author: Mr. Justice Sterrett

text:
    Brandon versus Fritz.
    In July 1793, James Sillyman obtained eighteen warrants, of four hundred acres each, previously applied for by him in his own name, and in the names of others, as warrantees. These warrants called for land on the “north side of Mahanoy mountain, supposed to be in Berks county.” Surveys were made under these warrants in July 1793, by I-Ienry Vanderslice, deputy surveyor of Berks county, whose location was subsequently found to have been made upon territory in Northumberland county. Vanderslice’s surveys were returned 16th July 1793. On the 18th July 1793, a caveat was filed against granting patents thereupon, for the reason that the location interfered with older warrant rights. No citation ever issued upon this caveat. In October 1793, a re-survey of fourteen of the eighteen warrants was made by William Gray, deputy surveyor of Northumberland county, partly upon the same ground previously occupied by Vanderslice, though avoiding the interferences complained of. Gray's surveys were returned loth March 1794. Rive paténts were granted upon tracts of the Gray location in 1806; two in 1808; one in 1813, and three in 1865. Upon tracts in the Vanderslice location a patent was granted in 1833, and one in 1870. John Bitler obtained a warrant for one hundred acres of land in 1827, and caused a survey under it to be made by George Reber, D. S., in June 1829. The Bitler survey, as located by Reber upon the ground, interferes with the Gray surveys in the warrantee names of Christian Troxel, Christian Immel, Casper Thiel, and John Shomo. .
    The Thiel tract was sold to the county for non-payment of taxes in 1834, and sold by the commissioners at public sale in 1843. The Immel and Troxel tracts were sold to the county for non-payment of taxes in 1844, and sold by the commissioners at-public sale in 1849. The Bitler tract was sold to the county for non-payment of taxes at the same time with the Immel and Troxel tracts, in 1844, and sold by the commissioners at the same time with the said tracts, by public sale, in 1849. The deed from the commissioners to the purchaser of the Bitler tract was not delivered, nor the purchase-money paid by him, until five years after payment of the purchase-money and delivery of the commissioners’ deeds to the purchasers at the same sale of the Immel and the Troxel tracts. In an ejectment by plaintiffs claiming under the Bitler warrant and survey : Meld (affirming the judgment below), that the eighteen warrants applied for and issued at the same time were intended to form a block of surveys, and that they were so located is clearly shown by the return of Vanderslice July 1793. There was nothing to show that the Vanderslice surveys were ever accepted. A patent was issued by the Commonwealth for the Anna Maria Shomo tract, as located by Vanderslice ; this, if done understanding^, would be some evidence of the acceptance of his surveys. But it was clearly shown that the patent was issued by mistake, and contrary to the intention of the party in interest: Meld, further, that the caveat, although never acted upon, afforded sufficient grounds for refusing to accept the Vanderslice returns. Another reason for not accepting them was the fact that the surveys were not within his proper district ; though the latter fact would not have invalidated the title if his returns had been accepted and patents issued in pursuance thereof: Meld, further, that the acceptance of Gray’s surveys, as well as his authority to. make them, may be inferred from the fact that nearly all the tracts included in his block of surveys have been patented. Granting a patent according to a return, of survey, is virtually an acceptance of the return :. Meld, further, that the plaintiffs’ claim was properly restricted to the Christian Troxel tract, as located by Gray, and does not embrace any portion of the Casper Thiel, John Shomo or Christian Immel tract.
    March 19th 1880.
    Before Si-iarswood, ,C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.

