author: Mr. Justice Trunkey

text:
    Kramer and Bell versus Goodlander.
    (No. 1.)
    1. The provisions of the act of March 29th 1821, 8 Sm. L. 283, imposing a penalty of treble damages upon any one cutting and converting to his own use timber growing upon the land of another, without the owner’s consent, was intended only to prevent the willful or careless cutting of another’s timber.
    2. Where therefore the owner of land, by his positive acts misleads his neighbor as to the extent of his claim, in consequence whereof such neighbor cuts and converts to his own use timber growing beyond his line, the owner of the land whereon the timber was cut, cannot take advantage of the provisions of the said act, and this, though he was at the time of the trespass ignorant as to the true location of his land.
    3. A. and B. were the owners of adjoining tracts of woodland, A.’s land lying to the eastward of that of B. Á., discovering that B.’s tract had an actual excess from east to west, of about 134 perches overits official length, procured a warrant for such excess, which was accordingly surveyed for him, being located immediately to the west of the tract formerly claimed by him. B. subsequently cut and convened to his own use timbergrowing upon the tract thus warranted and surveyed for A., whereupon A. brought an action against him under the provisions of the Act of March 29th 1824, Pnmph. L. 152, to recover treble damages for the injury done. Before declaration filed, however, a line was discovered marked upon the ground about 178 perches 'west of the line previously claimed by A. to be the west line of his original tract. This line A. now adopted, as the true western boundary of his original tract, and, disregarding his recent warrant and survey, claimed on the trial to recover damages for all timber cut east of the new line. Held, that the plaintiff was not entitled to recover the treble damages claimed.
    4. Although the conduct of the plaintiff barred his right to recover treble damages in the above case, — Held, nevertheless, that it did not defeat his title to the land on which the timber in question had been growing. Constructively, the party having a good title is in possession of unimproved land. Where the location of a tract of land is in dispute, evidence to the effect that surveyors who have had occasion to go upon the ground, and other parties interested, including the opposite party, have generally recognized a certain location to be the true one, is admissible, even though there may be other evidence in the case tending to show that such is not the true location.
    5. In determining whether or not certain land is included within a seated tract upon which taxes have been paid, not only will the number of acres included in the assessment be considered, but also all the other evidence in the case, under proper instructions from the court.
    6. A tax salo of land as unseated will convey no title to the vendee, when as a matter of fact the land sold constitutes part of a seated tract upon which the taxes have been paid.
    June 14th 1881. Before Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ. IBiiarswood, C. J., absent.
    Error to the Oourt of Common Fleas of Olearfield coimty : Of May Term 1880, No. 186.
    This was an action of trespass, brought March 24th 1873, by George Goodlander against George Kramer, "William E. Beil and others, to recover double and treble damages for cutting and converting timber trees on land claimed by the plaintiff.
    In liis declaration, filed December 3Íst 1878, the plaintiff averred that the trespass was committed upon a portion of a tract of land, being warrant and survey No. 1434, June 4th 1793, in the name of David Kennedy, Esq., to which tract the plaintiff showed title in himself.
    The defendants admitted that if the location of the David Kennedy tract, No. 1434, as claimed by the plaintiff, were the true one, the timber bad been cut within its lines. But they claimed that the true location of the David Kennedy tract was one tract to the eastward from where the plaintiff claimed. They further claimed that even if the plaintiff’s location were correct, }7et they were not liable to treble damages, because the plaintiff had always, until after suit brought, recognized the location of the David Kenned}7 tract as claimed by defendants, and had by bis acts invited or acquiesced in and consented to the defendants’ cutting timber on all but a very small portion of the land whose location is now disputed. The principal question in the cause, was as to the true location of the David Kennedy tract.

    On the trial, before Cummin, P. J., the evidence developed the following facts:

      Tract No. 1434, in the name of David Kennedy, Esq., was a survey made June 4th 1793, in the form of a parallelogram. It calls for the Ann Kennedy, No. 305, on the north. The official draft of the survey indicated that the east line of the Ann Kennedy, No. 305, continued to the south was the east line of the David Kennedy, 1434. This survey called for vacant land on .the other three sides. It called for a beech on the southwestern corner and for posts on the other corners.
    No. 5862, Jonathan B. Smith, was a rectangular survey made December 8th 1808. Its northern portion calls for the David Kennedy, 1434, on the east, and for another David Kennedy, No. 386, a survey of 1785, on the west, thereby filling up the intervening space. Its other calls for older surveys on its north and south, were as shown in the accompanying plan. In the angle formed by its northern and western lines, a serviceberry is called for, which was found and identified. A birch called for at its south-west comer was also identified.
    Between 1793 and 1873, several surveys of adjoining or neighboring tracts recognized the location of the David Kennedy tract, No. 1434, to be south of the east portion of the Ann Kennedy, 305, the east boundary of the two tracts being in the same line. The location of the Ann Kennedy, No. 305, and-of the other David Kennedy tract, 386, is not disputed. In 1854 and 1855, Frederick Zeigler obtained warrants and surveys for the land bounded on the north by the Ann Kennedy, No. 305, on the east by the David Kennedy, 1434, on the south by the Johnathan B. Smith, 5862, and on the west by the Dr. "William Smith, an old survey of 1785.
    The defendants, Kramer and Bell, obtained title to the eastern and northern portion of the Jonathan B. Smith tract, by deed dated July 27, 1859.
    The plaintiff’s (Goodlander’s) title to the David Kennedy, No. 1434, was under a tax sale of said tract as unseated land, made for taxes of the years 1862 and 1863, on June 14th 1864.
    Goodlander subsequently discovered that the Jonathan B. Smith survey, in extending across from David Kennedy, 386, to David Kennedy, 1434, had an actual excess of about 134 perches over its official width (the official distance being 192 perches, and the actual distance about 326 perches). If limited to its official width, the result would be to leave a piece of vacant land between the east-line of the Jonathan B. Smith and the. west line of the David Kennedy, 1434. On this theory, the plaintiff, Goodlander, obtained a warrant and survey in 1870 for this tract as vacant land, being 130 perches wide from east to west, and 445 perches long from north to south. Its calls were, on the east for the David Kennedy, 1434, and the Josiah
      W. Smith, on the south for the Henry Beck, 5618, on the west for the Jonathan B. Smith, 5862, and on the north for the Frederick Zeigler. In making this survey a new line was marked by the surveyor as its western boundary, forming the division line between it and the Jonathan B. Smith. This new line, which Goodlander regarded as his western boundary, was at the distance of forty perches east of an old line of 1793, which was at that time unknown to any of the parties to this suit, but which was subsequently discovered as hereinafter mentioned.
    ■In the fall and winter of 1872, Kramer'and Bell had cut all the timber on the eastern portion of the Jonathan B. Smith tract, owned by them up to Goodlander’s new western line. They directed their jobber, one Pentz, to continue cutting west of that line. To this he objected, having heard (as he testified on the trial) that Goodlander claimed up to that line under a recent warrant. Kramer and Bell, however, claiming that the Jonathan B. Smith tract extended to the David Kennedy, 1434, on the east, directed him to-disregard the Goodlander survey of 1870, which they claimed was laid on their land, and he accordingly crossed the line and began to cut timber on the Good-lander survey.
    The plaintiff thereupon brought this suit, claiming three-fold damages. The defendants were arrested and held to bail. In the affidavit for a capias, filed March 24th 1873, the plaintiff alleged the trespass to have been committed, “ on tract surveyed in name of George B. Goodlander, situate in Brady Township, adjoining No. 1434,” etc. No declaration was filed until December 31st 1878.
    In the meantime, a careful examination of the country was made, and in August 1873, Thomas W. Moore, a surveyor, found a north and south line of 1793, about forty perches west of the Goodlander line of 1870, and about 173 perches west of the recognized location of the western boundary of the David Kennedy, No. 1434. This line of 1793 extended for several miles. Moore at once claimed this line to be the western boundary of the David Kennedy, No. 1434. The effect of this was to move that tract 173 perches west of its accepted location and to leave the land it had been supposed to cover unoccupied. For this land, Moore immediately took out a warrant, on which survey was made and returned.
    Immediately after this, the plaintiff, Goodlander, adopted Moore’s theory, and claimed the line of 1793 as the western boundary of the David Kennedy, 1434. The effect of this was to make that tract cover, not only all the northern portion of the Goodlander survey of 1870, but also to extend it between forty and fifty perches further to the wrest, thereby covering a strip of land which had theretofore been recognized by Goodlander as a part of the Jonathan B. Smith tract, on which strip the defendants had, without objection, cut some three hundred thousand feet of timber. This strip is shaded in the plan.
    The plaintiff afterwards, on December 31st 1878, filed his narr. declaring against the defendants for cutting timber upon a certain tract of land, “ bounded on the north by lands occupied by Zeigler, et. al., on the east by lands claimed by Thomas W. Moore, on the south by other lands of the plaintiff and B. M. IToover, and on the west by a survey in the name of Jonathan B. Smith, the said tract containing four hundred and thirty acres, more or less, and being warrant and survey 1434, in the name of David Kennedy, Esq., said tract being owned by said plaintiff.”
    It further appeared, at the trial, that Jacob Kuntz became the owner of the Jonathan B. Smith survey in 1849; that the owners of that survey always claimed that it extended from No. 386 to No. 1434, giving No. 1434 its recognized location; that upon this location of No. 1434, at the southwest corner where a beech -was called for, there was still standing in 1849, a dead tree, marked as a corner, which Kuntz thought was a beech, and a pitch-pine marked as a witness ; that there also was a line running from this corner north; that Kuntz bought the Smith survey as reaching to that boundary, and so claimed and held it. Kuntz also owned the tract No. 386. He put together and used as one body of land a portion of the eastern end of No. 386, and the eastern part of the Jonathan B. Smith survey. This body included all that part of the Smith survey intervening between the two Kennedy surveys. On it was a saw-mill, a house and several acres of cleared land. These improvements were kept up by successive owners as one property. The body of land appeared to have been claimed continuously and used by the successive owners as one property.
    In 1859, Kramer purchased said property ; he went around the land and saw its boundaries as claimed by the defendants in this suit. He purchased to those boundaries; but it does not appear that the distances were mentioned or the quantity calculated from actual measurement. The amount mentioned in the deeds and tax-books was seven hundred and thirty-five acres. This body of land was assessed on the seated list for 1862-1863,. as seven hundred and thirty-five acres and saw-mill, and the taxes were paid in the seated lists of those years. The land was on the unseated list prior to 1860, but in that year Kramer put put it on the seated list. In 1870, Kramer sold to Bell; a survey was then .made and the tract found to contain one thousand and twenty-t.wo acres net measure, which wmuld be nine hundred and sixty acres with the usual allowance. After this, the assessment was changed to nine hundred and sixty acres. Before this, the parties did not know the number of acres. In 187l, Bell conveyed back to Kramer an undivided half. After this, Kramer and Bell continued to hold together.
    The defendant presented, inter alia, the following points :
    “ 2. The plaintiff’s warrant, survey and patent, in his own name, in 1870, taking up the excess of the J. B. Smith at the east end, as vacant land, and calling for the D. Kennedy, No. 1434, on the east, and for the J. B. Smith survey on the west, together with his claim under his said survey and patent, was inconsistent with the claim he now makes to the land lying west of the said Goodlander survey, on what was represented on that survey as the J. B. Smith tract. This, with the record and the other evidence in the case, constitutes such a recognition of the J. B. Smith title, as to debar the plaintiff from recovering of double or treble damages, under the act of 1824, for the timber cut west of the Goodlander warrant. It is not such a cutting without the consent of the owner as is contemplated by the act of 1824.”
    2 3. Especially is this true, when it further appears in evidence that the defendants claimed and held under color.of the J. B. Smith title, the land immediately west of the Goodlander warrant, in connection with another smaller piece of an adjoining survey, as one property ; on which they, at and before the time the said Goodlander survey was made, as well as up to the bringing of this suit, had various buildings, and from six to twenty acres of cleared land, and a tenant residing there ; a part of which improvements were on the said J. B. Smith survey.”

