase were made — in the whole current of their remarks.
    4. The court erred in their instruction to the jury, in relation to the deed tendered by the vendors, and especially by saying, “ If it .embraces all the land agreed to be sold on this lower tract, then your verdict will be for the plaintiff;” and again by saying, “Where the purchaser has gone into possession of the land, and the vendor has made a title for all that he had sold which he had ability to make a title for, and that a part is taken or held by a superior title, that the vendor should offer to make the deduction when he tenders the deed, and before suit brought. But that the abatement in price, where the defendant is entitled to it, may be made, and justice done to the party, on suit brought for the purchase-money, by the jury who try the cause.”
    5. The court erred in their answer to the first point put by the defendant’s counsel.

      Miles and Gfwin, for plaintiffs in error,
    cited Pur. Dig. 257; Anderson v. Nesbit, 2 Rawle, 114 ; 4 S. & R. 493 ; Galbraith v. Galbraith, 6 Watts, 112; 8 S. & R. 287; 8 W. & S. 172.

      Wilson and Campbell, contó,
    cited Large v. Penn, 6 S. and R. 136; Smith v. Hutchinson, 6 Bin. 103; Lomis v. Reutter, 9 Watts, 517; Glen v. Glen, 4 S. & R. 488.

      June 8.
   Gibson, C. J.

It is a principle of construction, that where land is described by courses and distances, and also by calls for adjoiners, the latter, where there is a discrepance, invariably govern; and it is as applicable to conveyances as it is to official surveys. By reason of imperfection of instruments, as well as inequalities of surface and carelessness of assistants, extreme accuracy is not to be attained by the compass and chain; while, on the other hand, calls for natural objects, or, what is much the same, known and established lines of contiguous tracts, admit of perfect certainty. When a vendor, therefore, conveys by established landmarks, the subject of the grant will neither overrun nor fall short of them. They form the true boundary, and the courses and distances serve but to point towards the place. Apply this principle to' the case below. The tract was described in the articles of agreement by calls for adjoiners, but not by courses and distances at all; and of all the land within the calls, the grantee would have become the legal owner, had he accepted the deed which was tendered in execution of the contract. But to the calls in the articles, the grantor had added courses and distances in the deed; one of which, varying from the line on the ground, would seem to carry the grant into the land of an adjoiner: and for this the vendee insisted that the vendor had not title to all the land he professed to convey. But he had title to all he sold and was to be paid for; and the consequence would have been the same, even had the course and distance fallen short of the actual boundary. The vendee was, therefore, not entitled to withhold a part of the purchase-money on any such pretext. As the principle is decisive of the cause, it is unnecessary to consider the bill of exceptions to evidence.

Judgment affirmed.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Stonebreaker v. Short et al.
    If the record of a sheriff’s deed in the recorder’s office is improperly admitted in evidence, not being legally recorded, the error is cured by reading the registry thereof from the prothonotary’s office.
    The registry from the prothonotary’s office of a sheriff’s deed is original evidence.
    A deposition reduced to writing before the witness is sworn is inadmissible; and so where the witness refuses to answer questions on cross-examination.
    In error from the Common Pleas of Huntingdon county.
    The question in this ejectment was on a disputed boundary between two tracts. The plaintiff, in proving his title, gave in evidence the registry in the prothonotary’s office of the acknowledgment of a sheriff’s deed for land sold under an execution. He then gave evidence that the original deed had been delivered to Stewart, one of the defendants. Notice to produce having been given, Stewart was called, and said he had not brought the deed with him. The plaintiff then read in evidence a copy of the deed from the recorder’s office, entered in 1827.
    The admission of these was the first error assigned.
    The second exception was the rejection of the deposition of one Spanogle. It was proved he had not been sworn before the deposition was written, and that he had refused to answer the leading questions of the plaintiff on cross-examination.
    The exceptions to the charge, involving matters of fact rather than of law, are unimportant here.
    The last exception was, that the verdict was uncertain, but the materials from which this was said to appear, were not brought up with the record.

      Miles, for plaintiff in error.

      Wilson and McAllister, contó.

      May 29.
   Rogers, J.

The preliminary evidence was sufficient to show that the sheriff’s deed was in existence, and in the possession of David Stewart, one of the defendants. Gilbert L. Lloyd, who purchased part of the property sold on a mortgage given by William McDumont, the owner, by title derived by several mesne conveyances from the patentee, thinks he had the sheriff’s deed in his possession, and that when he sold and conveyed the property to Short, Stewart, and Lyon, he delivered all the title-deeds. He cannot, it is true, remember the sheriff’s deed particularly, but he thinks he got it from Orbison, the purchaser at the sheriff’s sale: and Orbison says, although he has no recollection of the circumstances, yet it was his usual habit to hand over the title-papers to the purchaser. But the existence of the deed and its possession by the defendants, is rendered still more certain by the admission of Stewai’t, who was examined on his voir dire. Stewart says, I did not bring the deed here: have it not herethereby admitting its existence, and that it was in his possession, but denying that it was present in court, and, therefore, could not be produced. Then preliminary proofs being made, it was competent to the plaintiff to give secondary evidence of the contents of the deed. But independently of these proofs, the record in the Court of Common Pleas was evidence; because it was equivalent to recording, and within the recording acts. The point was ruled as early as Shryder’s Lessees v. Nargar, 1 Dall. 68. McKean, J., says, registering the deed in the prothonotary’s office is a sufficient recording within the act. This point is also recognised in Naglee v. Albright, 4 Whart. 98; Bellas v. McCarty, 10 W. 16; 16 W. 298.

But it is urged the court erred in admitting the record of the deed in the recorder’s office. The objection is well taken, for, at the time the deed was recorded, altered since by statute, the recorder had ho authority to register it. It was, therefore, an unofficial act. In Barns v. Swope, 2 W. 75, this point is expressly ruled. A registration without the authority of the law, is the unofficial act of the office, which gives the copy no greater validity than the original deprived of legal evidence of execution. But although this cannot be denied, yet we have failed to perceive that its admission injured the defendant. It could not vary the result, for, without any aid drawn from that source, the record in the prothonotary’s office was such proof of the deed, as to entitle the plaintiff to recover; and particularly coupled with the fact that it was a question of boundaries between contiguous tracts, both parties claiming under the same deed and the same sheriff’s sale.

The objection to the, deposition of John Spanogle was slightly pressed. It is a decisive exception, as has been repeatedly ruled, that the witness was not sworn until after the deposition is reduced to writing; nor is it sufficient that he make affidavit that what he states is true. The party has the right to have the witness sworn to speak the truth, the whole truth, and nothing but the truth. The deposition was also inadmissible on another ground, for the witness refused to answer the plaintiff’s question.

We see no error in the charge. The case' was fairly left to the jury. The plaintiff’s error, therefore, fails in his third objection.

The fourth error is, that the verdict and judgment are uncertain. But the answer to this objection is, that the plaintiff filed a description of the land, which has not been brought up with the record. It is impossible for us, therefore, to decide that it is uncertain, in the absence of the description which it was the duty of the plaintiff in error to make part of the record.

Judgment affirmed.


author: Coulter, J.

text:
    Lowry v. McMillan.
    A technical retraxit is where a plaintiff, after declaration filed, comes personally into the court in which his action is brought, and declares he will not proceed further in it: and this is a bar to any subsequent suit for the same cause of action.
    A plaintiff, before declaration filed, addressed the following authorization and requirement in writing, signed by her, to the prothonotary of the court in which her action was brought: “E. McM. v. J. E. L. In the Court of Common Pleas of H. county: Sir, you are hereby authorized and required to discontinue for ever, and withdraw the above-stated suit for ever, on the presentation of this paper.” This paper was filed of record by the prothonotary: Held, that it was not a retraxit, but simply a discontinuance or nonsuit, and consequently neither a bar nor estoppel to a subsequent suit for the same cause of action.
    A record, if imbued with fraud, may be altered or explained by parol evidence.
    In error from the Court of Common Pleas of Blair county.

