author: Kennedy, J.

text:
    McClelland against McCalmont.
    Unseated town-lots are subject to an assessment and sale for taxes.
    Error to the Common Pleas of Venango county.
    This was an action of ejectment in which Hugh McClelland was plaintiff, and Alexander McCalmont was defendant. The only.question which was presented was, whether unseated town-lots were the subjects of a sale for taxes, in pursuance of the provisions of the act of 3d April, 1804. The court below (Shippen, president,) decided that they were.

      Galbraith and Selden for plaintiff in error.

      Pearson and Wallace for defendant in error.
   The opinion of the court was delivered by

Kennedy, J.

This was an action of ejectment, in which the plaintiff in error claimed to recover the possession of a lot of groun A situate in the town of Franklin, in Venango county, which had been vacant or unseated, and during that time liad been assessed with taxes, and they not having been paid, was sold as unseated lands. The defendant at the sale became the purchaser of the lot in question, paid the purchase money and obtained a deed of conveyance for it from the treasurer of the county.

A case was agreed on and stated by the parties, for the opinion of the court below, subject to a writ of error, to be sued out by either. From the case stated, it appeared that the plaintiff was the owner of the lot before and at the time of the sale; that prior to that time it had never been enclosed or improved or settled on in any way; that it had been duly assessed with taxes, which remained unpaid, and that it was sold as unseated lands for taxes due and in arrear, and that the defendant became the purchaser, as is stated above.

The only question made and argued was, whether an unimproved and unseated town-lot of ground, could be lawfully assessed with taxes and sold as unseated lands, for the non-payment of taxes assessed upon it? v

The court below decided that it could, and gave judgment for the defendant.

Unless such property be taxable, it follows as a matter of course, that no sale could be lawfully made of it for taxes: It therefore becomes necessary to inquire first, whether it be the subject of taxation by law or not.

By the eighth section of the act of Assembly of the 11th of Api-il, 1799, entitled “An act to raise and collect county rates and levies,” <£all lands held by patent, warrant, location or improvement; houses and lots of ground, and ground rents; all grist-mills, saw-mills, fulling-mills, slitting-mills, rolling-mills, hemp-mills, oil-mills, snuff-mills, paper-mills and powder-mills; all furnaces, forges, bloomeries, distilleries, sugar-houses, malt-houses, breweries, tan-yards and ferries, &c.” are made taxable, and for that purpose the assessors are required to make out an account of the same; after which, they are to call tp their aid the assistant assessors, and with them to value all these things according to the best of their knowledge, for what they may think they would luma fide sell for in ready money. The terms employed in this section of the act are sufficiently comprehensive and explicit to embrace unseated or unimproved town lots, or any other lots of ground. The terms “all lands,” are amply sufficient to designate and include whatever will in law or otherwise come properly under the denomination of “land,” which in law is a term of very comprehensive signification. And although, the legislature have gone on further to enumerate specifically “houses and lots of ground, ground rents; all grist-mills, &c.” yet I do not think it wTas done with a view to exclude any thing that come in properly under the denomination of lands, the term before used; but rather consider it done for the purpose of amplifying and enlarging the list of taxable articles, than of limiting and restricting it. The various articles of property made taxable by .this act, are to be valued .according, to what they, in the estimation .of the assessors, w.ould sell for, bona fide, in ready money, and riot according to their annual value; which shows that the legislature intended that property which might be of no annual value — .such, for instance, as unimproved and unseated lands, whether consisting of whole surveys, parts of surveys, or tracts, or of lots, or town iots, should b.evalued and assessed, as well as that which was productive of annual profit. For if this had not b.een their intention, would not the annual valué or profit of real estate have been a more equitable and reasonable standard, by which to have ascertained t.he amount of the taxes to be paid by the own» ers? It would seem to have been th,e .de.sign of the legislature to assess and tax all property, from which money could be raised by a sale of it. Unseated town lots may be sold, and money some» times raised in this way upon them more readily than by a sale of improved lots, where some regard is to be had for the cost of them. Beside, a;S an article of property, they ,ar.e often not only more saleable, but more valuable, than the most of the unseated tracts of land in the same count}'; which are admitted to be the legitimate subjects of taxation, and are expressly made so by the act of assembly of the 3d of April, 1804. The act of the g8th of March, 1814, which has been referred to, and relied on by the counsel for the plaintiff in error, to show that vacant, or unseated lots, or pieces of ground, cannot be sold for taxes, is framed and predica» ted upon the very basis of the lots therein referred to, having been regularly, that is, lawfully assessed; but the owners could not be found to pay them; or when found, denied their ownership. AJI this appears in the preamble of the act.

It cannot be supposed that the legislature had any tender feeling of regard for, or disposition to indulge the owners of vacant or unseated town lots beyond what they have expressed for the owners of unseated lands generally, in directing them to be assessed with taxes, and if these are not paid by the owners, within due time, then by directing a sale to be made of the lands themselves, The policy of -the state has ever been to encourage the improvement and settlement of all the lands within its territory — lots, I would say, as well as tracts. For it is precisely the same thing to the state, whether a tract of land remains .entire and unsettled, or be divided into lots, containing each the one-eighth of an acre, and all remain-unimproved and unseated. Nothing is added to her wealth or her strength in the latter case more than the former. Why should she forbear taxing town lots? Such an .exception, would rather encourage the non-settlement of them, and he con* trary to her uniform policy. It would also be repugnant to the principles of equality and justice. The state is bound to protect every -one of its citizens in the enjoyment of those rights which ho has to property within its territory, as well as of those that belong to his person. In return for this protection, he is bound again to (contribute to the support of the state, which is to be done in part by paying the taxes that are assessed. Again, is it not just and .equal, that in proportion as the property is more or less valuable, in the right to the enjoyment of which he claims to be secured by the state, he should in the same proportion pay to the support of the expenses of the state? If so, he ought to pay taxes assessed upon unimproved town lots, as well as upon any other species of property; otherwise, one man may hold property worth fifty thousand dollars in the state, consisting of unimproved and unseated town lots and pay no taxes, while another, holding unimproved ,and unseated lands, consisting of what are commonly called tracts .of land, worth not more than .twenty thousand dollars, has to pay annually one hundred, or from that sum to two hundred dollars, which would be most unjust and unequal. No reason why town lots .should not be assessed has been attempted to be given; and in* deed it is difficult to conceive any; while on the contrary, justice, as well as sound policy, requires that they should.