      Answer. “ These two- points are connected very closely together, and we answer them together. We decline to charge you, as requested in those points. The Act of Assembly declares that persons cutting timber without the consent of the owner, shall be liable to pay double and treble damages, as we have before read to you, and it is for you to say whether this cutting was done with or without the consent of the owner. It is a question of fact for you.” (Second and third assignments of error.)
    lt 4. Under the facts in evidence of the character referred to in the last two preceding points, the plaintiff cannot maintain this action for the timber cut by the defendants, or under their order, before this suit was brought, west of the line of the G. B. Goodlander survey.” Answer. “ We decline to charge you as requested in this point; the plaintiff claims to be the owner of the tract in the name of David Kennedy, No. 1434, and that the timber was cut upon that tract. If you find this claim to be true, then the lines- of the G. B. Goodlander survey cannot qualify the survey [against your finding’.] It is of no importance where the lines of the Goodlander survey are, if you find the facts as stated.” (Fourth assignment.)
    “6. If the location of the David Kennedy survey, as claimed by the defendants, has been recognized as the proper one, up to and about the time this suit was brought — by surveyors and others, whose business or interests had led them to look for it — ■ this constitutes evidence bearing on the location of the survey, especially after the lapse of so great a time, as to render it difficult to prove the existence of the original landmarks.”

      Answer. “ We decline to charge you as requested in this point. The question of this location of this tract of land is for you. In determining it, you must take all the evidence in the cause, and all the circumstances surrounding it; everything that has been brought before you here is for your consideration. You must give it such weight as you deem proper.” (Fifth assignment.)
    “ 7. If, as testified by George Kramer, in 1862 and 1863, the land in dispute, on which this timber was cut, was within defined boundaries of a body of land on the seated list, held by George Kramer, one of the defendants, upon which body of land there were improvements, and the taxes were paid for those years ; then this land was discharged from taxes, and George B. 'Good-lander got no title by the treasurer’s sale of 186é, and cannot recover in this suit.” Refxised. (Sixth assignment.)
    The court in the charge said to the jury, inter alia:
    “ A man who cuts timber is bound to know that he is cutting on his own laird, or that he has the right or liberty from the owner to cut — otherwise he cuts the timber at his peril. He is bound to know the provisions of this Act of Assembly. It makes no difference whether he thought he was on his own land or not, or cutting his own timber or not; he is bound to know whether he is cutting his own or not. This is the provision of the Act of Assembly, and it is binding upon you as it is upon me.”
    Verdict and judgment for the plaintiff for $6,963.18. The defendants took this writ of error, assigning for error the answers to their points and the portion of the charge, as above given.

      McEnally and Jenks (MeCurdy with them) for plaintiffs in error.
    The court erred in refusing to instruct the jury as a matter of law, as requested in our second point, that the plaintiffs’ acts estopped him from claiming that the timber cut by the defendants, west of the line of the Goodlander survey, was cut upon his land without his consent within the meaning of the act of 1824, allowing treble damages. The defendants, as owners of the Jonathan B.- Smith tract, which called for all the land between the David Kennedy, 386, and the David Kennedy, 1434, in its accepted location, had color of title. The plaintiff, by locating the Goodlander warrant in 1870, gave notice that he claimed a portion of the tract claimed by the defendants. .The boundary line of his claim was clearly marked on the ground, and the defendants cut up to it without any objection. When this suit was brought, the plaintiff made no claim for timber cut west of the Goodlander line, as ajspears from his affidavit, for a capias, which complained only of cutting timber on the Goodlander survey. The declaration, filed five and a half years afterwards, showed a different cause of action founded upon a new theory of location of the David Kennedy tract, No. 1434, never dreamed of by plaintiff or defendants till after suit brought, and with which his original claim under the Goodlander survey was wholly inconsistent. These facts were not disputed, and we submit that even if the location of the David Kennedy, No. 1434, as now claimed by the plaintiff, be the correct one, yet it was still the duty of the court to rule as a question of law that the plaintiff’s acquiescence by silence in the defendants’ title, at the time of cutting the timber, to all the land west of the Goodlander survey amounted to implied consent: 1 Greenl. on Evidence, § 197 a. The court, however, submitted to the jury as a question of fact whether this cutting was done with or without the consent of the owner, erroneously assuming that consent, within the meaning of the act of 1824, must be affirmative and cannot be implied. On what principle of law or equity, can Goodlander claim to recover treble damages for the cutting by defendants outside the line which he had himself marked as his boundary line, even though he so marked it in mistake of his rights? While such act might not confirm the defendants’ claim of title to all the land outside of such boundary line, it indicated his consent to their occupation and cutting of timber, until he made a new claim. The court, however, told the jury that if the plaintiff were the real owner of the David Kennedy, No. 1434, and if the true location of said tract covered this land, it was' of no importance where the lines of the Goodlander survey are. This was clearly error : Boults v. Mitchell, 3 Harris, 371; Weitzel v. Marr, 10 Wr. 463; 1 Greenl. on Evidence, §§ 167 to 199; 2 Whart. on Evidence, §§ 1146 to 1148; 1 Bright. Dig. 886 to 889.
    As to the question of the true location of the David .Kennedy tract, No. 1434, the court erred in its answer to our sixth point, which should have been affirmed without qualification. In Pennsylvania, greater effect is given than in England, in the case of private titles, to evidence of general reputation of ancient boundaries, including the declarations of deceased surveyors and adjoining owners: 1 Whart. on Evidence § 189; Caufinan v. Presbyterian Congregation, 6 Binney 59; McCausland v. Fleming, 13 P. F. S. 36; Buchanan v. Moore, 10 S. & R. 275; Wray v. Miller, 2 Harris 289; Bender v. Pitzer, 3 Casey, 333; Birmingham Borough v. Anderson, 4 Wright, 506.
    The court further erred in refusing to affirm or answer our seventh point. If the land was seated and sold as unseated, the plaintiffs title is worthless. If the taxes, for which the land ■was sold, had been actually paid by Kramer, whether assessed upon the good or bad title, or whether the tract contained more or less acres than were designated in the tax books, the plaintiff’s title is worthless. It is the tract which is assessed, not the title or the acres, and this case, although not one of interference, falls within the principle recognized in Hunter v. Cochran, 3 Barr 105. See also Reading v. Finney, 23 P. F. S. 467; Williston v. Colkett, 9 Barr 38; Brown v. Hays, 16 P. F. S. 235.