      May 22. This was an action on the case for breach of promise of marriage, brought by Eliza McMillan, the defendant in error, against John E. Lowry, the plaintiff in error. This suit was brought to December Term, 1846.
    It appeared that a previous suit, for the same cause of action, had been brought by the same plaintiff against the same defendant, in the Court of Common Pleas of Huntingdon county, to April Term, 1846, No. 76; and that the said suit had been withdrawn, or discontinued, by virtue of the following order or authority, given by the plaintiff in writing, and addressed to the prothonotary:—
    “Eliza McMillan
    In the Court of Common Pleas of Huntingdon county, No. 76, April Term, 1846.
    To James Steel, Esq., Prothonotary:
    Sir: You are hereby authorized and required to discontinue for ever, and withdraw the-above-stated suit for ever, on the presentation of this paper.
    Eliza McMillan.
    April 11, 1846.”
    This paper was filed on the 1st of June, 1846. The prcRcvpe and writ in that case was for a breach of promise of marriage. No declaration was ever filed. The general charge of the court (Black, P. J.) to the jury, in which the facts of the case are sufficiently stated, and which contains the only answers of the court to defendant’s points, was as follows:—
    “The defendant has made nine points of law in this cause. [Points read.] Although these points are nine in number, they are only two in substance. They amount to this: 1st. That the agreement to discontinue, and the actual discontinuance of the suit in Huntingdon, constitute a bar to a recovery here. 2d. That there is no evidence before you of such a marriage contract as would justify a verdict for plaintiff.
    “ I will take up these two points in the order in which I have placed them. It appears that soon after Mr. Lowry was married to his present wife, Mrs. Eliza McMillan issued a writ against him, in the Court of Common Pleas of Huntingdon county, to April Term, 1846, No. 76. On Saturday before the term of the Huntingdon court to which this writ was returnable, some kind of negotiation was set on foot between the parties, and their respective friends, to settle Mrs. McMillan’s suit against Lowry, and a prosecution which Lowry threatened against Mr. Brotherline on letters written by him and connected in some way with the same matter. It was agreed that ^the suit should be discontinued, and the letters in question given up to Mr. Brotherline. Mrs. McMillan signed a paper authorizing the prothonotary to enter a discontinuance in her suit. When Lowry was shown the paper and asked to sign the order, he refused at first, unless the word ‘ for ever’ was inserted in it. Mr. Brotherline inserted it on Monday, without consent of Mrs. McMillan, and Lowry then signed the order to Mr. Cresswell to give up the letters. But he went the same day to Huntingdon, and retracted his order by requesting Mr. Cresswell to hold on to the letters. Subsequently the prosecution against Mr. Brotherline was pushed to conviction in this county. It is probable that Mr. Lowry retracted his order, and refused to stand by his agreement, because he had ascertained in the mean time that Mrs. McMillan had not consented to the insertion of the word that he thought so necessary. At least this is the construction most favourable to his own character for good faith.
    “Now, although this discontinuance of the writ in Huntingdon county will not, of itself, operate by way of estoppel to prevent a recovery, yet, if you believe that there was a contract between the parties, by which it was agreed that her cause of action should be for ever released, for a good consideration which was paid or performed by the defendant, then she cannot recover in this action.
    “Dr. Coffey said she told him'that she was satisfied: Mr. Lowry and she understood one another, though Lowry said afterwards that it was not settled. She did not say what she had got, nor whether she got anything. There is no evidence here that she did anything but sign the paper without the word ‘ for ever’ in it. There is no evidence that assigns to her any other motive for signing it, than Lowry’s agreement to give up the letters of Brotherline, and that agreement was not performed, for he refused to give up the letters that same day.
    “ Still, I repeat, that if you see any evidence which proves that she agreed to accept a consideration for releasing her cause of action, and that the consideration was paid to her, she cannot recover here.
    “ The institution of the first suit in this county, in which the writ was issued within less than ten days before the term, and to the service of which the defendant’s counsel by their protest seem to have meant to make an objection, appears to have been discontinued because of a doubt about the legality of the service. Whether it was a violation of the agreement to bring that suit or not, is not important, since it was not proceeded in.
    “The second objection here to a recovery is that the contract was not a binding one.
    “ That the defendant (Lowry), made a promise to plaintiff that he would marry her, is proved, if anything can be proved in a court of justice. He said it repeatedly in her presence, and mentioned it often to other witnesses when she was absent. But there must be mutual promises. If a man offers to marry a woman, or promises to do it, he is not bound to comply with it unless she agreed to accept him. It takes two to make a marriage contract, as well as any other bargain.
    “ Here it is proved that he paid her a long course of assiduous attentions, which she received from him; that he wrote to her in language which a man, not accepted, would hardly use; talking about the carriage he had bought, and his niece’s opinion of her aunt; that he got her some articles of dress, expressly declaring, at the time, that they were for the wedding, and saying that the wedding was to take place at a particular time in October then next.
    “ Then again: defendant said in her presence that they were engaged — not that he had offered or promised, or that he wanted to marry her — but he said they were engaged, which implies an obligatory promise, and of course a mutual promise.
    “ If you believe the witnesses, the case is with the plaintiff on this point also.
    “ But it is said that she ought to have made an offer to marry him before the bringing of the suit.
    “ Where a man has a contract of marriage with a woman, and merely puts it off, and she becomes impatient, she cannot drag him into court and demand damages unless she has formally offered to perform the contract on her part, and he distinctly refuses, and so put an end to the contract, because perchance he would prefer the marriage to the suit, and he ought to have a chance to make his choice.
    “But this rule is subject to some modification. If you believe, in the present case, that Mr. Lowry continued his attentions to the plaintiff down to a short time before his marriage with another woman, and then married that other without consulting the plaintiff, and so made himself unable to marry the plaintiff before the suit was brought, then she was not bound to make an offer. It would have been ridiculous to offer to marry him when he had a wife already, and the law does not require anybody to do a vain thing.
    “ What should be the damage ? This appears to have been a long courtship. Her reluctance to marry defendant was overcome, after many and strenuous efforts on his part. He succeeded, however, and kept her in the opinion that he was sincere until he chose to let her know that he was not. It cannot be denied, that a violation of such a contract is a deep and serious injury. The plaintiff is entitled to compensation for it. How much, you are to judge.”

      Defendant’s Points. — 1st. That the record of the discontinuance for ever of the action, in the Court of Common Pleas of Hunting-don county, of April Term, 1846, No. 76, is a bar to a recovery by plaintiff in this suit.
    2d. That the discontinuance for ever, filed in the said suit to April Term, 1846, No. 76, operates as a retraxit, and is a bar to any subsequent action for the same cause.
    3d. That from the record of said suit, the plaintiff is presumed to have, in person, ordered a retraxit, or discontinuance for ever of said suit, which is a bar to plaintiff’s recovery.
    4th. That if the jury believe the evidence of Dr. James Coffey, plaintiff’s witness, who testified that plaintiff acknowledged she was satisfied, and that all matters were settled between them, plaintiff 'is estopped, &e., and cannot recover in this suit.
    5th. That inasmuch as there is no evidence of an express promise, on part of plaintiff, to marry the defendant, she cannot recover.
    6th. That the discontinuance for ever of No. 76, April Term, 1846, is to be taken as the act of plaintiff, binding on her, and a perpetual bar to any subsequent action, especially as she has given evidence that defendant had signed an order to John Cresswell, Esq., for the letters spoken of, and that the nolle prosequi was proved, by Mr. Cresswell, to have been entered in the prosecution against John Brotherline, in Huntingdon county, in compliance with what she alleged to have been the understanding.
    7th. That the institution of suit No. 72, July Term, 1846, in Common Pleas of Blair county, was a violation of the agreement plaintiff alleges on part of the plaintiff.
    8th. That to entitle plaintiff to recover, there must be proof of mutual promises of marriage, and of an offer on part of plaintiff to marry defendant.
    9th. That it being in evidence that plaintiff acknowledged she was satisfied, and that all matters were settled, after institution of the suit in Huntingdon county, and the same having been discontinued for ever, pro ut the record of that suit in evidence; which judgment of discontinuance for ever, or whatever it may be called, remains effectual, not reversed or opened; no violation of any agreement on part of defendant with John Brotherline, or to discontinue or procure to be entered nolle prosequi, or any ¡orosecution for. libel or other thing against the said John Brotherline, will entitle plaintiff to recover in this action, or in any way affect the operation of the said discontinuance for ever; which, from its term, operates as a retraxit.