If, then, they may be lawfully assessed, as I think they may, that is, I consider that the legislature has directed them to be assessed as often as any other real estate in the same county, it cer* tainly will be thought strange if the legislature has provided no ef* fectual mode for the collection of such taxes: yet if unimproved, vacant and unseated town lots, cannot be sold for taxes due and in Arrear upon them, most certain it is that the legislature have omit* ted or failed to provide but a remedy. It was found impossible to collect the taxes due upon unseated tracts of land by any other mode than a sale of them. Hence, that was provided. If the owners of unseated tracts of land neglected paying the taxes upon them, and it therefore become necessary to authorize a sale of them, what reason can be imagined why the same neglect would not happen in the case of unseated or unimproved town lots? Every one of any experience in this matter knows, that the difficulty of getting the taxes paid in these cases are the same, and that without an authority to sell in both cases, it is utterly impracticable to collect or obtain the taxes due upon such property. ' It cannot be presumed for a moment, that this was not as well known to the legislature, as to any other part of the community. Neither can it be believed that they intended taxes to be assessed upon these town lots, without any design that they should be collected. If there be no other mode by which they can be collected with any certainty but that of a sale, it will be a strong reason for-believing that the legislature intended it, if there be any thing to be found in their acts in this behalf, that will bear such a construction.

It has been contended by the counsel for the plaintiff in error that in no part of any of the acts of assembly authorizing the sale of unseated lands for taxes, are the words “lot,” or “piece of ground,” or “town lot,” used or expressly mentioned. That as often as the legislature have undertaken to describe what kind of unseated lands they intended should be sold for taxes, they have uniformly spoken of them as tracts, which does not give us the idea of, or include a town lot. To all this it may be answered, that they have almost invariably, throughout all the acts in directing the sale of unseated lands for taxes, used the term, “unseated lands.” The second section of the act of the 3d of April, 1S04, expressly directs, that “all unseated lands within this commonwealth, held by individuals, companies, or bodies corporate, either by improvement, warrant, patent, or oihenoise, shall, for the purpose of raising county rates and levies, be valued and assessed in the same manner as other property:” and in a subsequent part of the same section, provides for, and authorizes the sale of them, calling them again “unseated lands,” and not referring to them by the term, “tract or tracts.” Indeed, I cannot discover where, in any of the acts on this subject, the term, “tract or tracts,” has been used seemingly for the purpose of distinguishing them or that species of unseated lands from unimproved and unseated town lots, or any other unseated lots of ground; and certainly in no part of any of the acts is it used for the purpose of showing that town lots unseated were not to be sold for taxes as unseated lands. I think it very clear that the legislature has not made any distinction between a town lot of ground and a tract of land; whether seated or unseated, all are to be taxed, and if the taxes are not paid oxx those unseated, they are to be sold. A distinction between an unseated tract of land and town lot, docs not appear to me to be attempted or aimed at in any place.

The great argument of the counsel for the plaintiff in error is, that the term “town lot” is not used in designating the real estate that shall be sold for the non-payment of taxes; but the term “all unseated lands” necessarily embraces lots, town lots and tracts, without distinction; and directs that all- should be sold for taxes unpaid; so that the counsel for the plaintiff in error ought to have gone further, and have shown that town lots were expressly exempted after the use of terms which most explicitly- embraced them. The act of the 2Sth of March, 1814, is §aid to be a legislative declaration of what the law is on this subject, and that they must have thought that there was no act authorizing the sale of unimproved and unseated town lots, or they would not have passed that act, which had no other object in view than to authorize the sale of such lots in the county and city of Philadelphia. This act seems to have been passed upon a special application, as clearly appears from its preamble; and most likely was passed to satisfy the doubts or notions of the applicants. It is not probable that it was passed after any particular investigation of the subject by the legislature. For I cannot but think that if they had examined the matter carefully, they would have been satisfied that the then existing laws authorized a sale of such property for taxes due upon it; or if not, they would-have immediately passed a general act on the subject, authorizing it throughout the state. Acts of the legislature have been passed sometimes merely declarative of what the law was before. This is done sometimes upon the suggestion of those who may doubt about what the law is on the subject, or may be mistaken altogether in respect to'it. I know that vacant and unseated town lots, in some counties of the state, have long since been assessed for taxes and sold as unseated lands; and I can perceive no reason why it should not be so, since they are obviously embraced in the general terms of the act of 1804, on this subject, which directs that all unseated lands shall be taxed, and if these taxes are not paid in due time, that they shall be sold.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FITSIMMONS against LECKEY.
    Every intendment is tobe made in favor of the regularity of proceedings which are according to the course of the commun law; and a judgment will not be reversed for any thing but palpable error. ,, -. "■
    A judgment upon an award of arbitration, in a case which originated before a justice, for a sum less than the judgment of the justice, will not be reversed, unless it appears affirmatively upon the record, that no other evidence was given to the arbitrators than to the justice.
    Error to the Common Pleas of Allegheny county.

      William Leckey brought this action before a justice of the peace, against William Fitsimmons, and obtained a judgment there for eighty dollars, from which the defendant appealed. The cause was afterwards referred to arbitrators who made a report in favor of the plaintiff for fifty five dollars with costs of suit: upon which’ judgment was entered, to reverse which, this writ of error was sued out: and the error alleged was, that the arbitrators awarded costs; to the plaintiff, although he did not recover as much in court as he did before the justice.

      Burke, for plaintiff In error.

      TV. TV. Fetterman, Contra.

   Per Curiam.

Every intendment is to be made in favor of the fégularity of proceedings which are according to the course of the common law; and a judgment is consequently .not to be reversed for any thing but palpable error. The judgment here may be right or it may be Wrong, according to the fact of adduction, or otherwise of new evidence by the defendant. Had he thought proper to object to the Costs in the court below, the fact would have been investigated; instead of which he has come immediately before us, without considering that we are not here to presume the existence of error to overturn a judgment that may, for any thing that appears, be pfoper.

Judgment affirmed*


text:
    TAYLOR against THE COMMISSIONERS.
    Hie owner of an unseated tract Of land, paid to the Commissioners the taxfeé- Alié upon a tract df land whidh did not belong to him, by mistake, ahd did not pay those due'upon.his own land, in conseqüenee of which it was sold therefor by the treasurer. Écíd, that in an action for money had and received against the commissioners, he Was not entitled to recover the money which he had thus paid' them by mistake:
    Whenever money is paid to a p&rty who receives it with a good conscience, and uses no deceit or Unfair practice in obtaining it, an action for money had and received will not lie against him to recover it back, even though it be paid to him by mistake.
    Error to the Common Pleas of Beaver county.
    This was ,an action of assumpsit, in which John Taylor and Su* sanna his wife Were plaintiffs, and the Commissioners of Beaver bounty Were defendants. It was brought to recover1 back money Which the plaintiffs had paid in discharge of taxes assessed upon R tract of land No. 86, to Which they had no claim, interest or conbern in any wity. They had a daim to a tract No. 84, which was álso assessed with taxes, and these they wished to have paid, but through a'mistalte of their own, paid the taxes upon No. 86. Under this mistake, they, on the 4th of December, 1809, paid the taxes assessed upon No. 86 for the years 1805-6-7-8, and afterwards at different times as the taxes were assesed upon it continued to pay him down to the year 1812 inclusive, amounting in the whole to the sum of thirty-two dollars and twenty-two cents. The tract' No. 84, in a few days after the plaintiffs paid the taxes upon No. 86, was sold for the taxes of 1805-5-7 and 8, by the order of the Commissioners, and the' subsequent-taxes upon it were paid by those claiming it under the commissioners’ sale. These facts all appeared in a case stated in the nature of a special verdict. The court below gave judgment in favor of the commissioners, and the error assigned, is in rendering this judgment for the defendants, instead of the plaintiff.