      Error to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 237.
    Ejectment, brought in 1863, by Nelson Brandon and Henry Snyder against Andrew Fritz, Henry Fermier et al., to recover a tract of land in Union township, Schuylkill county, containing two 'hundred acres, or thereabouts, bounded by land surveyed to James Smith, Christian Immel, John Klinger, and others. Plea, not guilty. Edward S. Sillyman and James B. Boylan were subsequently added as plaintiffs.
    The case came before the Supreme Court on a previous writ of error. See Fritz v. Brandon, 28 P. F. Smith 342; s. C., 2 W. N. C. 164.
    The case was tried 20th January 1879, before Pershing, P. J. The plaintiffs asserted their title to the land in controversy by an •application of John Bitler, dated March 16th 1827, for one hundred acres of.land; a warrant dated 21st March 1827, to John Bitler, for one hundred acres of land, “being unimproved, adjoining land surveyed for James Smith on the east, and on the south, west and north vacant,” situate in the township of Union, in the county of Schuylkill; and a survey made under this warrant by George Beber, deputy surveyor, dated 22d June 1829,- for one hundred and ninety-nine acres sixty-three and a half perches, and allowance for roads; and the return, endorsed “Accepted the 17th October 1829.” * * * They then introduced, under objection and exception, parol evidence that John Bitler took up this land in trust for his two daughters, Hannah and Elizabeth, and that they furnished him with the money with which to. pay for the survey and the fees of the land office; also that John Bitler executed a deed of conveyance of the same to Hannah and Elizabeth in 1829 or 1830, and that this deed is lost; that Hannah Bitler sold her interest in the John Bitler tract to her sister, Elizabeth Bitler. Also, under objection and exception, parol evidence that 'Elizabeth Bitler paid the taxes upon this tract from the year 1829 to 1841; and tax receipts of the supervisor of Union township to Hannah and Elizabeth Bitler for thirty-eight cents for road tax in 1834, and for four and a half cents for the year 1840, dated Union township, 1839. * * * They then gave in evidence, under objection and exception, the transcript-book of triennial assessments for Union township, with assessments to Hannah and Elizabeth Bitler, as follows: For the years 1832, 1833 and 1834, “ one hundred acres mountain land, fifty acres do.;” for 1835, 1836 and 1837, “ sixty acres unseated land ;” for 1838 and 1839, “ Bitler, Elizabeth, one hundred and three acres land; Bitler, Elizabeth and Hannah, thirty acres land on the Green Mountain,” and for 1840, “ Bitler, Elizabeth and Hannah, thirty acres land on the Green Mountain;” for. 1841, “thirty acres unseated land;” for 1842, “three hundred acres land unseated;” for 1843, “Bitler, Elizabeth, one hundred and three acres of land; Bitler, Elizabeth and Hannah, three hundred acres unseated land.” The plaintiffs alleged that these assessments to Hannah and Elizabeth Bitler refer to the land in controversy; also that this land was assessed as seated land until the year 1841, after which date it was transferred to the unseated list without notice to Hannah and Elizabeth Bitler, the owners. They introduced under objection and exception, the testimony of a clerk in the office of the county commissioners, to prove that the list of assessments given in evidence was a seated list; it appeared, however, upon cross-examination, that the list was a “ mixed list,” in which there were assessments both of seated and of unseated land.
    They then gave in evidence, under objection and exception, a deed dated 18th December 1858, Elizabeth Bitler to Nelson Brandon, for “ all her right, title and interest of, in, and to any and all real estate in the county of Schuylkill to which she may be entitled;” a deed dated 16th April 1860, Elizabeth Bitler to Henry Snyder, for “ the undivided one-half part of a certain tract in Union township, Schuylkill county, containing one hundred and ninety-nine acres sixty-three and a half perches, and a release dated 17th April 1860, Nelson Brandon to Henry Snyder, for the same. Then also two deeds, conveying respectively undivided interests in this tract, the one dated 16th January 1872, from Henry Snyder to James B. Boylan, and the other dated 23d December 1872, from Nelson Brandon to Edward S. Sillyman.. They introduced, under objection and exception, the testimony of witnesses to prove that Nelson Brandon had exercised acts of ownership upon the John Bitler tract; that he had built a log house upon it, and had shafted for coal there. They then gave in evidence the receipt of Henry S. Magraw, state treasurer, dated 9th August 1856, to Nelson Brandon, for $73.40, purchase-money and interest due to the Commonwealth upon one hundred and ninety-nine acres sixty-three and a half perches, surveyed in the name of John Bitler, and $10 for patent fees. Also transcript of Union township, from 1854 to 1860, with divers assessments of seated and unseated lands, to John Bitler, deceased, Nelson Brandon and Hannah and Elizabeth Bitler, and, under objection and exception, treasurer’s extract book, to show payment of taxes upon the John Bitler tract from 1854 to 1857, inclusive. The plaintiffs then rested.
    The defendants gave in evidence an application of James Silly-man, in his own name and in the names of others, dated 1st July 1793, for eighteen tracts of land, of four hundred acres each; eighteen warrants, dated 1st July 1793, each for four hundred acres of land, “ on the north side of Mahanoy Mountain, supposed to be in Berks county,” in the warrantee names.of James Silly-man, Susannah Sillyman, Casper Thiel, Mary Thiel, Henry Thiel, Christian Immel, George Rose, Catharine Rose, Jacob Kelchner, Maria Kelchner, Ann Maria Shomo, John Shomo, Christian Troxel, John Klinger, John Witman, Mary Witman, Jacob Yeager and William Witman; and surveys made in October 1793, by William Gray, deputy surveyor of Northumberland county, under fourteen of these eighteen warrants; among them those in the warrantee names of Christian Troxel, Christian Immel, Casper Thiel and John Klinger. Upon each survey was the endorsement, “ Another return on this same warrant made by Henry Vanderslice, D. S., of Berks county, located in another place.” They gave in evidence the old purchase-money voucher and a copy of the purchase-money blotter, “ J. Sillyman, &c., July 1, 1793, 18 w’ts of 400 each; 7200 acres, paid in specie 180i. Fees 91,” and an official connected draft of these fourteen surveys; also a certified copy of the entry of the commission of William Gray, dated 22d April 1785, to be deputy surveyor of all that part of Northumberland county lying east of the river Susquehanna. They proved, by a certified list of returns, that these fourteen surveys were returned to the land office in a block by William Gray, on the 15th March 1794.
    They gave in evidence patents to John Meyer, dated 10th December 1806, for each of the tracts respectively, as surveyed by Gray in the warrantee names of James Sillyman, Susannah Sillyman, Henry Thiel, Mary Thiel and George Rose; patents dated 13th January 1808, to John Meyer, for the Catharine Rose and the Jacob Kelchner tracts respectively, as surveyed by Gray; and a patent dated 25th January 1813, to Jacob Trout, for the Casper Thiel tract, also conforming to the survey of William Gray; these, as tending tc show the completion of title to the Gray block of surveys and the acceptance of them by the land office. They then proved assessments for Union township, Schuylkill county, for the years 1841-3, in the names of Christian Troxel, Christian Immel and John Klinger respectively, “four hundred aires unseated land;” a sale by the county treasurer to the county commissioners of the Troxel, Immel and Klinger tracts, for non-payment of taxes, on the 10th June 1844, and gave in evidence a deed for each of them, dated respectively 13th July 1844, from the treasurer to the commissioners. They proved a sale of the said three tracts by the commissioners, on the 16th July 1849, to John W. Roseberry, B. Nehff and II. Krebs, and gave in evidence deeds for the same from the commissioners to Roseberry, Nehff and Krebs, dated, respectively 13th August 1849. The plaintiffs objected to the commissioners’ deeds that they do not show that jhe pre-requisites of the Acts' of Assembly relative to the sale of unseated lands had been complied with, and also that the deed of the Klinger tract was irrelevant, as not referring to land in dispute. The court admitted the deeds in evidence, and sealed a bill of exceptions for the plaintiffs. The defendants further gave in evidence assessments of Union township for 1832 and 1833, in the name of Casper Thiel, “ four hundred acres unseated lands,” a treasurer’s sale of the Thiel tract to the commissioners, for nonpayment of taxes, 9 th June 1834, and a deed for the .same, dated 17th June 1834, from the treasurer to the commissioners; a sale of the Thiel tract on the 13th February 1843, by the commissioners, to Benjamin F. Taylor and John Clayton, and a deed for the same from the commissioners to Taylor and Clayton dated 15th March 1843. The plaintiffs objected to this deed of the commissioners, as to those previously offered. The court admitted it and sealed a bill of exceptions. The defendants then proved that the title of Roseberry, Nehff and Krebs to the Immel and the Troxel tracts and the northern half of the Klinger tract, and the title of Taylor and Clayton to the Thiel tract, have vested, by sundry mesne conveyances of the same, in John II. Brown. They then gave in evidence, under objection and exception, a sale of the Casper Thiel tract by the sheriff of Northumberland county, and deed poll 'from him dated 22d August 1806, for the same to John Meyer, and showed that the title of J ohn Meyer to the said tract has become vested, by mesne conveyances, through Jacob Trout and others, in John H. Brown; also a lease dated 13th April 1863, John H. Brown to IIenry Fermier for the Christian Toxel', Christian Immel and Casper Thiel tracts, and the northern half of the J ohn Klinger tract, under the Gray survey, with renewals of this lease every year, the last renewal from 13th April 1878, to 13th April 1879. They then proved assessments and payments of taxes upon the Casper Thiel, Christian Immel, Christian Troxel, and John Klinger tracts, from the date of the commissioners’ sale of the same respectively to the year 1860; albo a treasurer’s sale for non-payment of taxes for 1860 and 1861, of the Thiel, Immel, Troxel and Klinger tracts to Lewis Reeser, on the 9th June 1862, and gave in evidence deeds for the said four tracts, dated respectively 1st September 1862, from the treasurer to Lewis Reeser; also patents for the Immel, Troxel, and the northern half of the Klinger tracts to Lewis Reeser, dated respectively 28th-January 1865.' The plaintiffs objected to these patents that they were executed after suit brought. The court admitted them, and sealed a bill of exceptions. The defendants then showed that the title of Lewis Reeser in the Immel, Troxel, and the northern half of the Klinger 'tracts has vested in John H. Brown; this to show the claim of title in the. defendants to the land in controversy, and that the title held by the patentee tq these tracts is not an outstanding title. They then proved assessments to Hannah and Elizabeth Bitler in 1841, 1842, and 1843, upon three hundred acres of unseated land in Union Township, alleged by the plaintiffs to refer to the land in controversy, also a sale of the same for non-payment of taxes by the treasurer to the commissioners on the 10th June 1844, and a sale thereof by the commissioners on the 16th July 1849, to C. M. Straub. They proved that Straub did not pay the purchase-money and take his deed until 1854, five years subsequent to the payment of the purchase-money to the county by Roseberry, Nehff, and Krebs for the Christian Troxel tract. They proved that this tract was conveyed by Straub to Elizabeth Bitlér, “ as tending to show that she claimed the land in controversy under a worthless tax title to Straub, and that it was this title that she subsequently conveyed to Brandon and Snyder in 1858 and 1860.” They introduced the testimony of surveyors that the lines of the block of Gray surveys are clearly defined by marks still existing upon the ground, which conform to t'he calls of the original returns made by Gray, as also to the official location of eleven older surveys adjoining the Gray block, of which the defendants gave in evidence a certified connected draft. The surveyors testified that the John Bitler tract interferes with the Christian Troxel, the Christian Immel, the Casper Thiel, and the John Shomo tracts as located by Gray. It appeared from the testimony of surveyors that the lines had been skilfully shortened in the official return of the John Bitler survey, so as to conform to the quantity of land returned, one hundred and ninety-nine acres sixty-three and a half perches, though that tract, as actually located, embraces two hundred and ninety-nine acres sixty-three and a half perches of land. It also appeared that the territory upon which the surveys of Yanderslice and those of Gray were made was ascertained to have been in Northumberland county by the line run for the purpose of defining the limit of that county in accordance with the Act of 1795, and that this territory became a part of Schuylkill county in 1818. Defendants rested.
    In rebuttal, the plaintiffs offered certified copies of eighteen surveys, made in July 1793, by Henry Yanderslice, deputy surveyor of Berks county, and returned by him 16th July 1793, under the same warrants issued upon the application of James Siilyman, dated 1st July 1793, given in evidence by the defendants. To be followed by evidence of the location of these surveys, of their return into the land office, and of their having been filed without objection. To be. followed by evidence that the Commonwealth granted patents upon the John Shomo survey, as made by Yanderslice, and rejected the John Shomo, Ann Maria Shomo, 'and the Casper Thiel surveys, as made by Gray, but subsequently adopted the Gray Casper Thiel, pursuant to a -warrant of acceptance issued by the surveyor-general in 1813, before the patent granted thereon to Jacob Trout; that such patent was only in pursuance of such warrant of acceptance and upon payment of the whole purchase-money, as if no original warrant had been issued; that, in 1812, the board of property declared the Gray Casper Thiel survey void, because made upon a warrant exhausted by reason of the Vanderslice survey of the same.; that neither Christian Immel, Christian Troxel, Casper Thiel, John Klinger, John Shorno, or James Sillyman ever asserted any claim of title to the surveys made by Gray in their names respectively as. warrantees, or ever paid taxes thereon. To be followed by evidence from the land office that the board of property never granted any authority either to make, or to accept, the Gray surveys; that the land office does not show a list of accepted surveys applicable to those of Gray; there is no express evidence that it ever adopted the Gray surveys except as to the tracts patented in 1806 and 1808; and that it has treated them,-ever since, as void against those of Vanderslice. To be followed by evidence that the Christian Troxel tract was first assessed in 1818, was sold to the county in 1822 for non-payment of taxes, and that in 1827 or 1828 the county entered upon its records that there was no land to satisfy the assessment of the Christian Troxel tract.
    The defendants objected to this offer, which after argument, the court rejected, and sealed a bill of exceptions for the plaintiffs. But subsequently, upon suggestion by the defendants that they were “ willing the evidence should go upon record, and the legal effect of the testimony be pronounced by the court at the conclusion of the case,” the court allowed the plaintiffs to introduce the evidence as set forth in their offer. The plaintiffs then introduced the testimony of a clerk in the department of the interior to prove, from the record, that the certificate shown by the defendants is not a certificate of accepted surveys. It appeared, however, upon cross-examination, that it was not the practice in the land office, before the year 1800 or 1801, to make a note of acceptance upon the survey itself. I.t further appeared that these two sets of surveys have been kept together, upon the files, a Gray survey inside a Vanderslice survey, or vice versa. The plaintiffs followed this testimony by certified copies of the returns made by Vanderslice, in July 1793, upon the eighteen warrants issued on 1st July 1793, to James Sillyman, as contained in their offer, and a certified connected draft of these eighteen tracts of land, “ situate on the branches of the Catawissa, on the north side of Mahanoy mountain, county of Berks.” Eleven of these surveys bear the endorsement, “ See another return on the same warrant, by William Gray, D. S. of Northumberland county,” and .similar endorsements are upon the others, except the John Witman, Jacob Yeager, William Wit-' man and Mary Witman, which were located and returned by William Wheeler, D. S., in 1837. They then gave in evidence a patent, dated 11th December 1833, for the John Shorno tract, as surveyed by Vanderslice, and a patent dated 19th April 1870, for the Ann Maria Shorno tract as surveyed by Vanderslice. It appeared, however, from the testimony of the patentees of the Ann Maria Shomo tract that they claimed this tract as surveyed by Gray, and lived upon it, and that the patent they obtained from the Commonwealth was not what they wanted, but related to land they never claimed. The plaintiffs then gave in evidence a certified copy of the proceedings of the board of property, dated 13th November 1812, which recites that there was “an irregularity” in the second return (i. e., the Gray return) of the Casper Thiel survey, and directs the secretary of'the land office to issue a warrant to the surveyor-general to accept the said survey, made the 23d October 1793, “ inasmuch as the said Casper Thiel, and those claiming under him, have held the land from that date to the.present time ; and that a patent issue thereon to Jacob Trout, he paying the purchase-money and interest due from the 1st July 1793.” They gave also a certified copy of the order from*the secretary of the land ofiice to Andrew Porter, surveyor-general, directing him to accept the Gray survey of the Casper Thiel tract, this to show that the board of property treated the Gray survey as void, and for the purpose of rebutting the defendants’ general offer of patents as tending to show acceptance of the Gray surveys prior to the date of such patents. They gave further the Gray returns of the surveys made by him upon the warrants to Ann Maria Shomo and John Shomo respectively, with endorsement upon the former : “ This return rejected by the board of property as not lying in the same county called for by the warrant;” and upon the latter: “This return rejected by the board of property, there being another return on the same warrant for lands in the county of Berks.” They then gave in evidence a warrant to John Bitler, dated 9th April 1811, and a survey upon the same, dated 11th May 1811, to John Bitler, for two hundred and forty-three acres twenty-five perches, 'and allowance. The survey calls for John Bitler, in the right of George More, of John Klinger, of Mary Thiel, of George Rose, of Catharine Rose, and of Maria Kelcher. Plaintiffs allege that this tract, called, “the long John Bitler tract,” interferes with the Gray surveys of the Christian Immel and the Maria Kelchner tracts. Several surveyors testified, however, that the interference alleged arises from a local tion of this tract with reference to a line called “ Meyer’s line,” of “ the line of 1806,” which locates the southern boundary of the Gray block of surveys eighty perches north of the lines of older surveys adjoining the Gray block, which are called for in the original returns made by Gray, and in the patents granted to John Meyer. It also appeared that “ the line of 1806” is not an official line, and that “the long John Bitler tract” will not interfere, as alleged, if located by its calls in connection with the official lines as run and marked by Gray. The plaintiffs then gave in evidence, under objection, the court reserving the legal effect of the offer for future discussion, assessments of Union township to show that the Christian Immel tract was not assessed from 1811 until 1841; also, that the Christian Troxel tract was first assessed in 1819, and a sale of the Troxel tract by the treasurer to the commissioners in 1822 for non-payment of taxes, and a sale by them to John Wickersham in 1831, with'a deed dated 23d'March 1831, from the commissioners to Wickersham for the Christian Troxel tract. The deed was acknowledged, but never delivered; this to show that the assessments of 1841, 1842 and 1843 were void, and the sale thereunder by the treasurer to the commissioners- passed no title. They also showed that the Christian Troxel tract was not assessed from 1827 until 1841.
    In sur-robuttal the defendants gave in, evidence, under objection and exception, a caveat dated 18th July 1793, filed by John Kunckel and Aaron Bowen, against granting patents for lands situate in Catawissa Yallev, Northumberland or Benks county, granted by eighteen warrants dated 1st July 1793, in the warrantee names of James Sillyman, Susannah Sillyman, &c.: “ The said ICunckel and Bowen alleging that they have warrants dated 19th May 1792, in the names of Charles Shoemaker, George Raver, &c., for a part of the same land;” offered, under objection and exception, as a caveat filed against issuing patents upon the surveys made by Vanderslice. The defendants also gave in evidence files of newspapers published under date of June 7th and 8th 1849, as also for five consecutive weeks following those dates respectively, to show affirmatively, by the advertisements contained in them, that the commissioners’ sale of the Bitler, Immel, Troxel and Klinger tracts, held July 16th 1849, was a public sale, and was duly advertised.
    This was followed, upon the part of the plaintiffs, under objection and exception, by a certificate from the office of .the surveyor-general, dated 26th November 1873, that there is no record .of any citation ever having been 'issued upon the caveat given in evidence by the defendants, or of any proceedings upon the same by the board of property.
    The court below, Pershing, P. J., charged, inter alia: “You have the evidence in regard to the location of these fourteen Gray surveys. Mr. Hawley, a surveyor, says : I have not a particle of doubt the Gray surveys were located where claimed. The east line' is well marked, extraordinarily so, after this 'lapse of time.’ This is the testimony of Mr. Hawley, a very intelligent witness, produced upon the part of the plaintiffs, and it is the testimony of all the surveyors, with the exception of Stauffer, who did not examine it. There does not appear to be any controversy as to the location of these fourteen Gray surveys. The effect of the confirmatory act of the Commonwealth in granting patents on part of these Gray surveys, extends to the whole block, and is not confined to those only for which the patents were issued: Fritz v. Brandon, 28 P. F. Smith 351. One effect of a patent is to merge all previous proceedings, and to waive, upon the part of the Commonwealth, whatever informalities may have occurred, so that, upon the granting of it, the title of the patentee as against the Commonwealth becomes complete both in equity and in law. They (the plaintiffs) have offered in evidence the same warrants offered by the defendants, with returns upon them made by Henry Vanderslice, in July 1793, about three months before the surveys were made by Gray, with evidence of the return of these surveys into the land office some eight months prior to the time that Gray made his return. Here arises what is, perhaps, the main controversy in this case. Which of these surveys, those made by Gray or those made by Vanderslice, are the valid surveys ? They cover to some extent the same ground. When this question was before the court the last time, we ruled, as a question of law, that the Vanderslice surveys were the valid surveys, for the reasons, that they were the first made and returned into the land office; that tbe rule of law was that, a survey having once been made upon a warrant and returned, the warrant was exhausted, and the second survey upon the same was simply void. We, therefore, instructed the jury squarely, that the Gray surveys were void and that the Vanderslice surveys were valid. The Supreme Court has, just as squarely, decided that we were in error in that instruction, and that the Gray surveys were valid and that the Vanderslice surveys were abandoned. It has been pressed very strongly upon the court what our duty is under the circumstances of this trial. It has been urged that the validity of the Gray and the Vanderslice surveys is a question that should be submitted to the jury upon the facts as they now stand. It is claimed that new facts have been presented, the effect of which should be to change the decision'of the Supreme Court, rendered, it is said, under a misapprehension of the facts as they actually existed. It has been repeatedly ■ said in your hearing, that the chief justice not only misapprehended the facts of the case, but stated, in his opinion, matters which the evidence showed were not fact's at all, and that, therefore, the decision of the Supreme Court should not bind us in this cáse. It strikes us that there has been very little new evidence introduced into this trial upon this particular, question. Stress has been laid upon the fact that, in the paper-book of the defendants presented to the Supreme Court, their reference to the certificate of the land office as to the Gray surveys, contained in it the words ‘accepted surveys.’ It has been argued that the Supreme Court was misled by this wrnrd accepted. The fact is that both the Gray and the Vanderslice certificates are alike in their language. Tbe plaintiffs, however, directed the attention of the Supreme Court to the fact that the word accepted did not appear in the certificate, and also that the surveys made by Vanderslice were first returned, and' that the evidence of their acceptance was precisely that which the defendants offered of the acceptance of the Gray surveys. The patent to Trout, of the Thiel tract, and the proceedings preliminary to granting it, were before the Supreme Court. So also, the fact that two of the Gray surveys were rejected. The John Shomo and Ann Maria Shomo surveys -were rejected, and the reasons for their rejection wire printed in the paper-book of the defendants. The caveat was also before the Supreme Court, and was printed just as it was read here. It is alleged that it was a mistake to assert that the Vanderslice surveys interfered with any of the lands mentioned by the caveator, and that the Supreme Court was misled by the allegations of this caveat. It does, however, appear in evidence that the Vaderslice surveys interfered with older warrants in the names of Martin Rutherford and others, warrants which were located upon the ground prior to the making of the Vanderslice surveys. We do not think that the Supreme Court were misled by the caveat when they disposed of this case on the writ of error taken to the former judgment of this court. Our error was not the taking of this question from the jury, but it consisted in ruling that the Gray surveys were invalid. ‘ This the Supreme Court corrected, by ruling that the Vanderslice, and not the Gray, were the invalid surveys. This is repeated so often, and with such emphasis, throughout the opinion of Chief Justice Agnew, that it is impossible for me to come to the conclusion that I should, in the discharge of my duty, under the evidence as it is now presented, submit to you, as a question of fact, whether the Gray or the Vanderslice surveys were the valid surveys.
    “Following the evidence of the defendants, we come to the question of the tax-sales. The requisites of a tax-sale are: That the land must be unseated at the time of the assessment; that a tax appears to have been, and in fact was, assessed by the proper officer; that it was due for one whole year and remained unpaid. Unseated lands assessed are the debtor for the taxes; it is immaterial in w'hat name they are assessed, if it is the same land that is taxed and sold, and was at the time unseated. The sale in the name of a younger warrantee will pass the title, it not being assessed at all in the name of the first warrantee. Upon this subject, as bearing upon some of the questions introduced, it has been held by the Supreme Court that, ‘ the constructive possession of land, not actually occupied, follows the legal title;’ that is, in contemplation of law, every man is in possession of the land he owns, until ousted by an intruder, and abandonment of title is not presumed from non-entry nor from neglect to pay taxes. ' The law does not limit a man’s title to the possessio pedis. Inchoate rights may be abandoned, but abandonment is scarcely predicable of perfect titles. And though it is an owner’s duty to pay taxes, what if he does not ? The law, instead of presuming his "title abandoned, seizes it and sells it to the highest bidder: Mayor of Philadelphia v. Riddle, 1 Casey 263.
    “ It appears that, in 1841, 1842 and 1843, the Christian Troxel, Christian Immel and John Klinger tracts were assessed with the road, state and county taxes, and that, by the treasurer’s sale of the 10th June 1844, these tracts were sold to the county, and deeds delivered in pursuance of the Act of Assembly. It further appears that the commissioners held them for five years, as required by the Act of Assembly, and that, upon the 16th of July 1849, they were sold by the commissioners of the county to John W. Roseberry, Benjamin Nehff and Henry Krebs, who paid their purchase-money and received their deeds upon the 1st of September 1849. A question has been raised as to the validity of this sale. It appears from the evidence, that there was a sale of the Christian Troxel tract, in 1822, to the county, and it is claimed that it could not be assessed for taxes during the time it was the property of the county, only to the extent of the five years limited by the Act of Assembly, during which time the county held the land for redemption. The subsequent assessment, no doubt, was an irregularity, which possibly may be explained as a similar transaction, to some extent, is explained in Groodman'u. Sanger, 4 Norris 42. Russel v. Werntz, 12 Harris 347, is a case where the county taxed land held by itself. If was there held that ‘whilst the title was in the county, it could not be prejudiced by the payment of - taxes other than those for which it had been- sold. If the county taxed lands the title of which was in itself, and parties paid the taxes in ignorance of the fact, they may, perhaps, have an equitable right to reclaim their money; but they cannot invalidate that title in the hands of a bona-fide purchaser from the county.’ It is claimed upon the part of the plaintiffs, that they have a right to recover for that portion of the John Bitler survey which interferes with the Casper Thiel, amounting to about thirty-six acres. They claim for that portion of the Bitler, included within the Thiel survey, that the taxes were paid by Hannah and Elizabeth Bitler, in 1831 and 1832, and that, therefore, the sale to the county in 1834, and afterwards by the county to Taylor and Clayton, conveyed no title to that portion of the land on the Thiel survey included within the lines of the Bitler survey. The rule upon this subject appears to be this: ‘Proof of the actual payment of the tax avoids the sale:’ Hunter v. Cochran, 3 Barr 105; Reading v. Finney, 23 P. F. Smith 472. They, the plaintiffs, claimed that the sale of the Thiel was invalid, because the Act of Assembly was not complied with. In the case of Lee v. Jeddo Coal Co., 3 Norris 74, the Supreme Court held that ‘the recitals in the deeds of county commissioners made in pursuance of a sale of land for taxes, prima facie raise a presumption that the commissioners did their duty and made the sale according to law:’ McCoy v.
      Michew, 7 W. & S. 386. I am inclined to think, from the evidence, it is a fair presumption after the lapse of thirty years or more, that these public officers did their duty. In Lee v. Jeddo Coal Co., supra, the question as to the conclusiveness of such a presumption is left open. Here, in the absence of evidence to overthrow' it, we think the maxim omnia prcesumuntur has proper application. With regard to the assessments, the question has been raised and argued, that the sale of the Troxel tract as unseated, was void because it was upon the seated list. From the books in evidence and the testimony of Mr. Aregood, it would seem that it was upon what was called ‘the mixed list;’ a list which contained both seated and unseated lands. It was assessed upon this list as unseated. We say to you, that if this land was entered on what is called the ‘mixed list,’ if there found assessed as unseated and sold as unseated, the taxes not having been previously paid, it would convey a good title. The court cited in this connection: Laird v. Hi ester, 12 Harris 452; Thompson v. Chase, 2 Grant 367, and Russel v. Werntz, 12 Harris 337. That the taxes for 1841, 1842 and 1843,-were not paid, is not disputed.
    “ There is another question of importance in this case which was not raised at the former trial: What have the plaintiffs sued for? What land is embraced in their prsecipe and writ? The land described in the prsecipe is ‘ a tract of land situate in Union_ township, containing two hundred acres or thereabouts, bounded by land surveyed to James Smith, Christian Immel, John Klinger, and others.’ In the survey the call is for the Casper Thiel on the north. In the prsecipe, reference is made to the deed from Elizabeth Bitler to Snyder, which, it is claimed, is also a part of the description. The adjoiners called for by the prsecipe, including the deed, are James Smith, Casper Thiel, Christian Immel, and John Klinger, all older surveys, and all located upon the ground by the .testimony of the surveyors. It is claimed, upon the part of the plaintiffs, that they have a right to run beyond the Immel. The land they claim cuts into the Thiel and runs beyond the line of the Immel some on to the Shomo. It is claimed that the survey upon the ground is the true survey without regard to the calls for adjoiners. The official distance for the east and west line between the Thiel and the Troxel is three hundred and twenty perches, and the distance as given on the Bitler is three hundred and ten. Commencing at the Smith and running three hundred and ten perches towards the Immel will not reach the Immel tract. But plaintiffs claim the right to run three hundred and fifty perches, and thus run upon the Immel and the Shomo tracts and include two hundred and ninety-nine acres. It is argued that, these being the lines upon the ground of the John Bitler survey, they must control the calls for the adjoiners, and that the adjoinei’s cannot control the lines upon the ground.