    The charge of the court contains all that was said on any matter of law, and the answers to the above points.
    The defendant excepted to the charge of the court, and the jury having returned a verdict for plaintiff.-of $1,000, he sued out this writ of error.
    The defendant assigned seventeen errors; but the main question argued here, and the only one pressed, was, whether the paper writing addressed by the plaintiff to the prothonotary, and by him filed of record on the 1st of June, 1846, and which authorized and required him to discontinue for ever the suit to April Term, 1846, No. 76, was a retraxit and bar to a subsequent suit for the same cause of action.

      T. Banks and Wilson, for the plaintiff in error,
    cited Hoffman v. Coster, 2 Wh. R. 453; 1 Watts, 425, 427; 1 W. & S. 433; 7 Bouv. Bac. Abr. 215; 2 Bouv. Die. 559; 10 Watts, 13; 1 Watts, 425 ; 2 Wh. R. 469.

      Qline and Fisher, contrd,
    cited 7 S-. & R. 368; 1 Penn. Rep. 134; 2 Rawle, 454; 10 Johns. R. 53; and 2 Bouv. Bac. Abr. 215.

      May 29.
   Coulter, J.

Seventeen errors are assigned for the purpose of overturning the judgment below; but the counsel for plaintiff in error, with a laudable economy of the time of this court, declined to press upon us any of them except the twelfth. We shall therefore dismiss- all the rest, with this observation, that neither separately nor collectively do they possess weight or substance.

The twelfth regards the instruction prayed for by the counsel, to wit: that the discontinuance and withdrawal of the suit between the same parties, No. 76, April Term, 1846, ought to be considered as a retraxit, and a bar to this suit; and that the docket entry and paper filed in that case, cannot be contradicted or explained by parol testimony. The refusal of the court to give this instruction is assigned as the twelfth error. If we regard the record in that case merely as a discontinuance (and the paper filed is to be considered merely as an agreement to suffer a nonsuit), then it affords no bar to the present suit.

A technical retraxit has been, and is, almost unknown in the practice of this state. It is where a plaintiff cometh personally into court where his action is brought, and saith he will not proceed in it; and this is a bar to that action for ever: 2 Jacob’s Law Die. A retraxit must always be in person; if it is by attorney it is error: 8 Rep. 58; 3 Salkeld, 245. It cannot be before a declaration, for before a declaration it is only a nonsuit: 3 Leonard, 47; 2 Silby’s Abr. 476. In the case in hand, the plaintiff did^ot go personally into court, and there, was no declaration filed. It cannot, therefore, according to the authorities, be considered as a retraxit; for although the words, “withdraw for ever,” are used in the paper filed, we cannot suppose that the parties had in their mind a legal technical rule, obliterated where it is not worn out, even in the professional mind, merely from the affinity of the word withdraw, to the word retafxit.

Withdraw a suit, is an expression used in common parlance, as equivalent with discontinuance. In addition, as no declaration was filed, it could bar nothing, the cause of action being unknown on the record, and this shows the good sense of the doctrine above established: that a retraxit did not exist before declaration filed. The record of suit No. 76, April Term, 1846, was therefore no bar to this suit as a retraxit:

But it might have been accompanied with an agreement, which, if made upon a good consideration, would have given it the character of an estoppel, or perhaps a release of this action.

It is in evidence that Eliza McMillan signed the paper dated 11th April, 1846, directed to the prothonotary, which paper was filed some time afterwards. There is not the slightest evidence of any consideration being paid the plaintiff, no evidence of any inducement which she had to make the agreement and settlement, but a corresponding agreement on the part of Lowry, to give up certain letters written by Mrs. McMillan’s friend, upon which a prosecution for libel was threatened. Lowry afterwards refused to 'give up the letters, but .the paper was filed, not by Mrs. McMillan or her agent. And the paper was altered by the insertion of the words “for ever” before it was filed, without the plaintiff’s knowledge or consent.

The friend of Mrs. McMillan was afterwards indicted, as it appears, and convicted on the letters, and she brought this action. Thus both parties threw themselves back on their original position. This evidence explains the record. A record is entitled to great sanctity in the law. But then it must be an honest record. It is in vain to talk of tlie danger of altering or explaining a record by parol: everything imbued with fraud must give way before credible sworn testimony.

On every ground taken, we are of opinion that the record was simply a discontinuance or nonsuit, with no greater or higher import or effect, and that consequently it was neither a bar nor estoppel to this suit.

Judgment affirmed.


author: Bell, J.

text:
    Bratton’s Appeal.
    By the act of the 6th of April, 1830, the lien of a mortgage is not divested by a sheriff’s sale of the mortgaged premises, where it is prior to all other liens on the property; and as in such case a subsequent judgment creditor can only sell the equity of redemption, the mortgagee is not entitled to receive his money out of the proceeds of such sale.
    Under the proviso of the act of the 28th of March, 1820, mortgages given for the purchase-money of the lands mortgaged, are liens from the time of their execution: provided they are recorded within sixty days thereafter.
    A. and B., executors of C., sold lands under an order of the Orphans’ Court, which sale was confirmed; the one-half of the purchase-money to be paid by D. and E., the purchasers, on the^rsi Monday of May, 1842, and the remaining half in three equal annual payments, with interest from the first of May, 1842. Shortly after their purchase, D. and E. sold the premises by parol to P., who soon after paid to them one-half of his purchase-money, and went into possession about the first of April, 1842. A deed was prepared by A. and B. for D. and E., but not delivered until March, 1845. Before this, D. and E. had paid to A. and B. the greater part of the first instalment. On the first of March, 1845, D. and E. executed and delivered a deed to P. for the premises; and on the same day, P. gave to D. & Sons, his two promissory notes, at one day after date, in payment of a book account. On the first of March, 1845, these notes were transferred by D. & Sons to A., one of the executors of C., “without recourse,” in part payment of the purchase-money of the land sold under order of court: it being the balance of the first instalment due by I>. and E. On the 15th of March, 1845, in pursuance of his parol agreement with D. and E., P. executed and delivered to A. and B. a mortgage of the land, to secure the payment of $905, on the 1st of April, 1846: it being the second instalment due by D. and E. to A and B. This mortgage recited the deed from A. and B. to D. and E., dated the 4th of March, 1842, and the deed from D. and E. to P.,
    ' dated the 1st of March, 1845. On the 7th of May, 1845, P., at the request of A., one of the executors of C., appeared before a justice of the peace, and confessed judgment for the amount of the two promissory notes given by him to D. & Sons, and by them transferred to the said A. On the 8th of May, 1845, a transcript of said judgment was entered on the records of the Court of Common Pleas of Mifflin county; and on the same day, the mortgage was duly recorded. On the 30th of October, 1846, the land was sold by the sheriff, by •virtue of a writ of venditioni exponas, issued on the said judgment, and the purchase-money paid into court: 'Sold, that the said judgment was a lien upon the land only from the time it was entered on the docket of the Court of Common Pleas of Mifflin county; and that it must be postponed to prior liens; that, as the said judgment was not included in the mortgage, it was not secured by the mortgage, and was not to be considered as confessed for purchase-money, nor as held in the same right with the mortgage.

      May 23. This was an appeal by Charles Bratton and Thomas Fritz, executors of James Leator, deceased, from the decree of the Court of Common Pleas of Mifflin county, confirming the report of the auditor, in the matter of the distribution of the proceeds of sale of the real estate of George A. Lyon, sold by the sheriff.
    The case, and the questions, argued and decided here, are clearly and fully stated in the opinion of this court.

      Fisher and Cooper, for appellants.

      Woods and Benedict, contó.

      June 5.
   Bell, J.

The numerous errors of the paper-book renders necessary a brief statement of facts from the record.