      Krebs (Wallace with him), for the defendant in error.
    What the plaintiff knew about his own title is not the test of the defendant’s liability under the act of 1824. The test of liability under the Act is that the cutting be done “ without the consent of the owner.” Consent implies affirmative agreement as to a matter of conduct, not mere silence in ignorance of facts or rights. One who undertakes to cut timber on land of which no one is in actual possession, is bound either to know that it belongs to himself, or to obtain the permission of the real owner. The line of 1793, which was proved on the trial to form the western boundary of the David Kennedy, No. 1434, was always on the ground, and was known or might have been known, by the defendants, before they trespassed over it. The circumstance that the plaintiff marked one or twenty lines on his own land, although done in ignorance of its true boundary, cannot relieve the defendants from the legal consequences of their trespass : O’Reilly v. Shadle, 9 Cas. 489 ; Watson v. Rynd, 20 P. F. Smith 59.
    The question of location was settled in the court below, and no assignment of error raised it here, except the sixth, viz.: to the refusal to affirm the plaintiff’s seventh point. This point is not predicated on the evidence, but is a vague and abstract proposition, which it would have been error to affirm.
    June 21st 1881.
   Mr. Justice Trunkey

delivered the opinion of the court

In 1864 the plaintiff purchased the David Kennedy tract No. 1434, at treasurer’s sale, sold for the taxes of 1862 and 1863, assessed as unseated. This tract was warranted in 1792, surveyed in 1793, and patented to Kobert Kennedy in 1815. It does not appear that the plaintiff occupied it or ascertained its location until after the alleged trespass by defendants. Before the cutting of the timber, on September 27th 1870, he procurred a warrant on which he had a survey, and in October of the same year obtained a patent for a tract of land containing three hundred and forty-one acres sixteen and four-tenths perches and allowance, bounded on the west by the Jonathan B. Smith tract, and on the east by tract No. 1434. The defendants owned the eastern part of the Jonathan B. Smith tract, No. 5862, warranted in 1804, and surveyed in 1808, one of them having purchased the same prior to 1859. If the testimony on their part is true they bought and continuously claimed to the same line which the plaintiff made the eastern boundary of his said survey, namely, the west line of the David Kennedy tract. The plaintiff now says he located a new warrant on land which he already owned, and in ignorance of the facts fixed the boundary thereof forty perches east of the line between his and the defendants’ lands, lie therefore demands, in case the jury find he did own the land prior to said location, three times the amount of actual damage done by the defendants in cutting and converting the timber outside the line of said location.

In view of the foregoing facts the court instructed the jury that if they found for the plaintiff for the timber cut between the line of the tract No. 5862, and the line of his said survey, he was entitled to treble damages under the Act of March 29th 1824, P. L. 152. That statute in plain terms makes one who cuts timber on another’s land and converts it, without the owner’s consent, liable to treble damages although he had no knowledge that it was not on his own land: Watson v. Rynd, 26 P. F. S. 59. The ruling of the learned judge was clearly right, unless the plaintiff, within the intendment of the statute, consented to the cutting and taking of the timber. Consent may be shown by acts as well as words. As the man who cuts timber is bound to know it is .on his own land, or that he has the owner’s permit, so the owner of timber land is bound to know where it is and to do no act to mislead an adjoining owner, or adverse claimant. He shall not mark a line on the ground and ostensibly invite a claimant to cut up to that line, and then recover three times the value of the timber. It is not the purpose of the statute to enable him to sell his timber at such prices. Its object is the prevention of willful or^ careless cutting of another’s timber by at once punishing the wrongdoer and amply compensating the owner. Had tlie plaintiff known that tract No. 1434 was located where he now claims, and that the defendants claimed title to the same land, what interpretation would be given to his act ? None other than that he defined his lines and attempted to perfect his title. Had there been a vacancy between tracts 5862 and 1434, as he believed, he would have no right against anybody for cutting timber without the lines of his survey. As respects others the plaintiff’s acts must be treated as if he had known his rights. He who misleads another by positive acts as to the extent of the claim, shall be taken as inviting or consenting, and it makes no difference that he was ignorant of his title or of the location of his land. The defendant’s second point should have been affirmed. That portion of the charge set forth in the seventh assignment, though correct, should have been accompanied by instruction that the acts of the plaintiff, in connection with the uncontroverted facts, evidenced that he gave liberty to the defendants to cut up to the line that he had marked on the ground. Were these acts not shown by written evidence, and other facts virtually conceded, the instruction should have been that if the facts assumed in the second and third points of defendants were true they were not liable for treble damages.

Although the plaintiff’s conduct was equivalent to such consent as in good conscience ought to bar his right under the statute to recover three times the value of the timber, it did not defeat his title to the land, of which the timber was a part. Constructively, the party who has good title is in possession of unimproved land, and the evidence does not take this case out of the rulé. The defendants’ fourth point was rightly refused.

We think the circumstances of this case required affirmance of the defendants’ sixth point' namely, “If the location of the David Kennedy, as claimed by the defendanfs, has been recognized as the proper one up to and about the time this suit was brought — by the surveyors and others whose business or interests led them to look for it — this constitutes evidence bearing on the location of the survey, especially after the lapse of .so great a time as to render it difficult to prove the existence of tiie original landmarks.” The facts in this point are not assumed, and the jury would have been warranted in finding them. A number of surveyors, also persons interested, had had occasion to look for the location of the tract, and if all, not part, including the plaintiff himself, had so recognized its location it was evidence to consider, its strength or weakness depending on the other evidence in the cause. If there were no other evidence this would determine the location, and would be admissible for the same reason that hearsay of deceased persons is evidence in case of an old boundary. Because there is other evidence this should not be excluded. Except the denial, the remarks of the court in answer to the point were entirely correct.

We are of opinion that it was error to deny the defendants’ seventh point. George Kramer testified that he bought the land as one body, including the eastern part of the Smith survey, No. 5862, and a small part of the David Kennedy tract, No. 386 ; that the boundaries were described and shown to him by Kuntz and Bailey, and extended to the David Kennedy line on the east, including the land in dispute within his lines; that there were four or five acres cleared, a house, stable and fruit trees, also a saw-mill on the land at that time ; that the improvements were partly on both tracts, and he held the land together as one property; that in 1860 he changed the land from the unseated to the seated list and paid the taxes for the years 1861, 1862 and 1863, and for years subsequently. If these were the facts, a sale of part of the land as unseated for the taxes of 1862 and 1863 vested.no title in the purchaser. Kuntz owned the land, as he says, for several -years prior, had it surveyed by David Ferguson, the east line being where the defendants now claim, and the land now in dispute was within his lines. Both Kuntz and Kramer claimed to the Kennedy tract, No. 1434, they did not include any part of that tract knowingly, and contend that the land in dispute is part of the Jonathan B. Smith tract. The real question is, whether the land in dispute was actually included within defined boundaries, the whole being assessed as seated. This would not be alone determined by the number of acres in the assessment, but the quantity would be a fact to consider with other testimony, having greater or less weight according to the circumstances. Very likely the court was of opinion that if Kramer had mistakenly claimed to the east line of tract, No. 1434, thereby including it in his body of land, that did not make it a part of his seated tract extending only to the west line of No. 1434 ; and that, if said tract is located where the plaintiff claims, it is vested in him by the tax sale and treasurer’s deed. Nevertheless the defendants were entitled to an affirmance of the poiut, though with full and proper instructions they might well have found that the land in dispute is part of the David Kennedy tract, No. 1434, and that said tract was rightly assessed and sold as unseated.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Kramer and Bell versus Goodlander.
    (No. 2.)
    1. Where the location of a traot of land is in dispute, declarations of a deceased surveyor, made by him when on the ground and at the time of examining the lines of the tract, are admissible in evidence. The more careful and thorough such surveyor’s examination was, the greater the weight which should be attached to his declarations.
    3. In determining whether or not certain land is included within a seated traot, upon which taxes have been paid, not only will the quantity of acres included in the assessment betaken into account, but also all the other evidence in the case, under proper instructions from the court.
    3. A tax sale of land as unseated will transfer qo title to the vendee, when, as a matter of fact, the land sold constitutes part of a seated tract, upon which the taxes have been paid.
    Jane 14th 1881. Before Me'rcur, Gordon, Paxson, Trunkey, Sterrbtt and Green, JJ. Sharswood, 'O. J., absent.
    Error to the Court of Common Pleas of Glearfield county : Of May Term 1880, No. 187.
    Trespass, by George B. Goodlander against George Kramer, 'William E. Bell and others to recover double and treble damages for cutting and converting timber trees on plaintiff’s land between March 24th 1873 and the bringing of this suit, on March 14th 1874. This was the second suit between these parties.
    At the trial, before Orvis, J., the plaintiff claimed to recover as owner of the tract of land known as the David Kennedy survey, No. 1434, upon which the timber was cut, on his title to said tract as set forth in the first case of Kramer and Bell v. Goodlander (above reported). The defence was the same as that in the preceding case.
    Jacob Kuntz, one of the former owners of Kennedjr survey, No. 386, and the Jonathan B. Smith survey, testified on behalf of the defendants, that he became owner of the tract in 1847, that he employed one David Ferguson to survey it for him, that they started at a red oak at the northeast corner of the David Kennedy survey, No. 386, and ran east to a north and south line pointed out by Zeigler, a proprietor of adjoining lands, that they kept on southward on this line until they reached a corner where they found a dead beech tree. [David Kennedy tract, No. 1434, calls for a beech tree at its southwestern comer. Yide preceding case.] That this line was the one defendants in this suit claimed to be their eastern boundary; that this surveying was done thirty or tliirty-one years previous to the trial, and that the surveyor, F’erguson, had since died. Defendants then proposed to prove by the same witness “ what David Ferguson, surveyor, who made the survey on the ground, since dead, said when on the ground at the time of making the survey for Kuntz, the owner of the J. B. Smith warrant, as to what the beech testified to by Kuntz was, also as to what he said the line on which he found it was, that is, the north and south line; the parties being then on the ground searching for the west line of David. Kennedy, No. 1434, as the eastern boundary of Jonathan B. Smith.”
    The plaintiff objected on the ground that the proof showed that neither surveyor nor witness examined either line, corner, or witness to corner, to ascertain its age, and the means of knowledge being wanting, the testimony was incompetent; that the evidence offered was purely hearsay, irrelevant, and incompetent ; that the declarations were merely those of a deceased surveyor employed by an owner of an opposing title, as to a fact of which he had no knowledge, never having been on the ground before that date. Objection sustained. Exception. (First assignment of error.)
    The defendants requested the court to charge, inter alia: 6. If, as testified by George Kramer, in 1862 and 1863, the land in dispute, on which the timber was cut, was within the boundaries of a body of land in the seated list, held by George Kramer,' one of the defendants, upon which body of land there wmre im - provements, and the taxes paid for those years — then this land was discharged from taxes, and George B. Goodlander got no title by the treasurer’s sale of 1864, and cannot recover in this suit.” Answer. “ We answer this point as we have instructed you in our general charge. If the assessment on the seated list by Kramer of seven hundred and thirty-five acres, included this land in dispute, and you find from the evidence that the taxes of 1862 and 1863 were paid before the 13th June 1864, then the land would be discharged from taxes, and the sale would give no title. If the taxes were not paid until after the treasurer’s sale of June 13th 1864, the purchaser got a good title by that sale, and if the David Kennedy is located where the plaintiff claims it, your verdict should be for the plaintiff.”
    The court charged the jury (inter alia) as follows : “ The defendants' allege that they had paid all the taxes upon this land ; that they had purchased the old David Kennedy tract, No. 386, and also the Jonathan B. Smith, and that they ran the lines, and in doing so, included this land in dispute, and that the number of acres upon which they paid taxes was seven hundred and thirty-five, and in order to make up that number of acres they would include all this land in dispute. They claim that they have held that body of land, and paid taxes upon each assessment, including that of 1862 and 1863. It is alleged by. the •plaintiff that there are several hundred acres more than seven hundred and thirty-five acres within the lines now claimed by the defendants, and that their payment of taxes did not cover the David Kennedy. This is a question you must determine, whether they had this land in dispute assessed on the seated list, and whether the assessment of seven hundred and thirty-five acres did actually include this part of the David Kennedy, No. 1434.”
    The jury found for the plaintiff, assessing damages at $4,988, and judgment was entered on the verdict. The defendants thereupon took this writ, assigning for error the refusal to admit the testimony of Kuntz as to the declarations of Ferguson; the answer to defendant’s sixth point; and the portion of the charge of the court above given.