      TV. TV. Fetterrtian for plaintiff in error,
    Contended, that this was the proper form of action in all cases where money was in the hands of one person, which in equity and justice belonged to another. Great injustice would b,e done to the plaintiff by a denial of his right to recover, but no injury would result to the defendants by enforcing the right, inasmuch as they could still resort to the tract No. 86 to enforce the. payment of the tax due upon it. Cited, Finney v. Commissioners, 1 Serg. <5* Rawle, 62.

      H. M. Watts for defendant in error,
    Argued, that it was not the duty of the commissioners to inquire, in what capacity an applicant appears to pay taxes; it is enough for them to know that the-tax is due; and under these circumstances, if they receive it without deceit, fraud or mistake on their part, but with a good Conscience, it cannot be recovered back. Both parties being innocent, the maxim “melior est conditio possidentis” is justly applicable. Cited, Morris v. Tarin, 1 Dali. 147. Levy v. The Bank of the United States, 1 Binn. 36. Irvine v. Hanlin, 10 Serg. fy Raiole, 220. Bogart v. Nevins, 6 Serg. <5* Rawle, 369. The doctrine contended for in this case Í3 expressly decided in Carson v. M’Far land, 2 Rawle, 118.
   The opinion of the court was delivered by

Kennedy, J.

—It is worthy of observation in this case, that those eoncerned in receiving the taxes of the plaintiffs, on behalf of the county, do not appear to have induced or contributed to the mistake under which the money was paid, in the least degree. If this vere the case, it might be good ground for a different judgment from that which has been given. Or if the mistake had taken -place with the Commissioners or the county Treasurer, in the application of the money, by appropriating it to the payment of the taxes assessed upon No. 86, when it was paid in on No. 84, the plaintiffs vould be entitled to recover it back again, upon giving up their daim to No. 86 in favor of the party claiming it under the commissioners’ sale.

Chief Justice De Gray, 2 Bl. Rep 825, lays it down as a general principle, that when money is paid by one man to another on a mistake either, of fact, or of law, or by deceit, this action will certainly lie. This dictum is said to belaid down too broadly, and no doubt is so. 5 Taunt. 147, 153,-162. If aman is bound only in honor to pay a sum of money, and believing that he is also bound in law, pays it under the impulse of his mistaken notion of legal obligation, he cannot recover it back: it has also been held, that a person who with a full knowledge of the fact, but under a mistake of the law, pays over money to another, claiming it as a right, although he was not compellable to pay it, yeton discovering what his right was, he cannot recover it back again, there being nothing against conscience in the party’s retaining it. So I apprehend that a sheriff who has two executions against the same defendant, put into his hands on different days, and through a mistake of his own, sells all the goods of the defendant on the last instead of the first, and pays the money over on the second writ, he cannot recover it back again although he has made himself liable for it, and must pay it on the first execution. The money it appears to me can be received back'only in those cases, when by the ties of natural justice and equity the defendant ought' to refund} which ex bono et equo, he ought not to keep: but whenever the party may receive it with a good conscience and uses no deceit or unfair practice in obtaining it, this action will not lie. Morris v. Train. 1 Dall. 148. Bogart v. Nevins, 6 Serg & Rawle, 369. Irvine v. Hanlin, 10 Serg. & Rawle, 219. 2 Bur. 1011, 1012. 2 Dang. 471 & notes. 2 Johns. ch. Rep. 60. Doctor & Stud. 78, 250, 255.

It is not pretended that the money was unfairly received by the county. It was justly due to the county and ought to have been paid by some person. Lands are often assessed in the name of those who happen not to be the owners for the time then being. If they have been the owners at any previous period, the assessments are good. The county commissioners are not required in their assessments to keep pace with and know every transfer of land which is made. Indeed it is not usual to inquire of aperson who comes forward to pay the taxes on aparticular tract of land mentioned by him in what character he wishes to pay, whether as owner or agent, and under what title. It is a matter of no concern to the county under V^hat character, title or claim he wishes to pay the taxes, for, as they are due, the proper officer may, with great propriety, receive them of any one, and the first who appears to pay. If the commissioners ■ were to refund the money paid in this case, it might be difficult after the taxes have been credited to No. 86 for the space of upwards of twenty years to enforce the payment of them again. I think that the judgment of the court below was right and ought to be affirmed.

Judgment affirmed.-


text:
    HIGGS against STIMMEL.
    Four children, to whom a tract of land was devised, made an amicable partition and valuation thereof, each who received land of more value agreed to pay to the others,-so as to make the shares equal. X'ossessiou was taken of'the several part3 in pursuance of the partition. More than twenty-one years thereafter, one of the devisees, to whom land of less value was allotted, brought a joint-action of eject.ment against the owners of the other shares, in order to compel the payment of the amount clue to him,- in which it was held that he was not entitled to recover.
    Error to the Common Pleas of Westmoreland county.
    This was an action of ejectment, in which William Higgs and others, heirs at law of Mary Insenhonr, who was Mary Mellinger, were plaintiffs, and Isaac Stimmel and others were defendants.
    On the 20th of February, 178S, John Mellinger obtained a warrant for four hundred acres of land, upon which Benjamin Lodge, ¡the deputy surveyor, surveyed five hundred and forty-four acres. It did not appear that this survey had ever been returned. . John Mellinger died in 1.802, having,first made a will by which he demised all his real estate to his four children, of whom the plaintiffs •represented one, and the defendants, as to the title to this land, the other three. In 1803, the children agreed to make an amica,ble. partition and valuation, and to give William Turnbull one hundred acres of it, for procuring a patent for the residue. After this one hundred acres was taken off, the land was divided into .four parts, as nearly equal in quantity as convenient, but unequal .in value; that part allotted to Mary Isenhour, the plaintiff’s ancestress, being of less value than any of the other allotments. The .parties agreed that each should pay to the other as much as would make their shares equal. Each one took possession of the part allotted to him; but it did not appear that deeds had ever been executed. This action of ejectment was brought in 1827 against the owners jointly of the three parts of the said land, in order to compel the payment of the amount which was due to Mary Isenhour, in order to make her .share equal to that of the other devisees of John Mellinger..

    The court below was of opinion that the plaintiffs were not entitled .to recover, .and so instructed the jury; who found a verdict accordingly.

      Foster for plaintiff In error.

      Armstrong, contra, whom the court did not hear.
   The opinion of the court was delivered by

Kennedy, J.