In November, 1841, Charles Bratton and Thomas Fritz, executors, &c., of James Leator, deceased, obtained from the Orphans’ Court of Mifflin county, an order to sell the lands of their testator for the payment of his debts. The conditions prescribed were one-half of the purchase-money to be paid on the first Monday of May, 1842, and the remaining half in three equal annual payments, with interest from the first of May. On the 1st of December, 1841, the executors, in pursuance of the order, sold part of a tract of land late of the testator, containing eighty-four acres, to John Y. Criswell and Ralph Bogle, for the sum of $1,800, and so made return to the court. This return was duly confirmed. Shortly after their purchase, Criswell and Bogle sold the premises, by parol, to George A. Lyon, for $2,000. He went into possession about the 1st of April, 1842, and shortly afterwards paid to his vendors one-half of the purchase-money. On the 4th of May, 1842, a deed was prepared and executed from Bratton and Fritz, as executors, to Criswell and Bogle, but is said not to have been delivered until March, 1845. Before this, however, Criswell and Bogle had paid to Bratton and Fritz the greater part of the first instalment of the purchase-money. On the 1st of March, 1845, Criswell and Bogle executed and delivered a deed to Lyon for the land; and on the same day, the latter gave to J. Criswell & Sons his two promissory notes, at one day after date, for the sum, of $216 and $50, respectively, in payment of part of a balance found to be due from Lyon, on the settlement of a book account. On the 1st of March, 1845, these notes were transferred by Criswell k Sons to Charles Bratton, “without recourse,” in part payment of the purchase-money of the land, being the balance of the first instalment due from Criswell and Bogle. On the 15th of the same month, in pursuance of his parol agreement with Criswell and Bogle, Lyon executed and delivered to Fritz and Bratton, as executors, a mortgage of the land, to secure the payment of $905, on the 1st of April, 1846, being the second instalment of the purchase-money Criswell and Bogle had contracted to pay to the executors.

This mortgage recited the sale of the land, under the order of the Orphans’ Court, by the executors to Criswell and Bogle; a conveyance to them by deed dated March 4th, 1842; and a deed from them to Lyon, dated the 1st of March, 1845. On the 7th of May, 1845, upon the request of Bratton, Lyon appeared voluntarily before a justice of the peace, and in an amicable action, entitled James Criswell k Sons for the use of Charles Bratton versus George A. Lyon, confessed a judgment in the amount of his two promissory notes given to Criswell k Sons, and by them transferred to Bratton. Lyon testifies that he did not know on what account Bratton got the notes from Criswell; he was not aware they were taken in part payment of the purchase-money due from Criswell and Bogle, but supposed the transaction was in discharge of an individual debt due from Criswell' to Bratton. On the 8th of May, 1845, a transcript of the judgment confessed by Lyon, was entered upon the records of the Common Pleas of Mifflin county, and thus became a lien on the land conveyed to Lyon. On •the same day the mortgage deed executed by the latter to the executors was entered of record in the proper office. On the 30th of October, 1846, by virtue of a vend, exponas issued on the judgment confessed by Lyon in favour of Bratton, the sheriff of Mifflin county sold the eighty acres conveyed by Criswell and Bogle to Lyon, and by him conveyed in mortgage to the executors, to Charles Bratton for the sum of $1,430. This sum was paid into court, when an auditor was appointed to report upon its proper distribution. Brat-ton appeared before the auditor, and asked that the money should be appropriated in discharge of the mortgage and the judgment confessed to him, on the ground that the mortgage and judgment being given to secure the payment of purchase-money, were entitied to priority over other encumbrances by judgments recovered against Lyon while he was equitable owner, and the mortgage and judgment being recorded and entered on the same day, the hold of the former on the land was divested by the judicial sale made tinder the latter. But this the auditor refused to do: and appropriated the proceeds of the land in payment of other and prior liens, and his decision in .this particular was confirmed by the Court of Common Pleas on exceptions filed by Bratton. Prom this decree of confirmation the latter appeals to this court.

After a full examination of the voluminous and somewhat confused record brought up by this appeal, we are of opinion the conclusion at which the auditor arrived is correct. To say nothing of the fact that the legal estate appears to have been conveyed to Lyon two months before the execution of the mortgage and confession of the judgment, it is sufficient to defeat Bratton’s pretensions that the mortgage was executed on the 15th of March, and therefore before the entry of the judgment in favour of Bratton. The act of the 6th of April, 1830, directs that the lien of a-mortgage shall not be divested when it is prior to all other liens on the same property ; and since this act, a subsequent judgment creditor can only sell the equity of redemption: Pierce v. Potter, 7 W. 475; Boyer v. Hiester, 6 Wh. 210. By the operation of the proviso of the act of the 28th March, 1820, mortgages given for the purchase-money of the land mortgaged, are -liens from the time of their execution, provided they be recorded within sixty days thereafter. The mortgage in this instance having been so recorded, the date of its lien was prior to the entry of the judgment under which the land was sold, and comes therefore within the saving provision of the act of 1830. It is the time of the commencement of the lien, and not the registration of the mortgage, that regulates and controls the operation of the subsequent sale by writ. At common law, a mortgage, like other deeds of conveyance, operated from the time of its delivery, and this efficacy is restricted only so far as is provided by our recording acts.

Another ground upon which Bratton claimed to have the proceeds of the land applied in discharge of the mortgage was that the amount of the judgment under which the property was sold, is included in the mortgage. But this is a misapprehension. The judgment was an independent security for the payment of an entirely distinct sum. Nor can it be said it was recovered by Brat-ton for part of the purchase-money unpaid, or that he held it in the same right in which he was possessed of the mortgage. The notes upon which it was founded were given by Lyon, in. payment of his personal debt evidenced by a book account, to Criswell & Sons; and the judgment confessed by him had no reference to purchase-money, whatever may have been the understanding between Criswell and Bratton. Lyon had paid all the purchase-money he stipulated to pay, and it is perfectly evident that the executors looked not to him for any -balance due from Criswell and Bogle.

But apart from this, according to the testimony of Criswell, Bratton accepted Lyon’s notes, as payment of the balance of the first instalment of the purchase-money in his individual capacity, and it was also in this capacity he effected a recovery of the judgment against Lyon. His co-executor appears to have had nothing to do with it. The notes and judgment thereon, could not have been treated as part of the estate of. the testator. As between Criswell and Bratton, the acceptance of the notes merged the original liability, and it is not for Bratton again to set it up, in his capacity of executor, to affect the creditors of Lyon. The judgment therefore can neither be considered as confessed for purchase-money, nor as held in the same right with the mortgage. It results that the case is not within the principle of Pierce v. Potter, 7 W. 475, and Boyer v. Hiester, 6 Wh. 210.

What has been said proceeds upon the facts disclosed by the auditor’s report, and the evidence accompanying it. Since the decree of confirmation, depositions have been taken under a rule of the court below granted for a particular purpose. The examinations of the witnesses transcended this purpose, and being ex parte, we cannot properly look into them beyond the fact that Criswell & Sons gave to Bratton, Lyon’s notes for balance of purchase-money, as already noticed. But were this otherwise, the depositions tend to prové, only that the two deeds of conveyance and the mortgage were executed, and the judgment confessed by Lyon before a justice of the peace, on the 7th of May. But the judgment did not become a lien until the 8th; consequently the lien of the mortgage was one day older than that of the judgment, and this is sufficient to bring it within the statut-ary provision.

Decree affirmed.


text:
    Milliken v. Benedict.
    If a tract of land, which, in point of fact is unseated, be assessed as seated with the knowledge and assent of the owner, and the commissioners of the county, it must be taken as seated, so far as regards the assessment and collection of the taxes; and a sale of it for taxes as unseated would be void: and this, whether the taxes have or have not been paid.
    Land which is in fact unseated, and which is assessed as seated with the knowledge and assent of the owner, and the commissioners of the county, may, whenever it suits the interests or convenience of the county, upon giving reasonable notice to the owner, be retransferred from the seated to the unseated list, and be assessed as unseated; but the assessor has no right to retransfer it to the unseated list without reasonable notice to the owner, and if he do, a sale of it for taxes as unseated, is void.
    In error from the Common Pleas of Huntingdon county.