      McEnally and McCurdy, for plaintiffs in error,
    in support of the first assignment of error, cited: Caufman v. Presbyterian Congregation, 6 B.inney 59; Buchanan v. Moore, 10 Serg. & R. 275; Hamilton v. Menor, 2 Serg. & R. 70; McCausland v. Fleming, 13 P. F. Smith 36 ; .1 Brightly’s Digest, pp. 977-988.
    The burden of proof is on the claimant under a tax title to show all the requisites necessary to make a tax title good. Among these requisites is this, that the tax has been due one whole year or more, at' time of sale, and remained unpaid.
    The facts of the case were erroneously presented by the court to the jury in that part of the charge which is taken as the third assignment of error. The defendants did not contend “ that the number of acres upon which defendants paid taxes was seven hundred and thirty-five, and in order to make up that number of acres, they would include all this land in dispute.”
    Land is assessed in bodies as tracts and not by the acre; acres are given only for the purpose of designation. Such designation seldom agrees accurately with actual measurement, and it is not important whether it does or not: Williston v. Colkett, 9 Barr 38; Brown v. Hays, 16 P. F. Smith 235; Reading v. Finney, 23 P. F. Smith 467.

      Wallace and Krebs, for defendant in error.
    The declarations of a surveyor on a question of boundary are competent evidence as a general rule, but where the ¡moof itself shoves that the declarations offered were mere guesses, and not founded on examination or professional knowledge of the locality, they are to be treated as all other declarations are — as mere hearsay, and inadmissible. Tbe rule is correctly stated in McCausland v. Flem ing, 13 P. F. Smith 36.
    The argument that Kramer thought he owned the land in controversy, and paid taxes on seven hundred and thirty-five acres, which he thought covered it, is too ideal for these practical days. Such .a mode of payment of taxes will not sustain the legitimate expenses of government, or defeat the remedies given to cover payment of taxes for every acre of land within this state.
    June 22d 1881.
   Mr. Justice Trunkey

delivered the opinion of the court,

Having proved by the witness who owned the Smith tract about thirty years ago, that he then employed David Ferguson, a surveyor, to trace the lines, and that said Ferguson is dead, the following offer was made: The defendants propose tb prove by the witness on the stand, Jacob Kuntz, what David Ferguson, a surveyor, who made the survey on the ground, since dead, said, when on the ground at the time of making the svrvey for Kuntz, the owner of the J. B. Smith warrant, as to what the beech, testified to by Kuntz was, also as to what he said the line on which he found it was, that is, the north and south line. The parties being then on the ground searching for the west line of David Kennedy, No. 1434, as the eastern boundary of Jonathan B. Smith.” This was rejected as purely hearsay, the surveyor not having examined the line or corner to ascertain its age never having been on tbe ground before. Had be ascertained its age, what he said respecting the line would» have been admissible, yet purely hearsay. From an early day in this state, in litigation respecting boundaries, it has been competent to prove, after the death of a surveyor who had examined a line, what lie said respecting it at the time and on the ground. The more careful and thorough his examination the greater weight his testimony would have if living, or what he said at the time, if dead. But if lie examined the line, he is a competent witness, and after his death his statements respecting the line, made at the time of the examination, may be proved.. The offer should have been admitted.

We are of opinion that there was error in the answer to defendant’s sixth point and in the charge upon the same subject. The question presented in the. last three assignments is substantially the same as was considered in tbe preceding case between the same parties upon a similar point. If the land was properly assessed on the seated list a sale of it as unseated was Aroid. It is not a qnestiou of payment of taxes before tbe date of the sale, but whether the land sold was part of a seated tract which was assessed as seated. The defendants did not allege that they included the land in dispute or any part of it, in order to make tip Y35 acres ; but they did allege that they returned and had assessed as seated a body of land defined by certain boundaries, with improvements thereon; that it was bounded on the east by tract No. 1434, and that the land in dispute was included within said bounds. To show that the number of acres named in the assessment exceeded or fell short of the actual number within said bounds, by no means determines the question. If the quantity in the assessment was too great it does not follow that the disputed laud was included ; nor if not enough, that it was excluded. The quantity returned and assessed would be a fact to consider in ascertaining if the land in dispute was a part of the tract assessed. The defendants claim their tract extended to No. 1434, and that No. 1434 is east of the land in suit.

Judgment reversed and venire facias de novo awarded.


text:
    Parks et al. versus Boynton.
    1. Where, in an action .of ejectment, there can be no room for doubt as to what has been actually tried and found by the jury, the court may, by virtue of the provisions of the Act of March 14th 1872, § 1, Pampli. L. 25, permit the description of the tract in question filed by the plaintiff to be so amended as to conform to the verdict.
    2. The said section of the above Act, as thus applied, does not infringe *the -right of trial by jury, and is not, therefore, unconstitutional.
    3. Where, in endeavoring to fix the location of a tract of land, marks are actually found upon the ground indicating .the corners of an adjacent and earlier survey, which corners are called for in the survey of the tract iu question, such marks will be held of equal importance in determining the true location of the tract with other marks found upon the ground which were made on the survey of the tract itself.
    4. Where several tracts of land are surveyed together in one block, but the interior lines of division are not run, the presumption is only prima facie that such interior lines were intended to be parallel to tbe lines bounding the entire block. Such presumption may be overcome by the existence of landmarks indicating that the contrary is the case.
    5. In ascertaining the location of a tract of land, actual marks on the ground will control courses, calls and distances called for by the survey.
    6. Where several tracts are surveyed in one block, but the lines of division are not run between them, and subsequently the block is found to contain more land than the aggregate amount called for by the surveys of the tracts within it, the proper course is to divide the surplus proportionably among the several-tracts,