      “ It is to bo remembered that the James Smith is. an older survey and its place is well established. The Casper Thiel is an old survey, patented in 1813; while the survey of the Bitler was only made in 1829 and calls for the Thiel. The fact that the Thiel was patented in 1813, was .notice to Bitler where the lines of the Thiel survey were -located, and, of course, he would have no right, to run upon any portion of the Thiel in making his survey. The line of 1806, known as ‘ the Meyer line,’ was introduced in this , connection. This line, under the testimony of the surveyors makes great changes in the location of many tracts, and interferes with a large body of surveys. It is only a matter of conjecture for what purpose the line was run, but we think it has nothing to do with, and could not change the location of these surveys as originally returned to the land office. The position taken by the plaintiffs in this case, in reference to ‘ the Meyer line’, of 1806, is like that taken by the plaintiffs in Wagner v. Wagner, 18 P. F. Smith 392. Whatever was the purpose in running this line," it is not claimed it was done by any official authority. We instruct you, therefore, that it can have no weight in deciding the present litigation. . But, as bearing directly upon this question of what is included in the plaintiff’s description, we have a decision of the Supreme Court where it is distinctly held that: ‘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 applicable to conveyance as well as to official surveys: Cox v. Couch, 8 Barr 154. This has been followed in other cases: Petts v. Gaw, 3 Harris 222. If our construction is correct this controversy is narrowed to the interference -of the John Bitler with the Christian Troxel survey. For, following the description contained in the plaintiffs’ praecipe and deed, and beginning at the James Smith and running along the Casper Thiel to the Immel and then, by courses and distances, back to the Smith, would not interfere with the Thiel, the Immel or the John Shomo. We are constrained to say to you that, upon the whole evidence in this case, the defendants have a right to a verdict at your hands. In saying this, we negative the points of the plaintiffs.”
    Exception taken by plaintiffs and bill sealed.
    Verdict for the defendants as directed by the court, and judgment thereon. The plaintiffs took this writ, and filed twenty-six assignments of error, among which were the following:
    5. The court erred in negativing the plaintiffs’ third point, which was : That if the jury believe that the assessment to Hannah and Elizabeth Bitler from 1832 to 1840 inclusive, embraced the John Bitler survey of 1829, and that the said assessment was in the seated list and claimed by Elizabeth Bitler to be so assessed, then the assessment of the same land by any name in the unseated list without notice to her-, the then owner, was void and the treasurer’s sale of 1844, based on such changed assessment, was void as to her and passed no title to the purchasers at the commissioners’ sale of 1849.
    12. The court erred in negativing the plaintiffs’ twelfth point, which was: That the defendants have shown no title to the Casper Thiel at the time they entered upon the land in suit, and when this suit was brought, that the alleged sale and conveyance by the commissioners to Taylor and Clayton, by the deed, dated 15th March 1843, pursuant to sale made 13th February 1843, does not recite any advertisement or notice of the sale, or that the sale was a public one, or made according to law, nor has any evidence been given to show any such advertisement or notice, or that the sale was not a private sale; and that a sale so made would not divest any title of the owners of the John Bitler warrant and survey in suit so far as it interferes with the Casper Thiel.
    13. .The court erred in negativing the plaintiffs’ thirteenth point, which was: That the defendants have given in evidence the assessments, in the names of Hannah and Elizabeth Bitler, and a treasurer’s sale, in 1844, by the county treasurer to the county of Schuylkill, and a sale, in 1849, by the county to O. M. Straub; then, if the court hold the sale of 1849 valid against the county, such deed vested in C. M. Straub so much of the Casper Thiel as the defendants admit to have been interfered with by the John Bitler survey in suit, and the title having been vested in the plaintiffs before suit brought they are entitled to recover that part of the land in suit which the defendants admit to be interfered with by the Gray location of the Casper Thiel.