      May 23. This was an action of ejectment brought by Aden W. Benedict against David Milliken, for a tract of land situated in Barree township, Huntingdon county, containing/ow hundred acres. At the trial, Samuel Milliken, the landlord, was admitted to defend. The case, as it appeared from the paper-book, and as stated by •Judge Wilson, in his charge to the jury, was substantially as follows:—
    The plaintiff below, Aden W. Benedict, who is the defendant in error, claimed title under a warrant to one George Hill, dated 21st of January, 1794, and a survey thereon, on the 21st of May, 1794, which was duly returned to the surveyor-general’s office, for four hundred acres of land; a treasurer’s sale for taxes assessed on it as unseated for the years 1839 and 1840, in the name of the said George Hill; a treasurer’s deed, dated the 13th of July, 1842, together with the surplus bond required by the act of Assembly, which was executed and delivered within two years after the sale. But the defendant below, David Milliken, who is the plaintiff in error, contended that the title of the plaintiff was void, because the tract.of land in controversy was seated at the time of the assessment of taxes on it, and the sale thereof by the treasurer.
    On the trial, the plaintiff produced the books from the commissioners’ office, by which he showed the following assessments on the unseated list of lands for Barree township: 1839, George Hill, four hundred acres, valuation $>100, tax, twenty-two cents; 1840, George Hill, four hundred acres, valuation $>100, tax twenty-five cents. The treasurer’s sale-book was then produced, which showed a sale of the said tract of four hundred acres for the taxes assessed thereon for the years aforesaid, on the 13th of June, 1842, by Andrew H. Hirst, treasurer of Huntingdon county, to Aden W. Benedict, the plaintiff, for $20. The deed from Hirst, the treasurer, to Benedict, the plaintiff, for the said tract of four hundred acres, dated July 13th, 1842, and acknowledged 12th of August, 1842, was then given in evidence, under objection by the defendant. The plaintiff then gave in evidence his bond' given for the surplus, under the act of Assembly, dated August 8th, 1842, and * filed in the office of the prothonotary of the county, on the 2d of July, 1844. He then read in evidence the writ of ejectment, under objection by the defendant.
    The defendant, to show that the tract was seated, proved that David Milliken, the defendant, went upon it in the fall of 1839, with workmen, commenced an improvement, put up a cabin, and built a saw-mill, which he started in the spring of 1840; that the millwright boarded himself; that the workmen slejot in the cabin, which had a bed in it; that Milliken slept in the cabin sometimes; and that the workmen cooked in it such provisions as Milliken sent to them; that two loads of boards were hauled there, in the fall of 1839, for Milliken, at which time, as testified by the witness, who hauled the boards, they had tools and a shanty with beds, and a way to stay at night, with utensils to cook; that he went to help raise the saw-mill in 1840, when he found a man by the name of Ball, with his family, living in a building which had been erected after he hauled the boards; that Ball had gone there early in the spring of 1840, and moved his family there late in the spring or early in the summer of the said year. Another witness testified that the saw-mill was commenced shortly after harvest, in 1839.
    It further appeared from the evidence given by the defendant, that the tract of land in controversy was sold for taxes in 1816, to one William Wilson; that the legal owner did not redeem, and that a certain Henry Steely became the owner thereof in 1835, under Wilson’s title; that the assessment list of seated lands for the years 1839 and 1840, for the township in which the tract of land in dispute was situated, showed an assessment of two tracts of land in the name of Henry Steely: one thereof containing four hundred acres, and the other one hundred and fifty acres; that the tax assessed on the four hundred acre tract for 1839, was eighty-eight cents, and for 1840, one dollar. On the one hundred and fifty acre tract, the tax assessed for 1839, was sixty-six cents, and for 1840, seventy-five cents. It also appeared from the assessment list of seated lands in Barree township, for 1838, that the same tracts of lands were assessed in the name of Henry Steely; and that the tax assessed for the said year on the said tracts as seated, was paid before the sale to Milliken by the treasurer, in 1840, of the four hundred acre tract, which Milliken showed was assessed as unseated, in the name of George Hill, in 1838.
    On the question, whether the land assessed in the name of Henry Steely, as a seated tract, was the same that was assessed in the name of George Hill, as an unseated tract, for the years 1839 and' 1840, the following evidence was given. Deed from John Lewis, who had become ’the owner of the title acquired under the purchase of William Wilson, of the George Hill tract, to Henry Steely, in November, 1835; the assessment lists of seated lands in the township of Barree, for 183T, showing that two tracts, one containing four hundred acres, and the other one hundred and fifty acres, were assessed in the name of Henry Steely, and the same assessment continued in .1838,1839, and 1840. William L. Black, a witness, said that he had been on the four hundred acre tract frequently; that he knew Steely’s other tract; that he never knew of Steely having any other tracts of land in Barree township. James Gillam, another witness, said that he knew the tract of land in dispute; that Steely claimed this tract in the name of George Hill, and also a tract in the name of Steely, on the Broad Mountain, containing one hundred and fifty acres. One Green testified that he was assessor for Barree township for the year 1840; that he had been assessor four different years previously to 1840; and that at some assessment previously to 1840, Josiah Ball requested him to enter on the seated list a tract of four hundred acres of land, lying on Stone Creek, above the residence of the said Ball, in the township of Barree, in the name of Henry Steely, together with Steely’s other tract of one hundred and fifty acres, which he accordingly did. William D. Black testified that he was collector of Barree township for 1840, and exhibited his duplicate for that year, in which were the following charges:—
    Steely, Henry’s, heirs tax, - $1.00
    Same, - -- -- -- 15
    He also testified that the tax of $1.00 as above charged, was paid to him by David Milliken, in August, 1840, and that the tax of 75 cents was paid by Mr. Moran, who was the executor of Henry Steely, deceased. Several bills of exception to the admission and rejection of evidence were taken at the trial, but as they have no relevancy to the' points ruled in this court, it is not important that they should be noticed in this report.
    The court (Wilson, P. J.), concluded his charge to the jury thus:—

      “ Then you determine in this case — was the land unseated at the time the taxes or either of them on which it was sold, was assessed. If it was, is it a different tract of land from the land assessed in the name of Henry Steely. If you find that it was unseated, and that the laird in dispute is not the same that is taxed in the name of Henry Steely, the plaintiff would be entitled to recover. But if you find that it was seated at the time the taxes on which it was sold, were assessed — or if unseated, but assessed on the seated list in the name' of Henry Steely, the owner, and the taxes so assessed on the seated tax-lists for the year-1839, and 1840, were both paid before the sale to Mr. Benedict, in 1842, then plaintiff cannot recover.”
    The plaintiff requested the court to charge the jury thus
    1st. That if the jury are not satisfied from the evidence that the land shown in the seated list to be taxed in the name of Henry Steely is the same land as that taxed in the unseated list in the name of George Hill, that then plaintiff is entitled to recover.
    2d. That even though the jury do believe from the evidence that the land taxed in the seated list in the name of Henry Steely for the year 1839 is the same land which in the same year is taxed in the unseated list in the name of George Hill, and that Henry Steely’s heirs, or some person for them, paid the taxes so assessed in the seated list; that the defendants not having connected themselves with Henry Steely’s title, cannot protect themselves by it; no one but the owner of the land having the right to take advantage of such payment to avoid the deed on a tax sale to plaintiff.
    3d. That if the jury are not satisfied from the evidence that the taxes for the tract of land in the name of George Hill were paid previous to the tax-sale to the plaintiff, that then the plaintiff is entitled to recover.
    4th. That if the jury are not satisfied that the marts in the duplicate of 1839, claimed as evidence of the payment for taxes, were made before June 13th, 1842 — that then there is no evidence to effect the tax-sale to the plaintiff: and therefore plaintiff should recover.
    5th. That even if the jury believe the land assessed in Barree township in the seated list in the name of Henry Steely is the Same land as that assessed at the same time in the unseated list in tbe name of George Hill, as there is no evidence of either the prior or subsequent assent or direction of Henry Steely to assess the same in the seated list, it was Improperly assessed as seated land, and the payment of the tax on the seated list is no bar to the plaintiff to recover.