      7. Three tracts of land, A, B and 0, were laid out in a block, but the lines of division were not run between them. All three tracts Imd a common western boundary, the northern and southern ends of which were' clearly marked on the ground. The total length of the common western boundary exceeded the aggregate length of the western lines of the tracts as called for in the survey. Tracts A and B had also a common eastern boundary, the northern and southern ends of which called for corners on an adjacent tract, which corners were also found marked on the ground. The common eastern boundary line of tracts A and B was greater than the aggregate length of the western lines of those tracts as called for in the survey. Held, that in order to fix the division line between tracts A and B, the proper course was to divide proportionably between all three tracts the surplus on the western line, and to do the same on the eastern line as between tracts A and B, and then to run a line from west to east between the points thus ascertained on the east and west respectively, to be the points of division between the tracts.
    June 15th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trünkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Olearfield county : Of May Term 1881, No. 78.
    This was an action of ejectment brought July 24th 1877, by Jonathan Boynton against Thomas Parks and the Olearfield Fire Brick Company for a tract of land containing about ten acres, represented by the shaded strip on the plan on next page.
    On the trial before Mayer, P. J., the following facts appeared : The Charles Stewart, John Vaughn and’William Lewis tracts were surveyed as one block on June 17th 1793. Its northern, southern and western boundaries were established by the corners and lines ofjtóder surveys of 1792, tlie location of which is undisputed. TTie Stewart, Vaughn and Lewis tracts* called for each other, but their interior division lines were not • run or marked on the ground. The total official distance of the three surveys along the western line is 625 perches. The distance by actual measurement is 637-|~ perches, thus leaving a surplus of 12£ perches. The eastern boundary of the John Vaughn and William Lewis was, in part, the Jane Campbell, surveyed in 1785, as shown in the plan, the location of which is not disputed. The Vaughn called for the northwest corner of the Campbell, and the Lewis called for its southwest corner, and both called for a portion of its west line. The official distance of the west line of the Campbell is 222 perches; the distance by actual measurement is 233.7 perches.
    The plaintiff showed title to a tract of land, being the southwestern part of the John Vaughn tract, “ Beginning at a post on the southwest corner of the [John Vauglm] tract and the northwest corner of survey in the name of William "Lewis, thence along the dividing line of the William Lewis and John Vaughn surveys 195 perches to a post, thence along and by Jane Campbell survey north,” &c.

      The defendants showed title to a tract, being the northwestern part of the William Lewis tract, adjoining the John Vaughn survey on the north. The defendants and their predecessors in title, had occupied, cut timber, and removed fire clay from the strip in question for a long time prior to the bringing of this action.
    The plaintiff claimed, that in the absence of any marks on the ground showing that the interior division line had been run between the John Vaughn and the William Lewis at the time of the survey, and in the absence of evidence of an agreement between the owners of said two adjoining tracts fixing the division line, the surplus of 12-J perches, in excess of the official call for the western line of the Stewart, Vaughn and Lewis block, should be apportioned equally between the three tracts; whereby •the division line between the Vaughn and Lewis tracts would be the southern line of the tract in dispute (marked in plan b b). The plaintiff further claimed that it was within the province of the court to determine the location of the said division line, by apportioning the said surplus equally between the said tracts.
    The defendant Parks showed that he entered into possession of his tract in 184.-6; that in 1849, he caused a survey to be made by one Cuttle, who ran the division line between the Vaughn and Lewis tracts along the northern line of the tract now in dispute (being the line marked on the plan a a). This line was marked on the grpund, and its location is undisputed. While there was no evidence to show that the then owners of the Vaughn tract knew of the running of this line in 1849, yet the defendant proved that he and his assignees of timber rights thereafter cut timber up to that line and used the land as farmer’s usually use their woodland, for fire-wood and fencing, without molestation or complaint from the then owners of the adjoining part of the Vaughn survey, nor until the plaintiff derived title by a sheriff’s sale in 1876. The defendants contended that by such acquiescence, the line of 1849 became established as a “ consentable line,” although the predecessors in title of the plaintiff did not directly join in making it.
    It further appeared in evidence, that if the southwestern corner of the Jaue Campbell tract were adopted as the starting point, from which to locate a division line between the Vaughn and Lewis, that line would be where the plaintiff claimed, viz., the southern line of the tract in dispute; but that if the northwestern corner of the Jane Campbell tract be taken as the starting point, the division line between the Vaughn and Lpwis would be located north of the.liue of 1849, which the defendants claimed.
    The court, at the request of plaintiff’s counsel, instructed the jury that there was no sufficient evidence to establish a consentable division line, and that the verdict must be for the planitiif. Yerdict accordingly for the plaintiff.
    The plaintiff subsequently took a rule to show cause why an amended description of the tract in controversy should not be filed, which rule the court, after argument, made absolute, saying, in an order filed: “It appearing to the court that this
    amended description conforms to what was tried by the jury and found by the verdict, this amendment is, therefore, allowed and ordered to be filed.”
    Judgment having been entered on the verdict the defendants took this writ of error, assigning for error, inter alia, the action of the court in directing a verdict for the plaintiff and in allowing the amendment of the description after verdict.

      Krébs (with whom was Wallace), for the plaintiffs in error.
    —There was ample evidence of the disputed question of fact as to the location of the division line ; but instead of submitting it to the jury, the court directed a verdict for the plaintiff, on the theory that it was within-the province of the court to apportion the surplus arising from the discrepancy between the official distance and the actual distance, equally between the throe tracts of the block. This was manifest error. The line of 1849 was openly made and visibly marked and recognized as the division line by the owners of both tracts. Whether the acts of the parties were such as to constitute it a consentable line was a question for the jury. The court, however, not only assumed to decide this question of fact, but disregarged all the evidence of location furnished by the established corners of the Jane Campbell survey on the east.
    The court also erred in permitting the amended description to be filed, five months after the verdict. The case was tried on a descriptive claim which was so vague that the sheriff could not have enforced a writ of habere facias possessionem. The amendment was allowed by virtue of the Act of March 14th 1872, Pamph. L. 25; but we contend that this act does not apply where the court direct a verdicc and no issue of fact was settled by the jury. If it does apply to such a case, the act is unconstitutional. Otherwise, where the disputed fact is the true location of a boundary line, the court may assume a particular location and instruct a verdict establishing it, then permit an amendment, changing the description to conform to the assumed location, and enter judgment on the verdict; whereby the defendant would be choused out of his land without a trial by-jury of his title to the land as covered by the amended description.

      McEnally (.McCurdy with him), for the defendant in error.
    —The mere fact that one party causes an alleged division line to be run by a surveyor without the knowledge of the owner of the adjoining tract, and afterwards commits trespasses up to that line, is not sufficient to take a case to a jury on the question of a consentable line: Adamson v. Potts, 4 Barr 234. To establish a consentable line, it is essential to show that both parties, knowing their respective rights or claims, by acts in relation thereto, show that they mutually adopt a line as a division.
    As to the question of location. — The exterior lines of the block are fixed. The interior lines were described but not marked on the original survey. In such case, in the absence of evidence of a consentable line sufficient to sustain a verdict, the interior lines are to be fixed by legal principles, and judgment will not be reversed, because the judge declared the true eifeet of the evidence, instead of submitting it to the jury : Eister v. Paul, 4 P. F. S. 196 ; McCracken v. Roberts, 7 Harris 390; Mathews v. Hegarty, Wr. 64; Hagerty v. Mathers, 7 Casey 348. The amendment of the description after verdict came within the purview of the Act of 1872, the object of which was to prevent the failure of justice through, technical defects after 'a fair trial on the merits.
    June 22d 1881.
   Mr. Justice Trunkey

delivered the opinion of the court

It would be scarcely possible that evidence could more clearly show the location of the land which the plaintiff claimed to recover. The line of 1849 is marked on the ground, both parlies proved it and concede that it is the north boundary of the land in controversy, which is a strip about eight perches wide and.one hundred perches long, bounded on the south by the original line of the John Vaughn survey, as described in the praecipe. In the amended description said line of 1849 is the north boundary, the south is called the original line of the Vaughn survey, and the strip is seven and three-tenths perches wide and ninety-four and four-tenths perches long. This amendment was directed under the Act of March 14th 1872, a salutary law that enables the court to make the record conform to what was tried before the jury and found by the verdict. Where, as in this case, there is no room for doubt as to what was tried and found, it is the duty of the court to.allow the filing of an amended description if one be needed. The ingenious argument of the plaintiffs in error failed to convince us that such amendment infringes the right of trial by jury, or that the act is unconstitutional.

A division line between the Vaughn and Lewis tracts was not marked at the time of the original survey. The west line of these tracts, extended, is also the west line of the Stewart tract, the three in same block, and the location of the southwest corner of the Lewis and northwest corner of the Stewart being known, controls the intermediate corners of the tracts on that lino. By the official survey the west line of the Stewart tract is two hundred and twenty perches, of the Vaughn, two hundred and fifteen perches, and of the Lewis, one hundred and ninety perches. The actual distance is greater, which, proportionally distributed, locates tbe northwest corner of the Lewis tract one hundred and ninety-three and four-tenths perches from the known southwest corner. Taking this fact as true, the court directed a verdict for the plaintiff, evidently treating the aforesaid corners as the sole basis for the line of division.