      F. W. Hughes and N. W. Bechtel, for plaintiffs in error.
    The Vanderslice surveys were regularly made and returned with the consent of the warrantees, and the title of the warrantees to land in these surveys, not previously appropriated, was complete against everybody but the Commonwealth, who held the legal title as security for patent fees: Drinker v. Holliday, 2 Yeates 87; Porter v. Ferguson, 3 Id. 60; Hunter v. Meason, 4 Id. 107; Adams v. Jackson, 4 W. & S. 78; Bunting v. Young, 5 Id. 188.
    These lands lie in the old purchases. The 15th section of the Act of April 8th 1785, and the 6th section of the Act of April 3d 1792, Purd. Dig. 898, 902, apply only to the new purchases or to purchases from the Indians after 1768; Smith v. Wells, 1 Yeates 286 ; Shields v. Buchanan, 2 Id. 219; Funston v. McMahon, 2 Id. 245; Harris v. Monks, 2 S. & R. 557; McNamara v. Shorb, 2 Watts 288, 292; Prout v. Bard, 10 Id. 379; Goddard v. Gloninger, 5 Id. 222.
    The Act of 1795, which provided for a commission to mark the line between Northumberland county and Berks county, rendered valid all surveys previously made by any deputy surveyor. That Vanderslice was out of his district, does not invalidate the surveys made by him in 1793.
    The caveat filed by Kunckel and Bowen was not directed against the surveys made by Vanderslice, but against the granting of patents to Sillyman and the other warrantees, for the lands granted them by warrants dated 1st July 1793. The reason assigned by the caveators is, that they had other warrants for a part of the same land; they do not allude to any surveys, whether of Vanderslice or of any other person. No subsequent survey upon the land called for in the Sillyman warrants could remove this objection ; hence Gray’s surveys were nugatory. The opinion of the learned chief justice, reversing the judgment of the lower court, at the former hearing of this case, is predicated upon an erroneous assumption of facts: Fritz v. Brandon, 28 P. F. Smith 350.
    A second survey, made without a previous warrant of re-survey from the surveyor-general or the board of property is void : Drinker v. Holliday, supra; Porter v. Ferguson, supra; Deal v. McCormick, 3 S. & R. 343; Oyster v. Bellas, 2 Watts 397; Cassidy v. Conway, 1 Casey 240; Bellas v. Cleaver, 4 Wright 260 ; Hughes v. Stevens, 7 Id. 202; Improvement Co. v. Munson, 14 Wall 442.
    At the end of twenty-one years, after a survey has been made and returned into the land office, a presumption of law arises that it was regularly made on the ground; but it is denied that this presumption extends to the authority to make it.
    The Gray surveys, being unofficial, were not notice to subsequent. appropriators: Barton y. Smith, 1 Rawle 403; Manhattan Coal Co. v. Green, 23 P. F. Smith 320. Where a survey is removed, or shifted to lands not described in the warrant, title begins from the time the survey is returned and accepted: Lauman v. Thomas, 4 Binn. 58; Moore v. Shaver, 6 S. & R. 133. The Immel and Troxel tracts were sold by the commissioners for non-payment of taxes, under different assessments, on the same day. These sales were to effect a payment of the taxes by each claimant under his own assessment, and left each claimant’s title just where it was before: Hunter v. Albright, 5 W. & S. 423; Diamond Coal Co. v. Fisher, 7 Harris 267; Fritz v. Brandon, 28 P. F. Smith 356. Though a patent conveys the legal estate, as against the Commonwealth, it will not prevail over a prior estate by warrant and survey : Maclay v. Work, 5 Binn. 154; Gonzalus v. Hoover, 6 S. & R. 118; Woods v. Wilson, 1 Wright 379. A patent inures to the benefit of the owner of the title, though issued to another. Urket v. Coryell, 5 W. & S. 60. A patent obtained through ignorance of the land office, does not legalize an unauthorized survey: Burd v. Seabold, 6 S. & R. 137. Land that has been assessed upon the seated list, upon which taxes have been paid as upon seated land, cannot be transferred to the unseated list, assessed and sold as unseated land, without notice to the owner: Larimer v. McCall, 4 W. & S. 133; Milliken v. Bene diet, 8 Barr 169; Com. Bank v. Woodside, 2 Harris 404; Stewart v. Trevor, 6 P. F. Smith 374; Bechdle v. Lingle, 16 Id. 38.
    . James Ryon and George R. Kaercher (with them S. JR. JKaercher, John W. Ryon and O. Tower, Jr.), for the defendants in error.
    Yanderslice located the warrants involved in this controversy wholly out of his district. His surveys were the acts of a private person, and without legal authority: Lesse of Hubley v. Chew, 2 Sm. Laws 257. This principle is not shaken by the ruling in Shields v. Buchanan, supra, and Funston v. McMahon, supra; for the surveys in those cases were made and returned by persons who never had commissions as deputy surveyors. Every survey made by a deputy surveyor out of his proper district is void: Act 1792, sect. 6, 3 Sm. Laws 70. A deputy surveyor, without a special authority, cannot go beyond the known lines of his district to make a survey: Harris v. Monks, 2 S. & R. 557.
    The Yanderslice surveys were returned as located in Berks county ; the acceptance of them cannot be construed as a ratification by the surveyor-general of an irregular act; for the limits of the county were not defined until two years later.
    It is not denied that, after a survey has been made and returned, no new survey can be made on the same warrant without a new authority ; but this rule pre-supposes the first survey to have been made by the regular deputy within his district.
    Gray’s surveys were returned upon lands in his own district, and accepted immediately by the surveyor-general; they were surveyed and returned as a block, the property of James Sillyman ; five of them were patented in 1806, two in 1808 and one in 1813; the warrants surveyed by Gray at the same time upon a portion of Yanderslice’s location abandoned by the resurvey were accepted, and some of them patented in 1794; the title under the Gray location was sold to actual settlers, who have occupied and improved the land; these lands have been assessed and have paid taxes since the territory became a part of Schuylkill county; no one ever claimed under the Yanderslice surveys, and they were never taxed; Gray’s returns were accepted more than thirty-five years before the John Bitler warrant was located. These facts justify the presumption that the surveyor-general gave a special authority for a resurvey: Goddard v. Gloninger, 5 Watts 221; Creek v. Moon, 7 S. & R. 330 ; Bellas -v. Levan, 4 Watt's 294; Caul v. Spring, 2 Id. 390 ; Collins v. Barclay, 7 Barr 67 ; Niemau v. Ward, 1 W. & S. 68; Lambourn v. Hartswick, 13 S. & R. 113; Brock v. Savage, 10 Wright 83. If a resurvey abandons the lines of the original survey, and the parties subsequently claim by the resurvey, the land thrown out by it is abandoned, and left open to reappropriation: Sabins v. McGhee, 12 Casey 453. So, where a warrantee has two surveys of different tracts made on the same warrant, and accepts a patent for one of them, the other is subject to appropriation by a settler: Coxe v. Woolbach, 2 Casey Í22.
    Ever since the case of Drinker v. Holliday, supra, the rule haa been, in Pennsylvania, that where a survey has been made, returned, and accepted, a new one cannot be made without the assent of those representing the Commonwealth, and not even then so as to affect intervening rights: Cassidy v. Conway, 1 Casey 240.
    The courts of this state have uniformly refused to go back moro than twenty-one years to settle difficulties about the issuing of warrants or patents, or the making or returning of surveys, or payment of the purchase-money to the Commonwealth: Strimpfler v. Roberts, 6 Harris 288.
    The plaintiffs do not claim title under the Vanderslice surveys, or in any manner connect themselves with that title. It is worthy of consideration whether they were in a position to make use of those surveys to defeat the defendants’ possession and claim under thé resurveys: Belliot v. Bauman, 5 W. & S. 150; Hull v. Campbell, 6 P. F. Smith 154; Glass v. Gilbert, 8 Id. 266.
    The authority of Gray was just as great to make the survey of these fourteen tracts as it was to make a survey of a single one of them. The Commonwealth has granted patents upon seven of the tracts; if Gray’s act was valid as to these seven, it was so as to the whole block. After a lapse of eighty years, and after the settlement of this whole country, the presumption is one of law that these surveys were made under competent authority:. Caul v. Spring, 2 Watts 394; Strimpfler v. Roberts, 6 Harris 299; Ormsby v. Ihmsen, 10 Casey 462; McBarron v. Gilbert, 6 Wright 279; Stephens v. Cowan, 6 Watts 515; Malone v. Sallada, 12 Wright 425; Darrah v. Bryant, 6 P. F. Smith 73.
    In reply to the plaintiffs’ 5th assignment of error. The assessments to Hannah and Elizabeth Bitler of thirty acres as unseated land, on the mixed list, for 1838, 1839 and 1840, and of sixty acres so assessed for 1835, 1836 and 1837 were frauds practised upon the county by the owner of the land, if they referred to the John Bitler tract of three hundred acres, and no correction and placing of the tract upon the proper list by the proper officer, at the lawful time appointed -for making the triennial assessments would prevent a valid sale* of the land for non-payment of taxes, either upon that assessment or upon the assessments in the names of Christian Troxel and Christian Immel: Clarke v. Dougan, 2 Jones 87.