The errors assigned present but two Question applicable to the case, as it was made out by the plaintiff’s own testimony in the court below.

They are, first-^-Was the parol partition, which was made of the land, and the lapse of time since that, up to the bringing of this action, a divestiture of all right on the part of the plaintiffs and their ancestress, to the land divided and apportioned among, and taken exclusive possession of, by the other divisees and tenants in common; and such evidence of payment of the money, which was to have been paid by them respectively to Mary Mellinger, as to bar the plaintiffs of their action for this cause?

Second — Was there such an interest in Mary Mellinger at any time to the one hundred and seven acres and one hundred and seven perches, as to enable her or her heirs to maintain this action; and if there was, has it been abandoned or relinquished by her and the other devisees, in making the partition as they did, together with the length of time that has passed away since, without any claim being made to it, until the commencement of this suit?

It would seem from what has been shown, and from the charge of the court below to the jury, that certain points were discussed by the counsel for the plaintiff, which the court there undertook to answer in their charge to the jury, and are assigned here for error, that were not necessarily involved in the case; and, therefore, .although the court may not have stated the law correctly upon them, it would be no good ground for reversing their judgment; if the plaintiffs were clearly not entitled to recover from their own showing-

In this case a parol partition of the land devised by the testator, was made between .the parties in 1803; the lines of-partition were run and distinctly marked upon the land; each one of the four devisees took the possession exclusively of his or-her respective purpart and allotment, according to the division which had been made, ^nd continued to possess the same in severalty from that time down to the bringing of the action. That such partition of the land is good, and a complete destruction of the tenancy in common that was created by the will of the testator, there can be no doubt. The case of Syler and Eckert, 1 Bin. 378, is decisive on this point. It is, however, contended by the counsel for the plaintiffs, that as there was a valuation of the several allotments connected with the partition, and forming a part of the same transaction, under the same agreement; and that under this agreement, in order to make the purpart assigned to and taken by Mary Mellinger, the mother of the plaintiffs, equal to the other allotments; there was a sum of money to have been paid to her by each of the other devisees, whose several shares were of more value than hers; that for this money, she, by the very terms of their agreement, as testified by one of the witnesses, acquired a lien upon the shares of the other devisees, and if this money were not paid to her, she or her heirs might maintain their action of ejectment to enforce the payment of it.

Admit that such was the nature of the agreement, and that it gave the mother of the plaintiffs a right to enforce the payment by action of ejectment, would it not perhaps have been more correct to have brought a separate action of ejectment against the terre-tenants or occupiers of each share? for it cannot be pretended that any one of them was bound, nor that his or her share of the land was bound for the payment of more than his or her own portion of the money. But waiving all form and exception to the manner of bringing the action, can Mary Mellinger or her heirs maintain this action for this purpose after the money has been paid to her? Surely not. The lapse of time in this case, from the making of the partition, the time when the money ought to have been paid, being upwards of twenty years; nay, upwards of twenty-four, to the time of commencing this action, was sufficient evidence of the payment of the money; indeed, it raised a presumption in law, per se, that was conclusive, there being no testimony given in the case to rebut it. The jury were bound to presume that the money was paid; and the court were bound to tell them that on this ground alone, if no other, the plaintiffs could not recover ggainst the defendants, or any of them, for and on account of the money which was claimed. See Boyd v. Grant, 13 Serg. & Rawle, 124.

But it is urged that this presumption was rebutted by the evi denee of 'Thomas Simpson, who testified that Isaac Stimmel, one of the defendants, about five years before the trial, told him that “there was something laying against the land — that some day or other he would be brought into the mud, about it. ” This déclaration, even if true, is too vague and unmeaning to.rebut the presumption of payment arising from the lapse of time in this case. It is certainly nothing like an admission that any money was due to Mary Mellinger or her representatives, for and on account of his own share, or that of any of the others. Mary Mellinger or her representatives do not appear to have been even named upon the occasion; nor was there any reference to them in the conversation at the time. Beside, Isaac Slimmel’s declaration could be no evidence to rebut such a presumption, excepting as to himself and his share of the land. The court below were right in charging the jury against the plaintiffs as to this claim; and although the most apt reasons may not have been advanced for their opinion, yet a right judgment is not to be reversed because the court below may have given a wrong reason for it.

I now come to examine the right of the plaintiffs to recover the one-fourth of the one hundred and seven acres and one hundred and seven perches, and allowance of six per cent., &c. which was thrown out at the time of the partition, and has since been taken possession 'Of by John Mellinger, one of the defendants. Although Benjamin Lodge, the deputy surveyor, had made a survey upon the war■rant of the testator, whieh called but for four hundred .acres, and included within that survey these one hundred and seven acres and one hundred and seven perches, yet it was never returned into the •survejmr generaPs office, and could not have been .accepted of if it ■had, if known at the time, that it contained, .as was the fact, upwards .of five hundred and forty-four acres; for the limitation in this respect is, that the survey shall not contain an excess beyond .the quantity mentioned in the warrant, exceeding the rate of ten per .cent. The devisees in dividing the real estate devised to them by the testator, left these one hundred and seven acres and one hundred .and seven perches., .out of view altogether. The quantity taken and divided was four hundred and thirty-six acres and one hundred and seven perches, as much as could have been legally returned and ac» oepted of under the warrant. For the one hundred and seven acres, then, it does not appear that the testator himself had any right, unless he had givon up an equal quantity from some other part of his survey. Indeed, it would seem as if he was aware of his having embraced move land in his survey than his warrant would cover, and that he had agreed to give this one hundred and seven acres to a certain Mr. 'Purnbull for patenting the remaining four hundred and thirty-six acres to him. Upon this principle the devisees acted in making partition of the estate devised to them; and Aid not consider the one hundred and seven acres as any part or portion of it. It does not appear that there ever was any warrant for this piece of land containing the one hundred and seven acres; nor that any settlement was ever made upon it until John Mellinger, one of the defendants, made it about twelve years before the trial of this cause below. It appears to me that the testator had no ■title or right to this land at the time of his death, and if so, none ■could pass by his will or otherwise from him to the devisees. I3ut -supposing that the devisees, after the testator’s death, might have secured this piece of land under the warrant, it could only have been done by leaving out of the survey an equal quantity elsewhere; this, however, they did not do, but chose to leave this one hundred and seven acres out, and to divide the rest; which was an appropriation of the land so divided to the warrant, and a relinquish» mentof the one hundred and seven acres. I think that the plaintiffs have no right to any part of this land. The court below were right, also, in charging against the plaintiffs on this branch of their claim.