On the east of these tracts were lands surveyed in 1785, and the east boundary from tbe southeast corner of the Lewis tract to the northeast corner of the Stewart, is by no means a direct line. The Jane Campbell tract is bounded north, south and west by parts of the Vaughn and Lewis tracts, the west line of these tracts being only one hundred and eight-five and four-tenths perches from the west line of the Jane Campbell. The southwest corner of the Jane Campbell tract is a biack oak, and the northwest corner a white oak, and the said black oak is a corner in the official survey of the Lewis tract, and the white oak a corner in the same survey of the Vauglm. These are as well defined as any other landmarks in the Lewis and Vaughn surveys, and have no less power because they are also the marks of an older survey. Tire official distance between these corners is, along the Lewis tract one hundred and twenty-seven perches, and along the Vanglm tract ninety-live perches, but the actual distance is greater, and should be apportioned by the same rule as was applied in fixing the division corners on the west line of the tracts. The same witness who testified on behalf of plaintiff fixing the line to which he recovered, also said that if the line were determined by the Jane Campbell corner, Parks would go further north — north of the line to which he claims. It is contended by the defendants, that if the line surveyed and marked in 1819 be set aside, the division line should be settled by said corners of the Jane Campbell tract. Why part of the ascertained landmarks should be cast aside so as to favor the owner of either the Vaughn or Lewis tract, is not explained by either party. No rule imperatively requires that the division line sliall be parallel with the northern or southern tract line, and though it would be so presumed in absence of landmarks, these maiks will control. If the ascertained corners on the west serve to locate the point of division on that, line, so will those on the east locate the point on the east line, and the division will be by a direct line between these points, whatever its course. This was decided in Watson v. Jones, 4 Nor. 117, where it is shown that all the ascertained marks on the ground are to be considered, remembering the rule that where.these are found, courses, calls and distances must give way.

If any question of fact depending upon oral testimony be in dispute it must be submitted to the jury. If there be dispute as to the location of any comer or corners, and consequently of where the division line should be, the jury shall decide it, unless the parties agree to submit the fact to the court or a referee. The iirst assignment is sustained. We are of opinion that there is no error in the rulings set forth in the remaining assignments.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Stewart’s Appeal.
    1. A. conveyed to B. property of considerable value by a deed in fee simple, in the body of which the consideration of the conveyance was expressed to be ‘'valuable and sufficient.” Annexed was a receipt signed by the grantor for the sum of one hundred dollars. Said deed was regularly signed, sealed, acknowledged, delivered and recorded. Held, that the mere fact that the sum receipted for was inconsiderable as compared with the true value of the land conveyed, was not of itself sufficient to puta subsequent bona fide purchaser for value from B. upon notice of the fact that there was a secret trust for the benefit of A.
    2. In order to show by parol that a deed absolute upon its face is a mortgage, the proof must be clear, explicit, and unequivocal.
    3. Where a bill in equity is filed, whereby it is sought to have a deed absolute on its face decreed a mortgage, and the complainant and respondent directly contradict each other in their testimony as to what was the true intention of the parties, the court will not, in the absence of other evidence', enter the decree prayed for.
    4. The mere fact that the consideration expressed in such a deed is somewhat greater that was actually paid by the grantee is of no weight as supporting the theory'that the instrument was intended to be a mortgage, where it appears that such instrument was made and the consideration thereof inserted under the direction and superintendence of the grantor without the grantee’s knowledge or assent.
    June 15th 1881. Before Shabswood, C. J., Mebcub, Gob-don, Paxson, Tbunket, Stebbbtt and Gbeen, JJ.

      Appeal from the Court of Common Pleas of Clearfield county: In Equity: Of May Term 1881, No. 107.
    T.liis was an appeal by Samuel E. Stewart from a decree of the said court, sustaining the exceptions of William Hegarty to the report of a master.
    The bill in equity was filed October 16th 1874 by William Ilegarty against James A. Hegarty and Samuel E. Stewart, praying that a certain deed be declared void and be delivered up to be cancelled.
    The material facts, as reported by the master, were as follows: On December 31st 1864, the plaintiff, William Hegarty and wife, executed and delivered the following instrument:
    Know all men by these presents, that we, the undersigned heirs at law of Samuel Ilegarty, late of Woodward township, Clearfield county, Penn’a, deceased, and as such heirs legally entitled to a share or shares of the real and personal estate of said deceased, so far as said property has not been otherwise disposed of by some valid will of said decedent, do hereby, for a valuable and sufficient consideration, unto each of us respectively paid, assign, set over and convey to James A. Hégarty, of Guelich township, Clearfield county, Penn’a, his heirs and assigns, all the right, title, interest and claim that we respectively have or may have in the real and personal property of the said Samuel Hegarty. It is however expressly understood that the said James A. Hegarty takes this conveyance of our title at his own risk, as to the said title, and in case of future'litigation in regard to the will of said Samuel Hegarty, or other matter connected with said estate, we are' not to be made liable for any costs that may accrue, nor are we in any way to warrant or defend the said J ames Hegarty, his heirs and assigns.
    “Witness our hands and seals, this 31st day of December, A.D. 1864.
    . “ William Hegarty, [l. s.]
    “ Jemima Hegarty, [l. s. j
    “ Witnesses present, II. Swan, W. B. Alexander, G. W. Slioff.
    “Woodward, Dec. 31st 1864.
    “Received on the within agreement, of the within named J. A. Hegarty, one hundred dollars.
    “William Hegarty.”
    Duly acknowledged March 14th 1865.
    Recorded Feb. 5th 1865.
    This instrument was executed under the following circumstances : Samuel Hegarty, a brother of the plaintiff, and of the defendant, Janies A. Hegarty, died March 21st 1864, leaving a widow, but no children, and five brothers and two sisters, as his heirs at law. lie left a will dated within one month of his death, which was admitted to probate April 6th 186-1 (no caveat being filed), by which he devised the bulk oí his property to charities. No immediate steps were taken to contest the validity of the will, although such proceedings were discussed between'the heirs. The plaintiff averred that the true intention and object of the above-recited deed was to enable James Hegarty to contest the said will on behalf of the plaintiff in connection with others of the heirs of Samuel Hegarty, and that James Hegarty was to receive for his own use, in consideration of his paying the costs of litigation, a portion of whatever share he might collect for the plaintiff out of Samuel Hegarty’s estate ; that he (plaintiff) had signed the deed without rea'diug it, believing it to be a power of attorney for the above-mentioned purpose. The master found these allegations to be substantially true. In 1868 or 1869, the plaintiff discovered that James A. Hegarty claimed the whole of his interest under the above deed ; but took no active steps to assert his rights.
    A special Act of Assembly was passed February 11th 1869 (Pamph. L. 144), authorizing the executor of Samuel ITegarty, deceased, to sell his real estate.
    On May 31st 1870, a bill in equity was filed by James A. Ilegarty and others, heirs of Samuel ITegarty, deceased, against the executor of Samuel Hegarty and others, to restrain the sale of real estate under the said Act of Assembly, and praying that so much of the will of Samuel ITegarty, deceased, as devised property to religious uses, be declared void. • This, cause Was proceeded in, and a final decree was entered in the court of Common Pleas of Clearfield county, October 24th 1872, in accordance with the prayers of the bill, whereby the said will was declared void pro tanto,which decree was affirmed by the Supreme Court, July 2d 1874. (SeeHegarty’s Appeal, 25 P. F. Smith 503.)
    In the meantime, on June 17th 1871, James A. Hegarty and wife, by deed of that date, recorded June 13th 1872, conveyed to the defendant Samuel E. Stewart and his heirs, all the interest in the estate of Samuel ITegarty, deceased, which had been conveyed to him by William Hegarty by the deed of December 31st 1864, except an undivided one-fonrth joart, which had previously been conveyed to A. J. McEnally. The consideration mentioned in this deed was $3,000. The master reported that the real consideration was the payment of three notes, previously given by James A. Hegarty and indorsed by Samuel E. Stewart, amounting to about $2,500, which Stewart had paid. James A. Hegarty testified that this conveyance, though absolute on its face, was in fact a mortgage to secure Stewart for such payment. Stewart denied this, and asserted that he was a bona fide purchaser for value without notice of any title or equity in William Hegarty. The master reported that the parol testimony of James A. Hegarty, being contradicted by Stewart, and not corroborated, was insufficient to convert tfte absolute deed into a mortgage, and that Stewart was a bona fide purchaser for value, without notice of any trust or equity in favor of William Hegarty.
    On May 22th 1872, William Hegarty and wife executed the following paper:
    “ To all to whom these presents shall come:

    “We, William Hegarty and Jemima Hegarty, his wife, of Woodward township, Clearfield county, Pennsylvania, the alleged grantors in a paper writing, dated December 31st 1864, recorded February 5th 1866, in the office for recording deeds in and for Clearfield county, in Deed Book X. page 585, purporting to be acknowledged March 14th 1865, -before George W. Shoff, Justice of the Peace, do hereby declare that the said paper writiug was obtained from us by fraudulent representations of the contents and without our full and free consent to the same being obtained, in that the said paper was represented to us by the grantee, James A. Hegarty, to be an authority from us to him to act as our agent in collecting our share of the estate of said Samuel Hegarty, deceased, and ivas not intended to be, nor was it said to be, a sale of our interest in the realty aforesaid and in the personalty of the said Samuel Hegarty, but was intended to be and was a mere authority to act for us. Wherefore, we do hereby revoke and annul the powers given by the said paper writing unto the said James A. Hegarty, his heirs and assigns, and do hereby warn and forbid all persons against recognizing the said papers as authority or power from us of any kind unto the said James A. Hegarty, his heirs and assigns, or any of them.
    “ Witness our hands and seals this 22d day of May, A. D. 1872. William Hegarty, [l. s."
    Jemima Hegarty, [l. s.’
    “ Witness present, Reuben Hegarty.
    “ Recorded May 22d 1872.”
    The master reported as a matter of law that, under the foregoing circumstances, and in view of the fact that although William Hegarty knew in 1868 or 1869 that James A. Hegarty claimed to be the owner of the entire interest conveyed to him b}’ the deed of December 31st 1864, he took no steps to assert his alleged rights until after the conveyance of James A. Hegarty to Samuel E. Stewart in 1871, the plaintiff had no equity as against Stewart; and he therefore recommended a decree dismissing the bill.
    The plaintiff filed exceptions to the report, inter alia, to the master’s finding that Stewart was a bona fide purchaser for value without notice of any title or equity in William Hegarty. The court (Orvis, A. L. j.), without filing an opinion, entered the following decree:
    “Ana now, 11th January, A. D. 1881, this cause coming on to be heard, and after due consideration had, the exceptions of the complainant to the master’s report are sustained in so far' as the master finds Samuel E. Stewart to have been a bona fide purchaser for value without notice. But believing from all the facts that James A. Hegarty was entitled to hold by virtue of the agreement with William Hegarty an undivided one-half of the one-seventh interest in the estate of Samuel Hegarty, deceased, which would otherwise have descended to William Hegarty, the complainant; and that the said James A. Hegarty had sold and conveyed his interest to Samuel E. Stewart, that the said Samuel E. Stewart did take a good and valid title to an undivided one-half of the one seventh interest aforesaid, whether he hold by mortgage or deed.