      As to the validity of the tax sales of the Immel and Troxel tracts, see Laird v. Hiester, 12 Harris 453; Arthurs v. Smathers, 2 Wright 40; Bechdle v. Lingle, 16 P. F. Smith 38; Stewart v. Trevor, 6 Id. 374; Thompson v. Chase, 2 Grant 367; Russel v. Werntz, 12 Harris 337.
    In reply to the plaintiffs’ 12th assignment of error. A deed from the county commissioners, in fee simple, duly acknowledged, conveys effectually the county’s title: Act of 29th March 1824, Purd. Dig., p. 1452, sect. 51.
    The plaintiffs cannot object to the sale of the Casper Thiel tract that the commissioners did not recite, in their deed, advertisement and notice of sale, &c.; for, excepting the single requirement that the sale shall be public — and the defendants have shown affirmatively in their evidence that the sale of the Thiel tract to Taylor and Clayton was a public sale — the, provisions of the Act of 1824, in regard to the sale of lands by the commissioners after title has become absolute in the county, are simply directory: Huston v. Poster, 1 Watts 477; Kirkpatrick v. Mathiot, 4 W. & S. 251; Jenks v. Wright, 11 P. F. Smith 410; Hess v. Herrington, 23 Id. 438; Lee v. Jeddo Coal Co., 3 Norris 74; McCoy v. Michew, 7 W. & S. 386.
    In reply to the plaintiffs’ thirteenth assignment of error. — All taxes due on the Thiel tract prior to 1843 were discharged by the sale to .Taylor and Clayton; the sale in 1844 of so much of the Thiel tract as may have been interferred with by the Hannah and Elizabeth Bitler 300-acre tract was void; no title passed to the county, and it had no title to sell to Straub in 1849. The absence of the requisites of a valid sale renders the sale void. If the tax be not-due and unpaid one whole year, there is no authority to sell: Laird v. Hiester, 12 Harris 453; McReynolds v. Longenberger, 25 P. F. Smith 13; Rogers v. Johnson, 17 Id. 43; Breisch v. Coxé, 31 Id. 336. The county owned the Thiel tract in 1843, hence it could levy no tax upon it for that year. There is no authority to levy tax for a portion of a year, nor can a tax be apportioned by the county so as to assess part of it to its vendee and assume the other part itself.
    The land described in the plaintiffs’ praecipe and writ would not cover any part of the Thiel, Shomo or Immel tracts, but it would lie entirely upon the Christian Troxel tract. The defendants never claimed the John Shomo tract. Their plea of not guilty was only prima facie evidence of their being in possession of the land described in the writ, which did not include any part of the J ohn Shomo tract, and it was competent for the defendants to show that they, were not in possession of that tract.
    The contest before the court and the jnry was as to whether the plaintiffs or the defendants have a better title to that portion of the Christian Troxel tract with which the John Bitler survey interferes.

      Oct. 4th 1880.
    The doctrine óf abandonment of the valid title, by warrants and. surveys, to the Immel and Troxel tracts under the Gray location, in favor of the void survey to John Bitler, has no foundation in the law of Pennsylvania. If an abandonment is to be presumed, it is one in favor of the owners of the tax title to the Immel and the Troxel tracts, and not in favor of the void survey to John Bitler: Bunting v. Young, 5 W. & S. 197; Foust v. Ross, 1 Id. 506.
    [We are indebted for the report of this ease to the editor of Weekly Notes of Cases. — Rep.]
   Mr. Justice Sterrett

delivered the opinion of the court,

The controlling questions presented by this record are substantially the same that were fully considered and determined when the case was here on the former writ of error, and if we adhere to the principles upon which that decision is based, the present judgment should be affirmed, and but little, if anything, need be added to what is said in the elaborate opinion of the court by Chief Justice Agnew, reported in 28 P. F. Smith 350, in which all the authorities are collected, and the'questions involved fully discussed. Even if there should be doubt as to the soundness of some of the conclusions there reached, the doctrine of stare decisis forbids that the former decision, by which the court was guided in the last trial, should be virtually overruled.