All that was said by the Court below to the jury, in respect to the statute of limitations being a bar to the plaintiff’s recovery was unnecessary, for it apart, they showed no such title as could enable them to recover any part of the land claimed by them-

Judgmont aífirme d.


text:
    KLINGINSMITH against NOLE.
    It is not essential to the right of appeal from the judgment of a justice of the peace, that the claim of the party should be set out on the docket) it sufficiently appears if it be made out in writing and presented to the justice Upon the trial before him.
    Error to the Common Pleas of Westmoreland coiinty.
    This suit was commenced by the plaintiff in error before a justice of the peace, who entered the same on his docket in the following words, “summons debt not exceeding one hundred dollars} on account of defendant’s building a grist-mill for the plaintiff.’* There was no other or further entry made by the justice on his docket of the claim of the plaintiff, and no entry whatever of what the defendant claimed to set-off against the plaintiff. It merely appeared further that the justice upon the trial gave a judgment against the defendant in favor of the plaintiff for ninety-eight cents with costs of suit. From this judgment the defendant appealed to the next court of Common Pleas, which was to be held in November, 1830. The plaintiff at this term of the court obtained a rule on the defendant, to shew cause why the appeal should not be quashed: and the defendant obtained a rule upon the justice to return the accounts and evidence in the case. Un-, der this last rule the justice returned an account made out by the defendant, which he produced before the justice on the trial of the cause against the plaintiff, for work, labour and services, amounting to upwards of ninety dollars, which he alleged was owing to him, and claimed to have a judgment against the plaintiff for the same. The justice also returned an account which the plaintiff had made out and exhibited on the trial before him against the defendant. The court below, after hearing the parties, discharged the rule to shew cause why the appeal should not be quashed.
    The cause was afterwards tried by arbitrators appointed under the compulsory arbitration law, and an award was given by the arbitrators in favor of the defendant for twenty dollars, fourteen cents and the costs of suit.
    The plaintiff in error alleged, that the court below erred in discharging the rule which had been obtained by him for quashing the appeal.
    The question which arises here is, whether the defendant was ' entitled to an appeal according to the true construction of the act of the 20th of March, 1810.

      J. Findlay for plaintiff in error,
    Referred to the 3d Sect, of the act of 20th March, 1810, Purd. Big. 451. Stewart y. Keemle, 4 Serg. 8/ Eawle, 72, Stay y. Yost, 12 Serg. fy Eaiole, 485. .

      Nichols for defendant in error,
    cited Cochrane v. Parker, 6 Serg. fy Rawle, 549.
   The opinion of the court was delivered by

Kennedy, J.

The third section of the act of 20th March, 1810, provides, that “if the parties appear before the justice, either' in person or by agents, the justice shall proceed to hear their proofs and allegations, and if the demand shall not exceed fivedollars and thirty-three cents, shall give judgment, as to right and justice may belong, which judgment shall be final, but if the demand or sum in controversy shall be more than that sum and shall not exceed one hundred dollars, and either party shall refuse to submit the determination of the caseto the justice,.he shall in that case request them to choose referees,” &c. And the fourth section proceeds further to declare that “if either party or their agents shall refuse to refer, the justice may proceed to hear and examine their proofs and allegations, and thereupon give judgment publicly, as to him of right may appear to belong, either party having the right to appeal within twenty days after judgment being given either by the justice alone, or on award of referees, when such sum shall exceed the sum of twenty dollars.” The fourth section also enacts that a defendant who shall neglect or refuse in any case to set off his demand, whether founded upon bond, note, penal or single bill, writing obligatory, book account, or damages in assumption against a plaintiff, which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be, and is thereby, forever barred from recovering against the party plaintiff, by any after suit. ” It is clear from the words of the third section that it is the amount of the demand and not the amount of thejudgment given by the justice which regulates the right of appeal to the court of Common Pleas. Nor is it confined to the amount of the plaintiff’s demand; for I consider that upon a fair construction of the act the word “demand” or at least the expression “sum in controversy” will refer to, and embrace the demand which the defendant may offer to set-off, or claim a judgment for, against the plaintiff. This construction seems necessary not only to do equal justice between the plaintiff and defendant, and to place the defendant upon an equal footing with the plaintiff, but to preserve to him the right of trial by jury inviolate as before the adoption of our present state constitution. By the seventh section of the act it is expressly declared that if the defendant shall in “any case” no matter what the amount of the plaintiff’s claim may be, whether above or below five dollars and thirty-three cents, neglect to set-off his. demand, if it do not exceed one hundred dollars, he shall ever afterwards be debari'ed from x-ecovering the same of the plaintiff. This provision of the act compels the defendant to set-off orbring forward on such claim against the plaintiff if he íxas it or otherwise. forfeit all right to demand or sue for it afterwards; which could never have been intended by the legislature, without giving to the defendant ultimately by appeal, the benefit of a jury trial, in deciding upon his claim, where it shall exceed five dollars and thirty-three cents, and the justice shall have decided against him.

Ithas, however, been contended in this case by the counsel for the plaintiff in error, that the defendant ought, at all events, in order to have entitled himself to an appeal from the decision of the justice, to have had the amount of his claim entered upon the justice’s docket. The act of assembly certainly does not require this. Besides, it seems to me that the defendant can have nothing entered Upon the justice’s docket but what the justice shall please to püt there, and that it would be too severe to deprive a party of his right on account of the omission of the justice. Because in this case it appears from the return of the justice to the rule taken upon him in the court below, to return the accounts and evidence an the ease, that the defendant had made a statement in writing of the amount of his claim against tlpe plaintiff, detailing the items of it, and shewing what each was for; and had presented it to the justice before trial, and left it with him. This was certainly as much as he could do. If it ought to have been noted or entered in any way on the justice’s docket, it was the duty of the justice to have done so, and his omission ought not to prejudice the defendant in his right to an appeal. Indeed it is expressly provided for, towards the close of the fourth section of the act, that “no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form oí name of the action, shall prejudice either party in the court to which the appeal shall be made. ’’ Neither do I see any góod reason why a statement made out in writing by a party containing not only the amount of his claim, but also the nature of it, and given as such to the justice before' trial, as was done in this case, and at the time of trial, and left with him, should not be equivalent to an entry of the amount of his claim by the justice on his docket. The statement thus reduced to writing by the party and left with the justice, can be certified and returned with the appeal to the court by him, and will be at least as likely to be free from mistake, as if he had entered it on his docket merely from the mouth of the party. Certainty of what -ivas the amount of the party’s demand before the justice on trial, is the object sought after; and the mode adopted by the Common Pleas in this case to attain this end, as well as the evidence furnished by the justice, of the amount of the defendant’s demand, which greatly exceeded five dollars and thirty-three cents, is quite satisfactory; and in the opinion of a majority of this court, entitled him to his appeal,