      “ Therefore, it is hereby ordered and decreed, that the decree of the master dismissing the complainant’s bill, be and is hereby reversed. And it is further ordered and decreed, that the complainant, William Hegarty, be and is hereby entitled to receive of the moneys arising from the sale of the said one-seventh interest, the one-half part thereof, and that Samuel E. Stewart, one of the respondents, be and is hereby entitled to receive the other one-half part thereof, less the costs of this proceeding.”
    Samuel E. Stewart thereupon took this appeal, assigning for error the said decree.

      Daniel W. McCurdy, for the appellant, relied on the master’s report.

      Wallace & Krebs, for the appellee.
    There was no laches on the part of the complainant. The deed by James A. Hegarty to Stewart of June 17th 1871, was the first affirmative act by which the complainant was informed that James A. Hegarty repudiated the parol trust, reposed in him by the complainant, and before that deed was recorded, the complainant executed and recorded the paper of revocation.
    The instrument of December 31st 1864, from William Hegarty and wife to James A. Hegarty, although called by the master an absolute deed, was not so in form, and it bore on its face enough to put a purchaser on inquiry as to its real nature. Its opening words, “Know all men by these presents that we the undersigned, heirs at law of Samuel Ilegarty,” &c., and the reference in it, “ in case of future litigation in regard to the will of Samuel Ilegarty,” indicate that it was a paper, intended to be signed by other of the heirs of Samuel Iiegarty, to assign their interests to James A. Hegarty to enable him to contest the will of Samuel Hegarty on their behalf. No money consideration is mentioned in the paper. The evidence showed that the real estate of Samuel Ilegarty included about one thousand eight hundred acres of valuable timber laud, and that the share of each of the seven heirs would be worth between $30,000 and $40,000. Stewart well knew this fact. The receipt at the foot of the deed, which reads, “ received on the within agveevoent of the within named J. A. Ilegarty one hundred dollars,” was of itself notice to Stewart that VVilliam Ilegarty did not intend to sell out his entire interest for such a pittance. A prudent man would have inquired, How much is yet due on the agreement? Why do you sell your interest for $Í00, when you claim it to be worth $30,000 ? Why was not the paper in the usual form of a deed ? What is the litigation referred to in the paper ? These circumstances were sufficient to have put Stewart on inquiry, which would have led to a discovery of the equity which William Ilegarty is now asserting ; and where one remains willfully ignorant, where the rights of a third person are concerned, he is chargeable with the knowledge which he avoids; Spencer’s Appeal, 30 Smith 317; Jaques v. Weeks, 7 Watts 267; Brush v. Ware, 15 Peters 112; Lewis v. Bradford, 10 Watts 72; Barnes v. McClinton, 3 Penn. 67 ; Mulliken v. Graham, 22 Smith 491; Hoppin v. Doty, 25 Wis. 573; Peabody v. Fenton, 3 Barb. Chan. 451 ; Nute v. Nute, 41 N. H. 60 ; Warren v. Swett, 31 Id. 332 ; Danforth v. Dart, 4 Duer 106 ; Sigourney v. Munn, 7 Conn. 324; Pendleton v. Fay, 2 Paige 202; Blaisdell v. Stevens, 16 Vermont 179; Stevens v. Goodenongh, 26 Vermont 676 ; Dey v. Dunham, 2 Johns. Chan. 182; Price v. McDonald, I Maryland 403.
    But we deny that Stewart .was a purchaser at all. At most he was but a mortgagee. The testimony disclosed that he had indorsed certain notes for James A. Hegarty, which he had been obliged to pay, and that he wanted security,• that the deed to him was prepared and executed by James A. Ilegarty without his knowledge or request, and, although he swears in his answer that he was a purchaser, his testimony before the master virtually contradicted his answer and deprived it of any weight: Spencer & Nowbold’s Appeal, 30 P. F. Smith 317. James A. Ilegarty, his co-respondent, testified that the conveyance was intended as a security, and we submit that the master was in error in holding that the testimony was not sufficiently clear to sustain our allegation that Stewart was but a mortgagee; and that the court below was right in sustaining our exceptions to the master’s report.
    October 3d 1881.
   Mr. Justice Gordon

delivered the opinion of the court

As the court below has furnished us with no opinion, we are uninformed as to the reasons for its dissent from the report of the master. That report seems to have been well and carefully made ; the evidence, as we think, has been well considered, and with his legal conclusions we can find no fault.

It is, indeed, true, that, in fact, the deed from William Ilegarty and wife was but a trust, but on its face it was absolute; a deed in fee simple, regularly signed, sealed, acknowledged, delivered and recorded ; and it is not even pretended that of the secret trust between "William and James Ilegarty, Stewart had notice. The counsel for the appellee seems to think that the fact, that but $100 was receipted on this deed, was, of itself, sufficient to put Stewart upon inquiry. But we cannot see the matter in this light. In the body of the deed the consideration is set forth as valuable and sufficient; more than this was not required, and I have yet to learn that it is necessary to set out in a conveyance the full price paid for the land conveyed thereby, or that if a price less than the actual value thereof happens to be thus set out, it is a suspicious circumstance, of which a good faith purchaser for value is required to take notice. In the case in hand, looking only to the receipt, a valuable consideration does appear, and Stewart was not bound to inquire whether the sum thus represented was the full price paid for the premises or not. The parties had so written it, and so Stewart might well permit it to stand; for his purposes it was entirely sufficient, and it was not necessary that he should trouble himself further about it. The parties who executed the deed were fully competent to transact their own affairs, and even if they chose to sell this land for a wholly inadequate price, that was their own business, not that of the appellant. For what purported to be a valuable consideration, they executed-an unconditional deed to J ames A. Ilegarty, and if he violated the conditions of a secret trust which existed between them, they must call this, their trustee, and not Stewart, to an account.

Then, as to the deed from James A. ITegarty to Stewart; it is said this was but a mortgage. But nothing of this kind is apparent on its face; it purports to be an absolute conveyance. Ilegarty, indeed, swears that it was executed only as security for the money Stewart paid for him, but, as an offset, Stewart swears positively to the contrary, and as we thus have oath against oath, tbe evidence is balanced and proves nothing either way, leaving the prima facie presumption arising from the face of the deed to stand unrebutted. To show by parol that a deed, absolute on its face, is a mortgage,- tbe proof must be clear, explicit and uneqnivocál: Plumer v. Guthrie, 26 P. E. S. 441. N either of these requirements is found in the case in hand.

The counsel for the appellee regards the fact that the consideration, expressed in this deed is somewhat greater than the amount actually paid by Stewart, asa circumstance supporting his theory. But v/e cannot so see it; at best this, of itself, amounts to but little, and even that little vanishes when we learn that the deed was wade, and the consideration put in it, under the direction and superintendence of Hegarty, and without either the assent or knowledge of Stewart.

The decree of the court below is reversed and the bill dismissed at the cost of the appellee.


author: Mr. Justice Green

text:
    Waynesboro Mutual Fire Insurance Co. versus Conover.
    -p policy of insurance was issued containing clauses which provided n0 suit should be maintainable thereon, unless brought within six months after a, loss had occurred, and also that the company’should not be deemed to have waived any condition of the policy unless such waiver was in writing signed by the president and secretary. A loss occurred and suit was- instituted therefor, more than six months thereafter. Held, that the company was not estopped from setting up the breach of the condition ofothe policy by reason of the fact that the insured liad been induced to postpone bringing suit through verbal representations of the general agent made to him to the effect that it was unnecessary to sue, that the company, through embarrassed, had made', or were about to make, an assessment upon its premium notes, and that it would pray without suit.
    2. The representations made by the general agent were at any rate not the assertion of any fact past or present, but only a promise as to the future. The insured had no right to repose any confidence in such a promise, because there was, by the terms of the policy, an express exclusion of any authority on the part of the general agent to make it.
    3. Semble, that even if the general agent had possessed sufficient authority to bind the company, his declarations in the present case would not have been sufficient to constitute an estoppel. In their essential features they related only to the future action of the company. -As to what was said with regard to there being no necessity to bring suit, that was only an expression of the agent’s personal opinion and not the assertion of a fact.