      Answers to the Plaintiff's Points. — “1st We answer as requested.
    “2d. We refuse to answer this point as requested. David Milliken, who is in possession, may against the tax-title use or show the payment of taxes by Steely’s heirs, to show that the taxes assessed on the land for the same years in the name of Steely were paid, and to show that no legal sale could be made for taxes assessed on it as unseated land for the same years.
    “3d. We refuse also to answer this as requested. Although the taxes assessed on the land in the name of George Hill were not paid at the time of the sale to Mr. Benedict, yet, if the tax in the name of Steely is for the same land, and that tax was paid before Mr. Benedict purchased, the sale to him would convey no title.
    “4th. We answer as requested. If the taxes assessed in the frame of Henry Steely for the years 1839 and 1840 were not paid before the 13th June, 1842, when Mr. Benedict purchased, and you find that the land was unseated at the time the tax was assessed, the plaintiff will be entitled to recover.
    “ 5th. We cannot instruct you that there is no evidence either subsequent or prior to the assessment in the name of Henry Steely that he assented to such taxation. If done without his assent or direction, and the land was unseated, it would be improperly assessed as unseated; still, a payment of such tax on the seated list would, before a sale for the tax on the unseated list, defeat such sale — we therefore refuse to answer as requested.
    “6th. We refuse this instruction as matter of law. But the-point here put is immaterial in this case, as the questions upon which the case must be determined do not depend on whether the defendant is in possession as an intruder. The plaintiff’s right to recover in this case must depend on whether he has any title ’ upon which he can recover even against an intruder — which must depend on how you find the facts on the questions presented for your decision in our general charge.”
    The defendants requested the court to charge the jury thus:— 1st. That if the jury believe, from the evidence, that the tract of land containing four hundred acres, assessed in the seated list to Henry Steely, in the years 1831, 1838, 1839, and 1840, is the George Hill tract, sold in 1842 to the plaintiff, and that the taxes charged to the said Henry Steely in the duplicates of 1839 and 1840, were paid to the collectors previous to the sale made by the treasurer to the plaintiff, the sale is void, and gave the plaintiff neither title nor colour of title, and he cannot recover in this suit.
    2d. That no acquisition of any interest in the title of Henry Steely, by the plaintiff, from the widow of Henry Steely, since the institution of this suit, which was not vested in him at the time of the institution of this ejectment, can avail him to enable him to support this suit.
    3d. That if there were any taxes due on the land in controversy in this suit, at the time of the treasurer’s sale, in June, 1840, to David Milliken, his tax-title is a sufficient defence against the claim of the plaintiff in this action.

      Answers to Defendants’ Points. — “1st. We do not answer this point to the extent here requested, that the sale would be absolutely void and without colour of title; but these facts, if you so find them, present a case upon which the plaintiff cannot recover.
    “2d. We answer this point as requested.
    “ 3d. If there were any taxes due on the land in controversy, at the time of the treasurer’s sale to Milliken, in 1840, on the unseated list, and no tax for the same land for the same time was paid where it was assessed as seated, Milliken would acquire a title under his sale. But it does not therefore follow that his title is a sufficient defence against the claim of the plaintiff in this action. His right to recover must depend on how you find the facts which have been submitted to you in our general charge.”,
    To the charge of the court, and answers to the points propounded, each party excepted. The jury found for the plaintiff. The defendants then sued out this writ of error, and assigned the following errors here:—
    1. The court erred in saying to the jury, “ It was perfectly competent to tax the land in the name of Henry Steely or his heirs, who had become the owner of the Wilson title — and if so charged and the tax paid, after such payment it could not be legally sold for the tax charged upon it as an unseated tract — the title would remain in the heirs or devisees of Henry Steely; still a purchaser at such sale might recover the land against an intruder — that is, against one who enters without title or colour of title, and who has nothing but his naked possession,” &c.
    2. The court erred in them instruction to the jury in relation to the effect of the outstanding title of Henry Steely.
    3. The court erred in saying to the jury, in relation to the identity of the George Hill J;ract, and the tract assessed in the name of Henry Steely, “if they are not the same the plaintiff will be entitled to recover, and in the second place, if you find that the assessments are for the same land, then did any of the taxes assessed upon it as a seated tract for 1839 or 1840 remain unpaid at the time of the purchase by Mr. Benedict.”
    4. The court erred' in their instruction to the jury, by putting the case upon the question, whether the tax of 1839 in the seated list in the name of Henry Steely was paid before the sale to Mr. Benedict.
    1st. The court erred in their answer to the first and fourth points put by plaintiff’s counsel.
    2d. The court erred in their answer to the first point put by defendants’ counsel.
    3d. The court erred in their answer to the third point put by defendants’ counsel.
    4th. The court erred throughout their charge to the jury in their answers to the several points put by defendants’ counsel.

      Miles and Wilson, for plaintiff in error.

      Benedict and Orlison, contó.

      May 29.
   Rogers, J.

This is an action of ejectment, in which the plaintiff claims title under a warrant to George Hill — a sale for taxes assessed in his name, in the years 1839 and 1840, and a treasurer’s deed, dated the 23d July, 1841; together with a surplus bond, executed and delivered within two years after the sale. This vests in the plaintiff a primd facie title; but the defendant contends the plaintiff’s title is void, because, at the time of the assessment of the taxes on which the land was sold, and the treasurer’s sale, the property in controversy was a seated tract. That a sale of land by a treasurer as unseated, which nevertheless was seated at the time of the assessment and sale, is void, is ruled in several cases: 4 W. & S. 36; 2 W. & S. 107; and must now be considered as the settled law of this state. And what constituted a seated tract, as far as the court go, has been well explained; and no exception can be taken to that part of the charge. A tract ceases to be unseated as soon as it is actually occupied with a view to permanent residence; of which an entry for. the purpose of clearing the land, would be rgood evidence: 5 W. 441. We agree also, that as soon as a person enters upon an unseated tract, whether as an intruder or under a lease from the owner, becomes a resident upon it, improves it, and occupies it in such a way as to furnish upon the land itself the means of levying the taxes by distress, it is a seated tract, and is no longer the subject of sale for taxes. And if residence by any person has once commenced, it is sufficient; and an occasional or temporary suspension of actual occupancy will not; render it unseated. So it has been ruled, that land ceases to be unseated as soon as it is actually occupied with a view to present use; and an occupation may be said to commence the moment a person enters with a view to clearing it: 7 W. & S. 248.

The same principles also apply, as the court instructs the jury, where a house is put up and occupied for the purpose of carrying on a saw-mill, erected or in progress of construction, with a view to present use. But in addition to the principle thus correctly laid down, there is another class, of cases pertinent to the points of the case, to which the attention of the court would seem not to have been drawn. I allude to those cases where it is ruled that land, may lose its character as unseated, by the joint act of the owner and the officers of the county. Thus, if the jury should believe that the property assessed in the names of George Hill and Henry Steely is one and the 'same tract; that it was assessed as a seated tract consecutively from 1837 until the year 1840, with the assent and knowledge of the owner and the county, of which evidence was given: it must be taken as a seated tract, and consequently will avoid the sale for taxes as an unseated tract for the years 1839 and 1840, and this without regard to the fact, whether the taxes have or have not been paid. This consequence necessarily results from the principle ruled in Larimer v. McCall, 4 W. & S. 133; Harper v. The Mechanics’ Bank, 7 W. & S. 214. There is no law, as is said in Harper v. Bank, which forbids the owner of the land from consenting when it has been so assessed that it shall be treated as a seated tract, even when it is notoriously otherwise. And the reason given for it is for the advantage of the county. In Larimer v. McCall, it is decided that when it has been changed from the unseated to the seated list, with the assent of the proper parties to it, it does not lose its character of unseated unless notice is given to the owner of the intention to retransfer it from the seated to the unseated list. And this is held to be necessary, because otherwise the owner who relies upon the fact that his land is exempted from sale, may lose it without any default on his part. But if the land must be viewed as seated, it must have all the qualities and essentials of that character, and cannot be subject to sales for non-payment of taxes. The difference between seated and unseated land is, that the one can be, and the other cannot be sold for taxes. The remedy in the one case is against the land; in the other, the owner is personally liable. Nor has the county any right to complain, as the change can only be made by their consent, and moreover they may, whenever it suits their interest'or convenience, upon giving reasonable notice to the owner, retransfer 'it, and assess the land as unseated. But the Court of Common Pleas, as we understand the charge, instruct the jury that the principles ruled in Larimer v. McCall and Harper v. Bank, only apply where the owner has continued to pay the taxes, a distinction not warranted by the cases. It becomes, as is there ruled, to all intents and purposes, a seated tract, as respects its liability to taxation, and the assessor has no right to transfer it to the unseated list without reasonable notice to the owner.