The claim of the plaintiffs was founded on the John Bitler warrant of 1827, and survey made, returned and accepted in 1829, and it may be assumed, for the present, that the verdict should have been in favor of the plaintiffs, unless.the defendants succeeded in showing an older and better title, which it is contended they did. They claimed under the warrants of July 1st 1793, and surveys thereunder made and returned in 1794 by William Gray, deputy surveyor of Northumberland county, in whose district the lands were situated; and then connected themselves with these warrants and surveys by tax titles.

The main question on the last as well as the former trial, was whether the Gray surveys were valid appropriations of the land in dispute. The plaintiffs contended that they were not, for the reason that surveys under the same warrants were previously made and returned by Henry Vanderslice, deputy surveyor of Berks county, within a few weeks after the warrants were issued; that the Gray surveys were made under exhausted warrants, without an order of re-survey and therefore void, and that they were never accepted. It cannot be doubted that the eighteen warrants which were applied for and issued at the same time, and on which the purchase-money appears by the entry to have been paid in a gross sum, were intended to form a block of surveys; and that they were so located is clearly shown by the return of Vanderslice, made July 16th 1793. There was nothing to show that the Vanderslice surveys were ever accepted. It is true, that about nine years ago a patent was issued by the Commonwealth for the Ann Maria Shomo tract, as located by Vanderslice. This, if done understandingly, would be some evidence of the acceptance of his surveys, but it was clearly-shown that the patent V'as issued by mistake and contrary to the purpose and intention of the party in interest. The tract thus patented by mistake was covered by surveys of the Gray location, under which it was patented more than three-quarters of a century ago, and occupied for about the same length of time. It may therefore be said, with substantial accuracy, that there was no evidence of acceptance of the Vanderslice surveys; on the contrary, satisfactory reasons for their nonacceptance were disclosed.

On July 18th 1793, two days after the Vanderslice returns were made to the land office, a caveat was filed on behalf of persons claiming under prior warrants with which there was an alleged interference. While it does not appear that the caveat was ever acted on or any citation issued, it still afforded sufficient- grounds for refusing to accept the Vanderslice returns ; and to this, perhaps, may be added as a further reason, the fact that the surveys were not within his proper district. This latter fact, however, would not have invalidated the title if his returns had been accepted and patents issued in pursuance thereof. Shortly after the caveat was filed, the same warrants found their way into the hands of William Gray, deputy surveyor of Northumberland county, who, in October 1793, located fourteen of them in a single block, partly on the same ground covered by the former survey, but so as to avoid any interference with older rights. These surveys were returned in March of the following year,' and while the records of the land office fail to furnish any direct evidence of Gray’s authority to make the re-survey or of the acceptance of his returns, they do show that nearly all the tracts included in his block of surveys were from time to time patented; from which latter fact the acceptance of his surveys as well as his authority to make them may be inferred. Granting a patent according to a return of survey is virtually an acceptance of the return. Patents were granted to John Meyer in 1806 for the James Sillyman, Susanna Sillyman, Henry Thiel, Mary Thiel and George Rose tracts, reciting deeds poll from the warrantees, dated July 14th 1793; in 1808 patents were issued to the same person for the Catherine Rose and Jacob Kelchner tracts, reciting deeds poll from the warrantees dated July 10th 1793, and in later years patents were issued for other tracts in the same block. When these patents were issued, the fair presumption is that the proper officers of the land department had beforp them satisfactory evidence of the regularity of the Gray surveys. This presumption is strengthened by the fact that the Yanderslice surveys -were never recognised either by the Commonwealth or the warrantees as the foundation of title; and after so great a lapse of time, under the leading and undisputed facts of the case, the presumption should be regarded as conclusive that the'Yanderslice surveys were not accepted, and that, the re-surveys made by Gr.ay were authorized and his returns accepted. The’reasons and authorities in support of this presumption are so fully given in the opinion referred to, that nothing more is now required. The learned judge of the Common Pleas adhered strictly to the principles of law therein recognised, and as we think, correctly held that there was not sufficient additional or different testimony introduced at the last trial to justify any other course. As remarked in the outset, the controlling questions are the same as in the former trial, and the facts upon which they must be determined are substantially the same.

Those portions of the charge which relate to the tax titles given in evidence and relied on by the respective parties are unobjectionable and require no further notice.

Under the -construction correctly put upon the prsecipe by the court, the plaintiffs’ claim was properly restricted to the northerly portion of the Christian Troxel tract, as located by the Gray survey, and did not embrace any portion of the Casper Thiel, John Shomo or Christian Immel tracts. The charge of the learned judge on this point is quite clear and conclusive.

We discover nothing in any of the assignments of error to justify a reversal of the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Hall versus Parker.
    1. Where a tenant contracts with his landlord to build or to repair buildings for compensation to be made by the landlord, either in money or the occupation and use of the premises, the tenant is the landlord’s agent, building or repairing for him, at his ultimate cost, and the building is liable to lien as in all other cases of building or repairing by contract.
    2. Under such circumstances, notice by the lessor to the mechanics that they must look only to the lessee for their compensation does not destroy their right to the security of the building.
    March 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term 1879. No. 153.
    Scire facias sur mechanic’s lien, issued by Parker & Worthington against John Hall, owner or reputed owner, and F. J. De Maziere and F. A. Wyers, contractors.

      At the trial it appeared that Hall leased to De Maziere and Wyers a certain building in West Chester for the term of five years, the rent to be $5 for the first year, $500 for the second year, and $600 per year for the balance of the term. The lease contained the following clause:
    “ The said lessees agree that they will, during the first year, in consideration of the low rent for that time, make the following repairs to said premises, to wit, roof the wash-house, the dormer windows, and introduce water and gas into such parts of the building and premises as they may deem necessary. The said lessor is to make necessary repairs to the roof of the main building; all other repairs and improvements are to be made- by the lessees at their own expense and cost.”
    . The plaintiffs were employed and did certain work on the building. There was evidence that Hall informed them that the lessees were to pay for all the work done for them. The lessees after-wards became embarrassed and made an assignment, when this suit was brought.
    The defendants presented the following points :
    1. The lease to De Maziere and Wyers having provided that they were to make the repairs for which plaintiffs’ claims are made “ at their own expense and cost,” the premises against which plaintiffs’ claims are filed are not subject to a lien on their claim.
    2. The estate of De Maziere and Wyers being only a leasehold estate in the building and ground against which the plaintiffs’ claims are filed, they are not subject to a mechanic’s lien on their claim.
    3. The plaintiffs having been notified by John Hall, before they performed any work or furnished any material to the repairs of the premises leased to them, that he would not be accountable in any wise to them for the cost of such work or materials, the premises are not subject to a mechanic’s lien on their claim.
    The court reserved these points, and a verdict was rendered for plaintiffs for $230.06. The court, Butler, P. J., afterwards entered judgment for the plaintiffs on the points reserved in an opinion, inter alia, saying:
    “ The defendants’ first, second and third points having been reserved on the trial must now be answered. They deny the plaintiffs’ right to recover as matter of law.
    “ The lien is for repairs and additions. Under the general statute it could not be sustained. The lien there provided is for material and work for the erection of buildings only. But the special Act of May 1st 1861 extended the provisions of the general statute to additions and repairs so far as respects Chester and some other counties.
    “ By the supplement of April 28th 1840 to the original statute, the lien is restricted to the estate of the party contracting and in possession at the commencement of the work; and, as a tenant for years has but a chattel interest, no liens can attach for material or work furnished him.
    “Where, however, the tenant contracts with the landlord to build, or to add to or repair buildings, for compensation to be made by the landlord either in money or the occupation and use of the premises, he is, in the first instance, under the general statute, and, in the second, under the special one here properly regarded as an ordinary contractor to build or repair. He is the landlord’s agent holding possession for him, building and repairing for him, at' his ultimate cost; and the building is liable to lien, as in all other cases of building or repairing by contract. Occasionally such contracts have been inadvertently called improvement leases, but they are not, in the ordinary meaning of that term.
    “ The difference is recognised by the court in the first and last case involving the subject: Woodward v. Leiby, 12 Casey 437, and Wainwright v. Barclay, 5 Norris 191. Improvement leases do not ordinarily contemplate the purchase of material for building and the employment of mechanics, but simply the labor of the tenant and his servants. The contracts'here under consideration are building contracts (as "well as a lease), with all the incidents of such contracts where no lease exists: Woodward v. Lieby, supra; Leiby v. Wilson, 4 Wright 63; Reid v. Kennedy, 4 W. N. C. 452; Barclay v. Wainwright, supra; Hooper v. Child, 7 Wright 310; Fisher v. Perot, 2 P. F. Smith 40.
    “In Reid v. Kennedy it was intimated, if not asserted, that a permission or license to build is not sufficient; that a duty must be imposed on the tenant to do so. But in Wainwright v. Barclay, supra, (the most recent case), this is repudiated, and the liability to lien put upon the fact that the building is erected by the tenant for the landlord with his assent and at his ultimate expense, being paid for out of the rent or from the use and profit of the premises.
    “ In the case before us the tenants contracted to make the repairs and addition during the first year, in consideration of the low rent for that time. In other words, in consideration of receiving the use of the premises for that year rent free, for the rent required to be paid is but nominal — $5. The annual value of the premises is fixed by the parties at $600. $595 is therefore the sum which the landlord agreed to pay for the repairs and additions. The transaction was a contract for repairs and additions to be paid for at this rate. Calling the contractors tenants, paying them in the use and occupation or proceeds of the premises, will not avoid the ordinary incidents of a building contract. If it would then (as is suggested in some of the cases cited) might the owner have buildings erected or repaired and enlarged, and escape the provisions of the mechanics’ lien law by simply calling the contractor tenant, putting him in possession and paying him for the proceeds of the property, instead of from the owner’s pocket. * * *
    “ Can the notice given one of the plaintiffs make any difference ? We think not. It appears that the plaintiffs had then been employed and the work commenced. Mr. Hall inquired of Mr. Parker if he knew ‘ who they were working for ?’ Mr. Parker replied, ‘ Yes, for the tenants and Mr. Hall added, ‘ Yes, I will not pay for anything.’ Mr. Hall is not personally asked to pay for anything, and is not personally liable. If, by reason of depreciation, previous liens or other cause, the building should prove insufficient to pay, the plaintiffs cannot resort to him. The court cannot interpret Mr. Hall’s language, say how the plaintiffs should have understood it, and whether, therefore, it was sufficient notice to deprive them of their right to lien, if any notice could have this effect, as the point asked us to do. It may be proper to remark that the language attributed to Mr. Hall in the point differs from his language on our notes and quoted above. But we do not think any notice he could have given would be important. He required the tenants to make the repairs and additions to his property for his benefit at his ultimate cost.” * * *
    The defendants took this writ, alleging that the court erred in holding that the notice given by Mr. Hall to look to the lessees was of no effect, and that no notice would have been sufficient, and in not holding as requested in defendants’ first point.