Ross, J. dissented/

Judgment affirmed,


text:
    COMMISSIONERS against McCALMONT.
    In an action of debt upon abond conditioned for the payment of money, upon which there was an endorsement, referring to an agreement between the parties to it, it is competent for the defendant to give parol evidence of what that agreement was, in order to shew, that it was the understanding that the bond on which the suit was brought was not to be paid.
    That the defendants derived a pecuniary benefit from the arrangement, is no reason why they should be estopped from giving in evidence what the arrangement was.
    The commissioners of a county, having made an arrangement with certain individuals to purchase in a number of tracts of unseated lands for them, which were being sold by the treasurer for taxes, and for the purchase-money of which the purchasers gave a bond to the commissioners, upon which there was an endorsement referring to an agreement between the parties, it was held, that it wa» not such an illegal transaction, as that the obligors in the bond should not be permitted to give parol evidence of what the agreement was, in order to show that they were but trustees for the-county.
    Writ of error to Venango County.
    This was an action of debt brought by Jibraham Selders and others, Commissioners of Venango county, for the use of Warren county, against Alexander McCalmont, Thomas Ruling, and William Moore. The action was founded on a bond given by the defendants in error to Jlb'aham Selders and others, commissioners of Venango county, on the 17th day of February, 1819, in the sum of five thousand dollars, conditioned for the payment of two thousand six hundred and forty-two dollars and eighty-seven cents to the said commissioners, or their successors in office; one-half thereof in six months, and the remaining half in twelve, from that date. A warrant of attorney to confess judgment was added to the bond, and in pursuance of it a judgment was entered up in the Common Pleas of Venango county, of February term, 1820, which was opened by agreement of the parties at April term, 1830; the plea of payment with leave, &c. put in by the defendants, upon which issue was taken by the plaintiffs.
    The cause was tried at June term, 1830; the bond was first given in evidence, and upon it were the following endorsements signed by the plaintiffs, the commissioners of Venango county, and sealed with their official seal at the time of giving the bond.
    “We, the undersigned, commissioners of Venango county, do* hereby acknowledge that the within bond is given by Jl. McCalmont, Thomas Ruling, and William Moore, for the payment of the taxes and costs due on two hundred and seventy-five tract» of land, situate in the counties of Venango and Warren, sold to Jl. McCalmont and Thomas Ruling, by order of the said commissioners, by John McCalmont, Jr. Esquire, treasurer of said counties, on the twenty-third day of December, 1818, in pursuance of an agreement betiveen the parties to these presents. And we, the said commissioners, do agree, for ourselves and our successors in office, to and with the said Jl. MeCalmont, Thomas Huling and William Moore, that the within bond shall be a lien only on the said two hundred and seventy-five tracts of land purchased by the said Jl. MeCalmont, Thomas Hiding and William Moore. And we do further agree, that any of the said tracts that may or shall be redeemed, agreeably to law, shall be released from said líen, and that the said lien shall only extend to those of the said lands, that shall not be redeemed as aforesaid. ”

      xt To the Treasurer of Venango County:

    Sir: — You are hereby required and directed to receive the foregoing bond, and to credit John MeCalmont, Jr., late treasurer, with part thereof; to wit: two thousand three hundred and sixt.y-seren dollars and eighty-seven cents, on account of any balance that may be due from him as late treasurer, and to receipt to him for that sum. You are also directed to pay to JLlexander MeCalmont, Esquire, prothonotary of Venango county, two hundred and seventy-five dollars out of the amount of said bond,' when received ' by you, being his fees for entering the acknowledgments of the deeds of lands sold to Huling and MeCalmont, for which tlio foregoing bond is taken; and which is included therein. Given under our hands and seal of office, 17th February, 1819.”
    These endorsements upon the bond were also, read in evidenee to the court and jury.
    The defendants then, on their part, gave in evidence the book of the treasurer, containing an account of the sales of the two hundred and seventy-five tracts of land, showing the sale of them to Mc-Calmont and Huling, two of the defendants; and that a number of them were subsequently redeemed by the owners thereof, and the redemption money upon them paid to the treasurer of the county.
    It was then admitted that the redemption money so paid in, remained in the treasury of the county for the use of the county, to be credited on the bond in suit; except so much as was paid out by the treasurer to the prothonotary for his fees, as mentioned in one of the endorsements on the bond, and the twenty-five per cent, paid to the purchasers. The reports of the auditors for the years 1819 and 1820 were given in evidence, where the county is charged with the amount of the money for which the bond was taken, and credited by the bond of the defendants, according to the order of the commissioners endorsed thereon. In the report of the auditors for 1820, the county treasurer is charged with six hundred ' and thirty-one dollars and eighty-one cents, received on account of the lands redeemed; and credited with the two hundred and seventy-three dollars, fees paid the prothonotary.

      The defendants then offered to prove by Robert Mitchell, one of the obligees and county commissioners named in the bond, that the purchase of the two hundred apd seventy-five tracts of land was mapl.e by the defendants,for the use of the county; that the bond was given for the amount of the taxes assessed, and the costs accrued on these lands. That by the agreement between the commissioners and the defendants, the land so purchased were alone to be bound for the payment of the bond. That upon the redemption of any of the lands, the money was to be left in the treasury and credited on the bond; and any tracts not redeemed were to be sold, without the expense of an inquisition. That the defendants were in no event to be personally responsible for any 'part of the amount of the bond. That the lands were purchased by the defendants for the use of the county, at the request of the commissioners of the county; because they believed that they would be sponer redeemed, than if purchased in by the commissioners thpmgelves, agreeably to law. To the admission of this testimouy the plaintiff’s counsel objected, apd the court below over-ruled the objection, and sealed a bill of exception taken by the plaintiff’s counsel thereto, which is assigned for the first error.
    The defendants, after Robert Mitchell was sworn and gave his testimony, offered the testimony of Jlbraham Selders, another of the obligees, apd pne ,of the epunty pomniissioners named in the bond, to the same effect for which tbc testimony of Mitchell was given, and alsp to show, tji.ai: immediately before and at th.e time of making tjb.e assignment of the bond tQlhe"commissioners of JVavr reji epupty, for wfiose use tips suit was proseepte.d, the commissioners of Venango .county related ap,d explained fully and fruly to the commissioners of Warren county, tjje agreement un.cl.er which the lands were purchased by tfie defendants, apd thp terms and conditions upon which, under that agreement, the bond was given, to the same extent that the defendants offered to make proof of to the pouj’t and jury; grid that the .commissioners agreed to, and did accept the assignment of the bond, subject to the agreement under' which it was gjiven, apd with full knowledge of it; to which the plaintiff’s counsel in likp man per objected, and the court over-ruling fhte pbjection, sealed a second bilj of .exception taken by them, whiph is assigned for the second erpor.
    The testimony of John McCalnj,ont, which was offered by the defendants, in thp next place, to prove further the nature and terms of the contract, under which the defendants purchased the land, and afterwards gave their hopd, was also objected to, but admitted by the court, and a third bill of exception taken, which is the ground of the third and last error.

      Galbreath for plaintiff in error,
    Contended, that the evidence was inadmissible, and went directly to contradict the writing in a material and vital part.