Many exceptions have been taken here to the admission and rejection of evidence, and to the charge, which it is useless to notice further than to remark that they have not been sustained. But as there is error in that part of the charge of which notice has been taken, we are of opinion the cause must be reversed, and a venire de novo awarded.

Judgment reversed, and a venire de novo awarded.


author: Gibson, C. J.

text:
    West Buffalo v. Walker Township.
    A decision of this court, quashing an order of removal made by the justices of the peace, and the confirmation thereof by the Court of Quarter Sessions, is not conclusive on the appellee, nor does it close the question of settlement.
    Where, therefore, under a misapprehension of the legal effects of the judgment of this court, quashing an order of removal, and to remedy a supposed failure of justice, a private act of the legislature was procured to open the question of settlement and place it on its original grounds: the act was held to be merely supererogatory, and not unconstitutional.
    In the Court of Quarter Sessions, an order of removal confirmed, is conclusive against the appellant in favour of all the world; an order discharged, is conclusive between the parties litigant; and an order quashed, is conclusive on neither.
    Certiorari to the Court of Quarter Sessions of Centre county.

      May 24. This was an appeal to the Court of Quarter Sessions of Centre county, by the Overseers of the Poor of West Buffalo township, Union county, from an order of removal of two justices of the peace, under which Benjamin Troy, a pauper, was removed from Walker township, Centre county, to West Buffalo township, Union county. The opinion of the court below (Woodward, P. J.), confirming the order of removal, gives a full statement of the facts of the case, and was as follows: — ■
    “ The history of this case is peculiar. When Benjamin Troy became a pauper, he lived in Walker township. On the 28th of December, 1836, two justices of the peace issued their order in due form for his removal to West Buffalo township, in Union county, ‘as the place of the last legal settlement of the said Benjamin Troy.’ Prom that order, West Buffalo appealed to the Quarter Sessions of Centre county, and here Walker township attempted to justify the removal on the ground that Troy had been an indented apprentice or servant to one Robert Chambers, formerly of West Buffalo, but then deceased, and that he had served him in that capacity for several years, and thereby gained a legal settlement in that township. But the indenture was not produced, and some evidence was given that it could not be found, when the court received parol proof of its contents, and considered its existence, its loss, the binding and service, sufficiently established. Thus a legal settlement of Troy was established in West Buffalo township. But West Buffalo maintained that, if a settlement had been gained by such service, and if the proof of it then before the court was to be judged sufficient, yet notwithstanding it was not his last legal settlement, for' he had acquired one since in Walker township. The proof submitted on this point was not deemed sufficient by the court, and the appeal was dismissed accordingly, and the order of removal sustained. These proceedings were removed into the Supreme Court by certiorari, and there reversed on the ground that sufficient search and inquiry for the indenture of apprenticeship to Chambers had not been made to justify the admission of secondary evidence of the binding. The lost indenture was then found. But Walker township was then concluded by the decision of the Supreme Court. To relieve Walker from the embarrassment of this position, ‘ and for the furtherance of justice,’ the legislature, on the 12th day of April last, passed a law that Walker township ‘may and they are hereby authorized agá'in to test the settlement of the pauper in the proper court of the proper county, as fully as if the case had never been tried; provided that the rules of evidence as established by the Supreme Court in the said cause, shall govern the court below, as fully and effectually as in other cases.’ Walker then procured another order for the removal of Benjamin Troy to West Buffalo, from which West Buffalo has appealed to this court, and we are now to ‘test the settlement of the pauper,’ being governed by the rules of evidence prescribed by the Supreme Court, which are no other than the general law of evidence.
    “Walker township now submits the indenture of apprenticeship, dated the 6th of June, 1809, whereby Samuel Troy binds his son, Benjamin Troy, to Robert Chambers, from the day of the date until the full end and term of thirteen years and ten months, to learn the art, trade, and mystery of a farmer. The usual covenants are expressed in the indenture. It is signed and sealed by Samuel Troy and Robert Chambers, and witnessed by Christopher Seebold and William Badger. The death and handwriting of Christopher Seebold are proved by his soil, John Seebold, and Jacob Kryder. The death of William Badger is proved by his nephew, Robert Badger, and no person has been found, on inquiry, to identify his handwriting. The execution of the indenture is, in the opinion of the court, sufficiently proved. An apprenticeship is thus established. Did he ‘ inhabit in the district with his master one whole year ?’ Joseph Musser, the executor of Robert Chambers, swears that Troy lived with Chambers in West Buffalo, three years or more — we think between 1813 and 1817.
    “Rebecca Barclay says Troy lived with Chambers eight or ten years as an apprentice. Robert Badger says eight years. This proof brings him within the ninth section of the act of 13th June, 1836, relative to the poor, and entitles him to claim a legal settlement in West Buffalo township. And this was his last legal settlement, unless he acquired one in Walker township after he left Chambers. But we have no other evidence than was before the court in 1837, of a settlement acquired in Walker, and that was adjudged insufficient then, and so expressly pronounced to be by the Supreme Court: See Judge Kennedy’s opinion in 7 Watts, 171. It is insufficient still, therefore. It follows then that the pauper was well removed to the place of his last legal settlement, and order of removal, from which West Buffalo has .appealed, is affirmed. And that the counsel may have the benefit of our error, if it be one, we decide that the act of Assembly before cited, and under which we are proceeding, is constitutional.
    “And we order to be paid by West Buffalo to Walker township, for their reasonable costs and charges, the sum of $322.45.”
    Errors assigned: 1. The court erred in giving judgment in favour of Walker township.

      2. The court erred in declaring the act of Assembly of the 12th April, 1845, constitutional, and proceeding to hear the case under that act, as if it had never been tried and decided.

      Curtin, for West Buffalo,
    argued, that the act of Assembly of
    12th April, 1845, under which, as he alleged, the proceedings in the Quarter Sessions were had, was unconstitutional,- and cited Declaration of Bights, sec. 17; Constitution U. S. 1st art. sec. 10; Rex v. Cirencester, Burr. Sett. Ca. 18; 7 Watts, 171; Act of 18th June, 1836, entitled “An Act relating to the Support and Employment of the Poor.”

      McAllister and Burnside, contó.
    This case not ruled on its merits, when here before: 7 Watts, 171. The main question now is, the constitutionality of the act of 12th April, 1845. They cited the 17th sec. of the Declaration of Bights, in relation to ex post facto laws; and the 10th see. art. 1, Con. U. S., to the same point. They contended that the discharge of an order of removal was conclusive, but that the quashing of an order was not, and cited Burr. Sett. Ca. 394 and 425.
   Gibson, C. J.

The appellant made no proof of a settlement of the pauper in Walker township, but insisted on the decision of this court quashing a previous order of removal between the same parties, as conclusive on the appellee. To remedy the failure of justice, which the consequences of the judgment in that case would have produced, interpreted as it was, a private act of the legislature was procured, to open the question of settlement, and place it on its original ground; which has been attacked in the argument for a supposed Want of constitutionality, but unnecessarily, for it is clear that the question had never been closed, and the act was, therefore, a matter of supererogation.

Properly speaking, there are three modes of disposing of an order of removal in the Quarter Sessions. The first is to confirm it; and when that is done, it appears from Rex v. Cirencester, Burr. Sett. Ca. 18, Rex v. Bentley, Ib. 426, and some other cases, that the order of the sessions is conclusive against the appealing parish in favour of all the world. The second is to discharge it; and when that is done, the adjudication is conclusive between the parties litigant. The third is to quash it; and when that is done, the order is conclusive on neither. An order of removal is confirmed after an unsuccessful objection to it, for want of merits, or for want of form, or for want of regularity: it is discharged, or, as it is sometimes, said, vacated, after a successful objection to it on tbe merits : it is quashed for informality or irregularity of proceeding.