      W. Townsend, for plaintiffs in error.
    There was evidence to show that plaintiffs did not contemplate a lien, and did not work on the faith of such a remedy. On the first day they commenced their work they were told by Hall that he would not be responsible therefor. Hall thus gave them notice of a contest if they endeavored to change the building, and the 6ourt erred when they said this notice was of no importance: McClintock v. Criswell, 17 P. F. Smith 188.

      John J. Pinkerton, for defendants in error.
    It is to be.presumed that these mechanics making improvements upon this building looked not only to the personal security of the contractors, but to the building as well. To bind the land it is not necessary that the lease should contain an express covenant on the part of the lessee to build; it is enough if it be shown that such was the manifest intention of the parties : Barclay v. Wainwright, 5 Norris 191; Leiby v. Wilson, 4 Wright 63; Woodward v. Leiby et al., 12 Casey 437.
    It is said the plaintiffs had notice, and had time to save themselves by requiring security of the tenant. The answer to that is, they did not want to save themselves; they were relying upon the building, because they knew the character of the lease, and under its terms they were entitled to enter a lien for their work and materials.
    March 31st 1880,
   The judgment of the Supreme Court was entered,

Per Curiam.

We affirm this judgment upon the opinion of the learned judge below on the points reserved.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Brown et al. versus Jaquette.
    1. J. agreed to farm the land of B., for which he was to have one-half the proceeds, each party furnishing one-half the seed, stock, poultry, hogs, &c. J. was to find all the farming implements and the working stock, and all the requisite labor, and pay the road tax and one-half of all other taxes. He was also to submit a statement every three months, and make settlement: Held, that this agreement was a lease of the farm on shares, and not a partnership.
    2. J.’s interest in a portion of the proceeds of the farm was sold at sheriff’s sale, on a judgment against him, and B. claimed that he was entitled to a partriership account, and that the sheriff's vendee only took title to the balance due J. after said account: Held, that no such claim could be sustained.
    3. B. neither exercised his right to distrain nor gave the sheriff notice of his claim for rent: Held, that the interest of J. was divested by the sheriff’s-sale as well as the right of B. to distrain.
    March 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1879, No. 57.
    Case stated wherein Martha M. Brown and others, devisees of J. J. Brown, were plaintiffs and J. L. Jaquette defendant. The case, as stated, was, in substance, as follows: On October 20th 1864, J. J. Brown and S. P. Jaquette executed the following agreement in writing: “ That for the term of one year, commencing on the first day of April 1865, to be fully completed on the thirty-first day of March 1866, the said Jaquette for and in consideration of one-half the product, agrees to farm for the said-J. J. Brown, the land lately purchased by him of John E. Morgan, on the following terms and conditions: Each party is to find one-half the stock, including cattle, poultry, hogs, &c., and one-half the seeds for crops. The said Jaquette to find all the farming implements and all the working stock, an$l it is distinctly understood that no more of such stock is to be kept on the place than is absolutely necessary for the working thereof. The said Jaquette to find all the requisite labor, pay the road tax, and one-half of all other taxes. He is to submit to J. J. Brown at the end of every month, or three months, as may be agreed upon, a true and careful statement of all receipts, and make settlement of the same. No timber is to be cut on the premises without the special direction of the owner. The fences are to be kept in good repair, the weeds kept down, and the premises generally preserved in tidy, neat order. J. J. Brown is to pay one-half the blacksmith’s and wheelwright’s bill, and reserves for himself the privilege, should he at any time desire it, of keeping on the farm for his own use one horse.”
    Jaquette entered into possession of the premises, and continued to hold possession under said agreement under April 1st 1878. On the 16th day of March 1878, being in arrear in accounting to the plaintiffs for their share of the proceeds of the products of the farm, which, in accordance with the above agreement, he had marketed, and claiming,. at the same time, a certain set-off or counter-claim to the amount which he Was in arrear, Jaquette entered into an agreement in writing to submit the questions of difference between the plaintiffs and himself in this behalf to certain disinterested persons for final decision, waiving all right of appeal.
    These arbitrators made an award in favor of the plaintiffs for $555.39. On the 19th of March 1878 certain confessed judgments were entered against Jaquette, and a levy was made on'his individual property, and also on certain joint property on the farm, such as cattle, corn, .wheat and hay. The sheriff sold the right, title'and interest of tí. P. Jaquette in said joint property to'Jane L. Jaquette, the defendant in this case. By agreement a sale of .all said joint property was subsequently made, one-half the proceeds of which, $479.80, being paid over to the plaintiffs, the other half to await the determination, to be ascertained in this action, as to who was entitled thereto. ■
    1. If the court be of opinion that at the time the above writs of execution against Samuel P. Jaquette were issued, the plaintiffs’ interest in the joint property would have precedence of said writs of execution, and was not divested by the sheriff’s sale upon that part of said joint property which was the product of said farm, to wit, the corn, wheat and hay, then judgment to be entered for the plaintiffs for the sum of $147.13. ■
    2. If, at the time the above writs of execution against Samuel P. Jaquette were issued, the plaintiffs’ interest in the joint property would take precedence of said writs of execution, and was not divested by the sheriff’s sale upon all the joint property, then judgment to be entered for plaintiffs for $479.30.
    3. If plaintiffs’ interest in said joint property was not superior to, and preferred over, such writs of execution, and was divested by said sale, then judgment to be entered for defendant.
    The court, Clayton, P. J., entered judgment for defendant, when plaintiffs took this writ, and assigned this action for error.

      May 3d 1880.

      J. B. Thayer, for plaintiffs in error.
    The plaintiffs contend that as to this joint property, they and Samuel P. Jaquette were partners, and that his interest therein was only such balance which might he found due to him upon a settlement of the partnership accounts; that the debt of $555.39, found by the arbitration, was the balance due by him to the plaintiffs in error, and being for their share of the products of the joint property which he had sold, and not paid over, they were entitled to a credit for that amount on any such settlement. The case presents every essential element of a partnership. There was a joint contribution of capital, a division of profit and a provision for an account.
    If this were an ordinary lease upon shares of the crop, where the sole contribution by the landlord to the joint enterprise was the use of land, it might well be doubted whether that would constitute a partnership inter se, but there is in this case a joint partnership of the cattle, poultry, hogs, &e., and it is the equivalent of this very property which is here for distribution. “A partnership,” says Pothier, in his treatise, page *836, “ may be contracted in particular things, or even in one thing, as when two neighbors agree to purchase a cow at common expense in order to feed, take care of her in common and share the profits. See, also, Williams v. Lawrence, 53 Barb. 320; Nicoll v. Mumford, 4 Johns Ch. R. 522; Musier v. Trumpbour, 5 Wend. 274. This agreement of March 16th, irrespective of the question of partnership, operated as a prior equitable assignment to the plaintiff in error of Samuel P. Jaquette’s interest to the extent of his indebtedness to them.

      E. H. Hall, for defendant in error.
    The agreement was certainly a lease. There was a term certain, a fixed rent; and if Brown intended to divest himself of the possession, he would not reserve to himself the privilege of keeping one horse. The landlord could have distrained. The owner of the land could not he held under this agreement for any debts Jaquette might contract.
   Mr. Justice Paxson

delivered the opinion of the court

The agreement between Joseph Johnson Brown and Samuel P. Jaquette, of October 20th 1864, is a lease of a farm upon the shares. See Steel v. Frick, 6 P. F. Smith 172. Jaquette agreed to farm the land for Brown, for which he was to have one-half the proceeds; each party furnishing one-half the seed, stock, poultry, hogs, &e. The agreement was for the term of one year, commencing on the first day of April, the usual time for letting farms in Pennsylvania. While it lacks some of the formality of a lease, it contains all the essential requisites of such an instrument. The reservation of one-half the products of the farm is sufficiently certain because it may be reduced to a certainty. Thus it. was held m Fry v. Jones, 2 Rawle 11, that the lease of a mill for “one-third of the toll which the mill grinds,” was a good reservation of rent, and could he distrained for. See also Jones v. Gundrim, 3 W. & S. 531.

It was urged, however, that the agreement created a partnership inter se. That such was not the intention of the parties is tod plain for argument. Such or similar agreements are in constant use in this state for the letting of farm lands, and it was never supposed they created a partnership. A careful examination of its terms shows that it lacks every essential feature of a copartnership. There is no division of profits, no responsibility on the part of Brown for losses, and no joint ownership in anything. The landlord is to receive “ one-half the product” of the farm. This must not be confounded with profits. The product of the farm is one thing ; the profit is another, and a very different matter. The product may be large, the profit inconsiderable. Again, each party is to find one-balf the stock. This does not make them joint owners of the stock. They may become so by means of a joint purchase and a joint holding, but under the agreement if the landlord furnishes one-half the horses, cows and other stock, such half remains his property, and the tenant has no interest therein beyond the right to use the same under the terms of the lease.