      1st. It was inadmissible, even if the transaction were with individuals treating for themselves, in their own rights. %Yeates, 370. 6 Bin. 489. 10 Serg. Sy Rawle, 339. 16 Serg. Sy Rawle, Q8. 1 Raivle, 108. Parol testimony can only be received against a writing in cases of latant ambiguity — to shew a fraud or plain mistake in omitting a clause intended to have been inserted. In Norris Peake, 178, the doctrine is fully explained and the distinction taken, between a latant and a patent ambiguity; and so in page 194. In 1 Phil. Bv. 481, the doctrine is fully laid down, that at law, there could be no question: and the rule is the same in Equity, page 501. 1 Johns. Chan. 425. A mortgage given on a number of lots, it was decided could not be varied or affected by proof of a parol agreement that the lien was to be in a rateable proportion to the value of each. 5 Serg. Sy Rawle, 363, Sy 10 Serg. Sy Rawle, 290, were cases of fraud, and the last was in favor of a surety. 16 Serg. fy Rawle, 345, was a case of latent ambiguity and failure of consideration. In 1 Bay. 461, it was decided that parol testimony was inadmissible to shew that to be in trust, which in the deed was absolute,
    In the second place, the transaction here was with agents and mere trustees, and the defendants were bound to know the extent of their authority: and would be the more likely to reduce their agreement to writing and therefore the objection to the admission of the evidence was strengthened. Paley on Agency, 4, 5. 11 Serg. Sy Rawle, 377,
    But in the third place, the defendants were treating with public officers; the transaction was clothed with an official sanction, and •therefore the objection to impugning it by parol still stronger, 3 Serg. <$’ Rawle, 604. 1 Bin. 470. 9 Serg. ¿r Rawle, 260. ■3 Yeates, 17. 13 Serg. Sy Rawle, 60. 9 Serg. Sy Rawle, 156. 4 Serg. fy Rawle, 134.
    In the fourth place, the transaction, as attempted to be proved by the defendants, would be fraudulent, and they being parties to it; cannot impeach it. It would be a fraud upon the owners of the unseated lands sold, compelling them to pay one dollar for the acknowledgment of each deed and twenty-five per cent, on that and other costs and taxes, and limit materially the right of redemption. It would be a fraud also'upon the county, taking from it the six per cent, per annum on the taxes and costs and accruing taxes, and the ultimate interest in the land in case of no redemption by the owners. 5. Bin. 109. 12 Serg. Sy Rawle, 448, 13 Serg. <5? Rawle, 224. Purd. Dig. 865. Section 4, 5 Sy 6 of Act of 1815.

    Lastly, I contend that the defendants in this case were estopped from shewing the trust alleged. They had received the benefit as individual purchasers. They had accepted and received the two hum dred .and seventy-five dollars for the acknowledgment of the deeds» and the twenty-five per cent, on the redemption, so far as the land had been redeemed, in the character of purchasers as individuals, which they could hot have received in any other character; and the law will not permit them, when the balance of the money due on their land is claimed from them in that character, to turn round and say that they were not purchasers as individuals, but merely as trustees for the county, 11 Serg. %• Rawle, 422. 17 Serg. fy Rawle, 364. 1 Rawle, 163.

      Pearson and J. Banks for defendant in error,
    whom the court declined to hear.
   The opinion of the court was delivered by

Kennedy, J.

Each of the errors assigned in this, case present» the same question; and will therefore be considered together as but one.

It is contended by the counsel for the plaintiff, thatthe testimony ought not to have been admitted; because it wept to alter, change the nature of, and contradict the bond upon which the plaintiffs found their claim; that no parol evidence ought to have been received of this character. To judge fairly of this matter, it is necessary to look at the endorsements upon the bond, as well as the face of the bond itself. These endorsements having been made at .the same time with the bond, between the same parties, and under the same assignment, are to be considered as parts of the bond, and all parts of the same transaction; and further, any agreement previously entered into between the parties, and therein referred to, must also be considered as part of the same transaction; whether reduced to writing or not. If this were not to be the case, it would deprive one of the parties of the benefit of an agreement entered into and well'understood by both; which in effect.would be a fraud that the law will not sanction. The first endorsement on the bond states that the bond was given for the taxes and costs which had been assessed and had accrued upon two hundred and seventy-five tracts of land lying in Venango and Warren counties, which had been sold on account of these taxes andjeosts, to two of the defendants, on the 23d day of December, 1818, in pursuance of an agreement betioeen the parties to the bond. What this agreement was, in its various terms and conditions, does not appear in the bond or either of the endorsements; but it is expressly referred to. Why is it referred to? Is it not plainly for the purpose of regulating and controlling the effect of the bond? The reference that is thu3 made'in the endorsement, to the agreement made previously; between the same parties, in respect to the sale and purchase • of the lands, is equivalent to a written agreement between them, that that previous agreement, relating to the purchase of the lands should be considered and made part of the bond itself; for the purpose of directlng and restricting its operation and limiting the liability of the defendants under it. If such a clause had been formally introduced, and set out in as many words as I have here repeated it, who could doubt for a moment, but thatparol testimony ought to be received, to prove what the agreement relating to the purchase of the lands was; when it appeared that the agreement itself was a parol one? Why is it that parol evidence shall not be received to alter, add to, diminish, vary or contradict a written agreement? Is it not for this reason, that where parties to an agreement have had it committed to writing, it must be presumed that it was done for the greater certainty, as well in shewing what the agreement was, as in preserving the evidence of it, and that these objects can only be attained by putting fully and explicitly into the writing every thing that was agreed on? This I consider the foundation of the rule that excludes parol evidence in such cases. But if it appear in the written agreement itself, that all and every thing which has been agreed on between the parties, was not put into it: and that instead of inserting it. a reference is made to it, as in this case, then the reason of the rule does not exist; and of course it ought not to to be applied.

Again it was argued, that if the parol evidence objected to, might have been admitted against Venango county, it was incompetent as against Warren county, which is the real plaintiff and party now interested. I can perceive no reason for this distinction. It is a principle too well established in this state to admit of any doubt, that the assignee of a bond takes it subject to every equity and objection which the obligor or obligors may be able to make against the payment of it. But in' this case, if the commissioners of Warren county did not know before taking an assignment of the bond, every thing that has been made known to them since, it was exclusively their own fault and negligence; because the endorsement on the bond was sufficient to inform them, that there was an agreement between the parties to it, that might have a very important bearing in regard to the payment of it. This however is not all; for part of the evidence objected to and admitted went to shew most clearly, that they had full information of all the circumstances and agreements between the parties to the bond, before they took the assignment of it; and expressly agreed to take it subject thereto.