The order to quash is like a reversal on a writ of error, which leaves the parties where they began. Confusion in the use of these terms, has led to confusion of ideas as to the principles they serve to embody.' Though an order of removal has sometimes been carelessly said to have been quashed when it was discharged, the preceding distinctions were plainly taken by counsel and recognised by the court, in Rex v. Bradenham, Burr, S. C. 394, where it was suggested that previous orders of removal, which appeared by the minutes of the sessions to have been discharged, had in truth been quashed for an apprehended mistake of form; but as the fact appeared to be doubtful on the affidavits, the court refused to remit them to the sessions to have the mistake rectified; and on a motion to quash the subsequent orders, the justices, Denison, Foster, and Wilmot, in the absence of Chief-Justice Ryder, held, that as the previous orders of removal appeared to have been “ quashed on the merits'’ (an inadvertent expression), the order of the sessions was conclusive between the parties to it. It is obvious that the word quashed was used in this instance as the equivalent of the word determined; for had it been quashed for matter of form, the effect would have been different from that which was given to it by the court. But in point of circumstance, that is not the case before us; for it appears by the record of the former proceeding, that the order of removal was quashed by this court, not on the merits, but because the sessions had received parol evidence of the existence and contents of an indenture of apprenticeship, without having had sufficient proof of its loss or destruction, just as it would have been for an error apparent on the record, had the legislature directed the case to be brought up by certiorari and not by appeal. The order of confirmation therefore was right; but the court, thinking that our decision had settled the point of liability for costs and' charges before the act was supposed to have given the parties a new status, allowed the appellee no more than the expenses incurred by keeping the pauper afterwards. As, however, it was inconclusive, the appellee was entitled to charge as if the legislature had not interfered.

Order of the sessions and order of removal affirmed; the costs and charges to be paid to the appellee for maintenance, to be ascertained by this court on depositions; and the record to be retained in the mean time.


text:
    Hays’s Appeal.
    II. and P., each obtained and entered of record, a judgment in the Court of Common Pleas of the county of A., against the same defendant; that of II. being the eldest. After the entry of these judgments, the new county of B. was erected out of a part of the county of A.; and the boundary-line between said counties ran through the tract of land on which the said judgments were a lien. The judgment of P. was regularly revived in the county of A., and the lien thereof continued. The judgment of II. was never revived in the county of A.; but before the expiration of five years from the date of its entry in the county of A., it was transferred to the county of B., and’ there regularly revived; and that part of the tract of land situated in the county of B., under the boundary-line, was sold by virtue of judicial process issued on the judgment of H., in said county: Held, that the transfer of the judgment of H. to the county of B., under the act of the 16th of April, 1840, created a new lien from the date of its entry, but did not carry with it the lien of the original judgment, from the time of its entry in the county of A.: Held also, that the lien of the judgment of P., which was regularly revived in the county of A., continued to bind that part of the tract of land in the county of B., as it originally attached, and thereby obtained priority, and was entitled to a preference over the 'judgment of H.

      May 24. This was an appeal by William Hays, from tbe decree of tbe Court of Common Pleas of Centre county, in tbe matter of tbe distribution of tbe fund raised by a judicial sale of tbe real estate of George Carr, by tbe sheriff. It appeared, from tbe written statement of facts submitted to tbe auditor appointed to make distribution of tbe fund raised as aforesaid, that William Hays, tbe appellant, obtained a judgment against one George Carr, in tbe Court of Common Pleas of Centre county, wbicb was regularly entered of record in said court, on the 28th day of August, 1838. Three days after, to wit: on tbe 1st day of September, 1838, David Petriken also obtained and entered of record in tbe same court, a judgment against tbe same defendant. At tbe time of tbe entry of these judgments, Carr, tbe defendant, was tbe owner of a tract of land situated in Centre county, containing about four hundred and fifty acres, on wbicb said judgments became liens. In 1839, Clinton county was erected, under an act of Assembly, out of a part of Centre county; and tbe boundary-line between tbe said counties ran through tbe tract of land owned and bound as aforesaid. Under tbe said boundary-line as established, about two hundred and seventy acres of tbe tract aforesaid became situated in Clinton county. Tbe judgment of Petriken was regularly revived in Centre county, after tbe erection of tbe new county of Clinton. Tbe judgment of Hays was never revived in Centre county; but before tbe expiration- of tbe five years from the date of its entry, it was transferred, under tbe act of tbe 16th of April, 1840, to tbe records of tbe Court of Common Pleas of Clinton county, where it was regularly revived; and by virtue of judicial process, issued in that county, on said judgment, that part of tbe tract of land as aforesaid, situated in said county of Clinton, was sold by tbe sheriff of Centre county. Tbe auditor was of opinion that tbe judgment of Petriken was entitled to tbe fund for distribution, in preference to tbe judgment of Hays, and reported a distribution accordingly. To this report, tbe following exception was filed: — “Tbe auditor erred in not awarding tbe money raised by tbe sale of the real estate of George Carr to tbe judgment of William Hays; it being the oldest lien upon the land lying in Olinton county.” But tbe court overruled tbe exception, confirmed tbe report, and decreed distribution in accordance with it. From this decree, William Hays appealed to this court, and assigned tbe same for error here.

      ¿T. T. Sale, for appellant,
    cited West’s Appeal, 5 Watts, 87; Pampb. Laws, 1888 — 9; Act dividing Centre county; Act of tbe 16th of April, 1840, authorizing tbe transfer of judgments, &c.

      Macmanus and Petrilcen, contrb,
    cited Act of tbe 21st of June, 1839, Penn. Laws, 1838-9; Act dividing Centre county; Act 13th June, 1840, Penn. Laws, 692; Act of 16th April, 1840, Penn. Laws, 410; Act of 4th of April, 1843, Penn. Laws, 132; West’s Appeal, 5 Watts, 87; King v. Cantee, 1 Barr, 147; Penn. Dig. 6th ed. 605.

      May 29.
   Coulter, J.

Tbe error assigned is, that tbe court erred in their decree awarding tbe money to tbe judgment of David Petriken. But this court is of opinion that tbe decree was right.

Tbe land which produced tbe fund in court was situate in Centre county, when tbe judgments of Hays and Petriken were obtained. Tbe judgment of Hays, who appeals from tbe decree, was prior in date, and at tbe time of tbe entry of tbe judgments was entitled to preference. But tbe county of Clinton was erected, and tbe line between it and Centre county ran through tbe land which produced tbe fund. Petriken’s judgment was regularly revived in Centre county, and tbe lien continued. Hays’s judgment was never revived in Centre county; but before tbe expiration of tbe five years it was transferred to Clinton county, and there regularly proceeded on. It is contended, that by the transfer and subsequent proceedings, the lien of the original judgment in Centre was kept up. It must be observed, that the fund was produced by the sale of that part of the land situate in Clinton county, by process issued in that county on Hays’s judgment. The transfer of the judgment to Clinton county, under the act of 1840, created a new lien from the date of its entry, and did not carry with it the lien from the time of the entry of the judgment in Centre county; otherwise, judgments obtained in Clinton county bond fide when no lien existed on the records, would be defeated by a lien subsequently acquired. To give such interpretation to the act of 1840, would be contrary to its manifest intent, and destructive of the just rights of bond fide creditors. And when extended to other counties, as it must be if adopted in this case, would be productive of most extensive mischief. The lien acquired by the transfer under the act of 1840 must, therefore, date only from the time of its entry on the docket of the county to which it was transferred. Did then the lien of Petriken’s judgment, which was regularly revived in Centre county, continue to bind the land in Clinton county on which it originally attached? We think it did. The mere circumstance of the new county line running through the land, did not and could not divest the lien. The sci. fa. continued that lien to its original extent. The judgment was properly revived in Centre county, because part of the land was therein situated. The right of lien was a vested right, and it has been the custom to issue process in the old county, in many cases of the erection of new counties: and the sheriff has levied on land bound by the judgment situate in the new. As the act erecting Clinton county is silent on the subject, we must not allow well-defined rights to perish by too narrow an adherence to mere technical rules. Where there is a right there must be a remedy.

As, therefore, the judgment of Hays was allowed by the expiration of five years to lose its lien in Centre county, and as the transfer of the judgment to Clinton county only established a lien in that county from- the date ■ of the transfer, the judgment of Petriken obtained priority, and was entitled to preference.

Decree affirmed.