The plaintiffs had a clear right to distrain for the rent in arrear. Jaquette was not a mere cropper, or a servant hired to work the land for a share of the produce. In the case of a cropper the legal possession remains in the hirer or landlord, and the remedy by distress is not applicable: Steel v. Frick, supra; Adams v. McKesson, 3 P. F. Smith 81. But Jaquette was a tenant in possession, and the remedy by the landlord is by distress as in tfie case of a money rent: Rinehart v. Olwine, 5 W. & S. 157. The plaintiffs neither exercised their right to distrain, nor did they give to the sheriff notice of their claim for rent. It follows that the interest of Jaquette was divested, by the sheriff’s sale, as well as the right of the plaintiffs to distrain. The subsequent agreement between the plaintiffs, the defendant and the sheriff.’s vendee, to place the joint property in the hands of a stranger with power to sell and hold the proceeds pending this litigation, was not, as contended by the plaintiffs, an equitable assignment of the fund to them. Jaquette’s title to the joint property was claimed by the sheriff’s vendee, and the object of the agreement was to preserve the property or the proceeds until the right thereto was judicially ascertained. The defendant has not parted with her right to the property or its proceeds, as vendee of the sheriff, and the judgment of the court below therefore must be affirmed.

Judgment affirmed.


text:
    Chadwick et al. versus Maginnes.
    1. The councilmen, of the South ward of the city of Chester constituted a quasi corporation, the object of which was to supply said ward of said city and the surrounding neighborhood with water, at certain rents to be fixed by the corporation. The profits, after the payment of expenses, interest and cost of the works, were to be paid into the city treasury, and to be held on account of municipal taxes against the said ward. A county tax was levied upon the real estate and property of the corporation, all of which was indispensable to the operation of the waterworks : Held, that the corporation was liable to the tax.
    2. Per Sterrett, J. — “ Surely it’was never intended that such a corporation should be exempt from all taxation while others are compelled to bear their share of the public burden. The letter as well as the spirit of the Constitution and the act passed in pursuance of its provisions, do not sanction it. They were designed to restrict exemption from taxation within much narrower limits, and thus remedy, to some extent, what had become a great evil.”
    March 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Delaware county; Of January Term 1879, No. 87.
    Amicable action of debt, brought by David Maginnes, collector of taxes for the county of Delaware, of the South ward in the city of Chester, against Robert Chadwick and others, councilmen of the South ward of the city of Chester.
    The case was submitted as follows: “ It is hereby agreed that an amicable action be entered, and that the said action shall be deemed to be depending in like manner as if the defendants had appeared to a summons issued against them by the plaintiff, and said action being founded on a county tax of $60, assessed and levied on real estate and property of the defendants in the county of Delaware for the year 1876, which the defendants have, and still do refuse to pay to the plaintiff. It is agreed that the action be deemed at issue as if the plaintiff had filed a declaration averring that the property upon which said tax was so assessed and levied, was a legal subject of taxation, and as if the defendants had filed a plea, denying that the said property was a legal subject of taxation. And it is further agreed that a trial by jury be dispensed with, and the decision of the case be submitted to the said court to hear and determine the same under the provisions of the Act of Assembly of April 22d 1874.”
    The court, Clayton, P. J., found the facts as follows:
    “ The defendants are a quasi-municipal corporation, the object of which is to supply the South ward, of the city of Chester, and surrounding neighborhood with water at certain rents, to be fixed by the corporation. The taxpayers of the said South ward, are the equitable owners of all the property, estate and franchises of the corporation; the profits after the payment of expenses, interest and cost of the works, are to be paid into the city treasury, and are to be held on account of municipal taxes against the said South ward.
    “ No profits, beyond the costs of the works, interest on loan, and expenses of managing the works, have yet been paid into the city treasury for the benefit of the taxpayers of said South ward.
    “ The real estate upon which the works are erected, and against which the tax has been levied (except one hundred and twenty feet on Front street), is indispensable to the enjoyment of the franchises of the corporation, and is absolutely necessary for its corporate purposes.
    “ The corporation is not a stock company, and pays no tax in any form to the state, under the general corporation tax law’s of the Commonwealth.
    “ The corporation owns a lot of ground, being a part of the real estate against which the tax claimed by the county has been levied, which has not been actually used and occupied by said corporation for the purposes of their charter, and which is not indispensable to the enjoyment of its corporate franchises. Said lot contains one hundred and twenty feet on Front street, and is one hundred and fifty feet deep, and adjoins the lands upon which said works are erected. A right of way over twenty feet of this lot is necessary to the proper enjoyment of the privileges of the corporation for the purposes of its charter.
    “As to the real estate indispensable to the enjoyment of the franchises of the corporation, it may be somewhat doubtful whether it is subject to taxation. Adopting, however, the usual rule, which requires an enlarged and liberal construction of all tax laws in favor of the government, I incline to the opinion that it is a proper subject of taxation for county purposes.”
    The court entered judgment for plaintiff for the full amount of .the tax, when defendants took this writ, and assigned this action for error.

      W. B. Broomall, for plaintiffs in error.
    The public works of a corporation, with their necessary appurtenances, are exempt from taxation: Lehigh Coal and Navigation Co. v. Northampton County, 8 W. & S. 334; Navigation Co. v. Commissioners, 1 Jones 202; Commissioners of Wayne County v. Delaware and Hudson Canal Co., 3 Harris 351; Railroad v. Berks County, 6 Barr 70. The Act of May 14th 1874, Pamph. L. 158, contains no stronger or more • sweeping provisions in favor of taxation than the laws in existence prior to that time: Act 15th April 1834, Pamph. L. 511; Act 29th April 1844, Id. 497; Act 16th April 1838, Id. 525; Act 14th April 1851, Id. 625. Under these last-named acts, the decisions have drawn a distinction between private works owned by corporations and public works owned by corporations, and have declared the latter exempt.
    May 3d 1880.

      H. C. Howard, for defendant in error.
    The Act of May 14th 1874, Pamph. L. 158, passed in pursuance of art. 14, of the new Constitution, makes the property of this corporation taxable for county purposes. The plaintiffs in error rely on the construction which has been given to former acts relating to taxation, to be relieved from the effect of this Act of 1874. But their argument is without force for this reason: 'Prior to the Act of 1874, no Act of Assembly had specifically declared that all property should be subject to taxation, except certain particular kinds mentioned therein. The contention in all the cases, or nearly all, cited by them, was as to whether the legislature intended to impose taxes upon the real estate of a corporation, while taxes were assessed upon its capital stock which represented its real estate. It is not a stock company, and pays no taxes of any kind to the state as a corporation. To tax it for local purposes, therefore, is not to subject it to double taxation. Its property lies wholly within the county of Delaware, and must be confined by its charter to this limit.
   Mr. Justice Sterrett

delivered the opinion of the court,

The single question in this amicable action is whether the property of the plaintiffs in error, assessed in 1876, was subject to taxation for county purposes. It was agreed by the parties that the cause be deemed at issue as on a declaration averring that the “property was a legal subject of taxation,” and a plea denying said averment; that a trial by jury be dispensed with, and the issue thus formed be submitted to the court- under the provisions of the Act of April 22d 1874.

The facts found by the learned judge are embodied in his opinion, and need not be restated. While some doubt was expressed as tó whether that part of the real estate, which he found to be indispensable to the enjoyment of" the franchises of the corporation, was subject to taxation, he concluded that an application of the rule which requires a liberal construction of all tax laws in favor of the government, as well as the letter and spirit of the Act of May 14th 1874, required hi.m to hold that the property in question was subject to taxation for county purposes. In this we think there was no error.

The first section of the ninth article of the Constitution, declares that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws ; but the General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of a purely public charity." The second section declares that “ all laws exempting property from taxation, other than the property above enumerated, shall be void.” The Act of Assembly referred to, passed in pursuance of these constitutional provisions, after enumerating specifically what property shall be exempt from county and other taxes, declares in the proviso, “ That all property, real or personal, other than that which is in actual use- and occupation for the purposes aforesaid; and from which any income or revenue is derived, shall be subject to taxation, except where exempt by law for state purposes.” The property in question is not embraced in either of the classes specified in the act as exempt, and must, therefore, under the terms of the proviso, be subject to taxation. All property, except such as is therein specifically exempted, is declared to he subject to taxation, saving only such property as is exempt by law for state purposes. One object in adding the saving clause to the proviso was doubtless to guard against a construction which would have re-instated a tax for state purposes on real estate then exempt therefrom. It has no application to the question under consideration.

The plaintiffs in error rely on the line of cases commencing with the Lehigh Coal and Navigation Co. v. Northampton County, 8 W. & S. 334, giving construction to former laws on the subject of taxation. The principal-question in all or nearly all of those cases was whether the legislature intended to tax the real estate of a corporation while its capital stock which represented its real estate or its income was subjected to taxation. The -language of the former acts was open to construction. None of them declared in express terms, such as the Act of 1874, that all property real and personal shall be subject to taxation except certain specifically enumerated kinds or classes. It therefore furnishes, as was doubtless intended by its framers and required by the new Constitution, a more binding rule on the subject of taxation than was contained in preceding legislation. But if this were not so, we still think the plaintiffs in error are not within the principle on which the property of corporations was held to be exempt under former acts. They are not a stock company, have no capital, and as a corporation pay no taxes of any kind to the state. They therefore cannot even urge the objection of double taxation.

We have seen that the proviso to the Act of 1874, subjects to taxation all property not expressly exempt, and especially property “from which any income or revenue is derived.” The plaintiffs derive revenue from their water-works which, after paying current expenses, they may apply to the payment of their bonded debt, or to the extension of their works; or, they may reduce water-rents of citizens of the South ward to an amount barely sufficient to cover interest and current expenses, and thus permit them to enjoy the benefit of the works in the reduction of their water-rents. The works not only yield an income or revenue in the shape of water-rents, with power to enlarge their capacity in this respect by supplying water to persons outside of the ward, but, as the court has found, the taxpayers of the South ward are practically the equitable owners of the works, the profits of which, after paying the costs of construction, interest and expenses, are to be paid into the city treasury in relief of their municipal taxes.

While the plaintiffs in error are in one sense a public corporation, the profits and benefits enure specially to the citizens of the South ward, even to the extent it may be of relieving them from municipal taxes. Surely it was never intended that such a corporation should be exempt from all taxation while others are compelled to bear their share of the public burden.

The letter as well as the spirit of the Constitution, and the act passed in pursuance of its provisions, do not sanction it. They were designed to restrict exemption from taxation within much narrower limits, and thus remedy to some extent what had become a great evil. We think the judgment of the court was correct and should be affirmed.

Judgment affirmed.