      June 15th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1881, No. 81.
    Covenant, by A. V. Conover & Co. against the Waynesboro Mutual Fire Insurance Company on a policy of fire insurance for $1,000, upon a hotel, which was totally destroyed by fire on the 25th of April, 1876. This suit was brought June 20th 1878. The policy, given in evidence, contained an express provision that no suit should be sustainable thereon, unless commenced within six months after the loss, and in case any suit be brought more than six months after loss, “ the lapse of time shall be taken and deemed conclusive evidence against the validity of the claim thereby attempted to be enforced.”
    It also contained the following clause: “ And said company shall in no case be deemed to have waived a full, literal and strict compliance with and performance of each and every of the terms, provisions, conditions and stipulations in this policy contained, and hereto annexed to be performed and observed by and on the part of the insured, and every person claiming by, tlirongh or under them, unless such waiver be express and manifested in writing under the signature of the president and secretary of said company.”
    On the trial, the plaintiff claimed that the defendant company had waived or were estopped from setting up the first above recited condition as a defense, and produced evidence, under objection, tending to show that shortly after the fire, they applied to the general agent of the company, one Reynolds, with a view to collecting the insurance; that Reynolds told
    them, that although the company was somewhat embarrassed, it was a good company and would pay this loss if time was given ; that they were making assessments, and all they wanted was time; that there was no necessity for bringing suit, as the company would surely pay the loss; that the plaintiff's, relying upon-i hose statements, forbore to bring suit until after the expiration of six months.
    The plaintiff requested the court to charge the jury, that, if they believed the evidence just referred to, “ then the company is estopped from setting up that provision of the' policy which requires suit to be brought within six months, as a bar to the plaintiff’s recovery.” Affirmed. (7th assignment of error.)
    The court charged the jury, inter alia, as follows : “ [Now, then, there is a third defense — that the action was not brought within six months after the fire. The policy requires that that should be done. That is a valid stipulation.] I read and refuse Mr. Sharpe’s fourth point, which is: ‘ The sixteenth paragraph of the policy, which declares that no suit shall be brought or be sustainable on the policy in any court after the expiration of six months from the loss, is against the policy of the law ; and cannot prevail to debar the plaintiffs of their right of action against the company, after the lapse of the said period of six months.’ That point I refuse. That is a valid stipulation in the policy. [I instruct you that the plaintiffs are barred from recovering, because they did not bring their action in time, unless that requirement has been waived, or the company has estopped itself from insisting upon it. I see nothing which can properly be called a waiver; and the general agent could not, after the time expired — after the lapse of six months from the fire — could not have waived this provision without authority from the company; but he could within the six months, by inducing the plaintiff to postpone action by promising payment without suit, estop the company from setting up this forfeiture. After the six months had expired, he could not waive it without authority from the company ; but while the time was running, before the six months were up, and whilst the plaintiffs might bring suit, if the general agent by his conduct induced the plaintiffs to postpone bringing their action, by declaring’ that a suit was not necessary, and that the money would be paid without suit, that would estop the company from setting up this provision. The company, like an individual, may be estopped from setting up that which would otherwise be a bar, by the acts and conduct of their agent. (See 2 Phil. N. 287.)
    “ Now, Thompson Neynolds was the general agent of the company, with large powers ; in fact, with general powers. He was authorized to write policies. He wrote this policy. Tie was empowered to do everything necessary in his business of general agent. He represented the company in the matter of the policies issued by him. A corporation acts by its officers and agents. A general agent could do whatever any officer could do. The assured could go to him. He was the proper organ of the company for those who obtained policies through him.]
    Yerdict for the plaintiffs for $1,261.50, and judgment thereon. The defendant took this writ of error, assigning for error, the admission of the plaintiffs’ evidence above referred to, the affirmance of the plaintiff’s point, and the portions of the charge above quoted in brackets.

      Jere Ooolc ( Joseph Douglas with him), for the plaintiff in error.
    The distinction between waiver and estoppel, taken by the learned judge below, is purely fanciful. The general agent, independent of authority from the company, has no more power before than after the expiration of the six months to estop the company from setting up the forfeiture; where he has the authority, the estoppel operates because by his acts or declarations he lias waived the condition of forfeiture and thus estopped the company from using it as a defense, but there is nothing in this case, which shows authority in the agent to make such declarations. On the contrary, the policy expressly declares that no agent could bind the company by waiver of conditions.

      J. McD. Sharpe (George W. Welsh with him), for the defendant in error.
    The question is not whether the general agent could waive a broken condition, but whether, the policy being in full life at the time he made the declarations, he could thereby estop the company from taking advantage of the breach of a condition, which would not have been broken had it not been for his declaration. That he might we think is clear upon.the authority of Mentz v. Lancaster Fire Ins. Co., 29 P. F. Smith 475 ; Columbia Ins. Co. v. Masonheimer, 26 Id. 138 ; Insurance Co. v. Mowry, 6 Otto, 544; Lycoming Fire Insurance Co. v. Woodworth, 2 Norris 223; Mundorff v. Wiekersham, 13 P. F. Smith, 89 ; Sehroeder v. Keystone Ins. Co., 2 Philada. Rep. 286.
    October 3d 1881.
   Mr. Justice Green

delivered the opinion of the Court

This was an action on a policy of insurance against loss by fire. The building insured was destroyed by fire on April 26th 1876. The summons was issued on June 20th 1878, more than two years after the loss occurred. The 16th condition of the policy is in the following words viz.: “ It is furthermore hereby expressly provided, that no suit or action of any kind against the company, for the recovery of any claim upon, under, or by virtue of this policy, shall be sustainable in any court of law or equity unless such suit or action shall be commenced within the term of six months next after the fire, and in case any such suit or action shall be commenced against said company after the expiration of said six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced.”

Amongst the defenses set up against the plaintiffs’ right of action, was the limitation contained in the foregoing condition. The validity of such a defense is established by the decision of this court in the case of Warner v. Insurance Oo. of North America, 37 Legal Intelligencer 475, and is a necessary consequence of the express provisions of the contract. All this is conceded by the learned' counsel for the plaintiffs. But they contend that the defendant is estopped from availing itself of this defense because one who, as they allege, was the general agent of the company said to them before the six months had expired, and upon being informed of their intention to bring suit, that it was not necessary to sue, that the company was somewhat embarrassed' but had made, or was about to make, an assessment, and the loss would be paid without suit, and thereupon the plaintiffs, trusting to these representations, forbore to .bring suit until after the six months had expired. The learned court below admitted the evidence offered in support of this allegation, under objection and exception by the company, and left to the jury the question whether the representations had been made as alleged, charging that, if believed, they constituted an estojapel against the defendant as to this defense. The action of the court on this subject is made the basis of several assignments of error. We have reached the conclusion that these assignments are sustained, and that on them the ease must be reversed.

To the reply of estoppel the company responded with the ninth condition of the policy, which is in the following words : And said company shall in no case be deemed to have waived a full, literal and strict compliance with, and performance of, each and every of the terms, provisions, conditions and stipulations in this policy contained and hereto annexed, to be performed and observed, by, and on the part of, the insured, and every person claiming by, through or under them, unless such waiver be express and manifested in writing under the signature of the president and secretary of said company.”

It will be perceived by this language that both parties, the plaintiffs as well as the defendant, agreed, as a part of the policy, that there should be no waiver of a strict compliance with any condition, unless such waiver should be expressed in writing and signed by both the president and secretary of the company. It is not pretended there was any such waiver. It is not alleged that either the president or secretary agreed or asserted that the policy would be paid without suit, or that no suit ' need be brought on it. The utmost that is asserted is that Reynolds, the agent who effected the policy, made such statements. These statements were communicated by plaintiffs to their counsel, who thereupon advised them to let the matter drop. Mr. Reynolds gives a different version of the conversation, and testifies that he told Dr. Conover that if any suit was to be brought it would have to be done within a specified time. The court below allowed a recovery upon the effect of the verbal declarations of Reynolds operating by way of estoppel. But the -contract of the parties expressly excluded Mr. Reynolds as a person who could make any binding declarations on the subject, whether written or verbal. Only the president and secretary combined could dispense with the necessity of bringing suit within six months, and that by an agreement or declaration in writing. To this the plaintiffs agreed, in, and as a part of the very instrument upon which this suit is brought. In such circumstances the declarations or statements of Reynolds waiving the performance of conditions are absolutely nugatory. The parties have so agreed and the courts have no right to alter the agreement of the parties in .this respect or in any other. Solemn contracts of parties reduced to writing and duly executed, would have little value if their provisions could be arbitrarily set aside and disregarded by the tribunals. This view of the case disposes of it. As Mr. Reynolds had, by the express agreement of the plaintiffs, no power whatever to waive performance of the conditions of the policy on behalf of the company, his declarations could not operate as an estoppel against setting up a breach of condition as a defence. Apart from this consideration, which is fatal, it is apparent that the representations of Reynolds were not the assertion of any fact, past or present, but constituted only a promise as to the future. The plaintiffs had no1 right under the policy to repose any confidence in such a promise, because there was an express exclusion of any authority on the part of Reynolds to make it. We are not prepared to admit that even if he had possessed sufficient authority to bind the company as to this matter, the declarations testified to by the plaintiffs were of such a character as to constitute an estoppel. In their essential feature they related only to the future action of the company, to wit, payment without suit. As to what he said in regard to there being no necessity to bring suit, it was only the expression of his personal opinion, and not the assertion of a fact. The fifth, sixth, seventh and eighth assignments of error arc sustained. The consideration of the remaining assignments is unnecessary.

Judgment reversed.