In the last place, it has been said, that the defendants ought to be estopped from setting up the defence, to establish which, the parol evidence was offered; because that they, since the giving of the bond, have claimed and received the twenty-five per cent, paid in upon the amount of the sales of those tracts by the owners,, in redeeming them. That in doing this, they have disclaimed being purchasers of the lands for the use of the county, and have thereby taken and assumed upon themselves the character of pur-4 chasers, for their own use and benefit. Admit that this oug-h't to be the effect of their receiving the twenty-five per cent.-, Still it would not have been a good ground for rejecting the parol evidence,the admission of which is complained of as error. The counsel for the plaintiff below, in order to have availed himself of this ground of defence, ought, after the admission of the evidence, to’ nave requested the court to. charge the jury, that if they believed the facts to" be so, as the plaintiff in this particular alleged they were, that then they ought to find a verdict generally in favor of the plaintiffs, for the balance due on the bond. If, however, it was a part of the original agreement, that the defendants were to have this twenty-five per cent., I do not see how their demanding and receiving it could have any such effect as is contended for. If they had no right to claim it by their agreement, the commissioners ought not to have permitted them to receive it, or to get a credit for it. If nothing was said about it in the agreement, I would not suppose that they had any right to it; because they stood in the character of trustees for the county, and had no right to claim any thing beyond what was expressly provided by the terms of the agreement. But as it is said to have been allowed them without objection, it may therefore be presumed that they were entitled to it by their agreement.

Another ground taken by the counsel, why the testimony ought not to have been taken, was, if l understood it correctly, that it went to establish as a defence, a transaction which was repugnant to the spirit and provisions of the acts of assembly authorizing the sale of unseated lands for the payment off taxes; that by these acts the owners of such lands, in case any otherthan the county becomes the purchaser or purchasers of them, (a'nd the county is only permitted to buy in cases where the land is' not bid up to the amount of taxes and costs upon it,) the owners are allowed only two years to redeem in, and must, if they do redeem, pay twenty-five per cent, upon the amount for which the land was sold; but where the county, for want of buyers, is compelled to purchase, the owners are allowed five years to redeem in, by paying the amount of taxes and costs with six per cent, interest thereonr that the assignment was a fraud upon the owners of these unseated lands, and intended to depi’ive them of the benefit of the five years to redeem in, and to compel them to pay twenty-five per cent, upon the amount of the sales, which was more than the amount the taxes and costs would have been, although the county was in reality, as the defendants allege, the purchaser of the lands. I do not see' any réason for rejecting the evidence, because it proved that the bond was given under an agreement entered into between the defendants and the obligees in contravention to these acts of assembly. The only effect which this could have, if any at all, would have been to have avoided the bond as well as the agreement and arrangement under which it was given. This, however, would defeat the plaintiffs entirely ; but it is not claimed by tire defendants;

Judgment affirmed*


author: Rogers, J.

text:
    STOCKTON against WILSON.
    An eiecutdr ch smi tort is liable to the action of the lawful exe'cutóí or adniinistra. tor, or to that ofa creditor.
    if there be a lawful executor, he and an executor de son tort m-iy bo joined in an action; by a creditor, or sued severally.
    An executor de sdntorl may be sited and treated by the oreditor a’S-if he’were the rightful executor, and he should be thus styled in the wi'it and thus- declared against.
    An executor de son tort may protect himself as the rightful executor, by a proper plea; when he Will be answerable only to those who are entitled to the assetts; and to the extent only as they have come to his hands.
    An assignment of personal property, which is tainted With either moral or legar fraud, does not pass the property, but it remains in the debtor. Thus, if A-receives goods from B For tile purpose of defrauding creditors, and li afterwards dies, A may be charged in an action as executor de son tort of B, by arty one of his creditors, to the amount of the value of the goods, or his pro rata share of them.
    Error to the Common Pleas of Fayette county.
    To June term, 1824, Ñixon Wilson obtained a judgment against Janies Shriver for $1,024, which remained unsatisfied until after the death of Shriver, when the plaintiff issued a scire facias quare éaíecutio non against Ludias W. Stockton, executor of James Shriver, deceased. The writ was in the usual form. The defendant appeared and plead “ne unques executorthe plaintiff replied “that the defendant, after the death Of James Shriver, intermeddled With and administered the goods of the deceased, and thereby became ejecutor de son tort.” There was no rejoinder to this replication, but “issue and rule for trial” was entered on the docket. Verdict for plaintiff for' $330.
    In answer to several points put by defendant’s counsel, the court below, (Baird, president,) instructed the jury,
    1. “That if they believe that the defendant took and used as his own any property of Jantes Shriver, after his death, he may be liable, and is chargeable as executor in his own wrong; we Cannot think, however, that in this country, he must be charged to the amount of the whole debt. The presumption should be against him, as to the extent and value of the property; but to say that a man who, perhaps inadvertently, takes possession of goods of a deceased person, to the value of tcn dollars, shall be liable for a debt of ten thousand dollars, is to my mind too monstrous to be maintained. He ought to be responsible fully to the value of what came to his hands, and no more.”

      k. “That if the defendant after the death of James Shriver, having so taken the property, did deliver it over or dispose of it to¡ others, who had not administered,, and who had no legal authority to demand or receive the same, he may also be chargeable as executor in his own wrong.”
    3. “If L. W. Stockton had obtained the possession of this property from Shriver, in his life-time, under colorable and fair pretence of title, although defective in point of law, he will not be liable in this action; but if the transaction was fraudulent, and intended merely to cover the goods from Shriver’s creditors, it would be void; and the defendant taking the property and holding it, would be liable as an executor in his own wrong. Fraud however is not to be presumed.”
    To this charge exception was taken, which was here- argued by

      JLustin and W. Wilkins for plaintiff in error.
    Who contended.,, that if the goods came into the possession of the defendant, during the life-time of Shriver, and by his consent, this action could not be maintained. That even if the goods came to the possession of the defendant illegally, that he eould not be charged with them in this form of action; and that there could be no recovery of them but by a rightful administrator, Lee v. Wright, 1 Rawle, 149. If the goods do- belong to the estate of Shriver, is the plaintiff in this suit entitled to the proceeds of them, or should they go to all the creditors of equal degree juro rata ?

      Dawson for defendant in error, whom the court declined to heaiv
   The opinion of the court was delivered by

Rogers, J.

An executor de son tort is liable to the action of the lawful executor or administrator or to that of a creditor. If there be a lawful executor, they may be joined in an action by a creditor, or sued severally. The executor de son tort is liable only to the amount of the assets which come to his hand. In general he may be treated by the creditor, as if he were the rightful executor, and this is the mode of declaring against him, as well in the case of a scire facias on a judgment, as in an original action. If he expose himself to any inconvenience, in consequence of intermeddling with the estate of another, without rightful authority, he has no' person to blame for it but himself. He may, however, protect himself as the rightful executor, by a proper plea, when he will be answerable only to those who are entitled to the assets, and to the extent only, as they have come to his hands. Toller's Law of Executors.

This is admitted to be the law of England, and no satisfactory ¡reason has been given, nor has any authority been produced, which shows that the law either is, or ought to be, different in Pennsylpania. It is said that letters of administration should be taken .out by the creditor before suit; but why should the creditor be exposed to this trouble and expense, against- a person who has, without right, intermeddled with the estate?

The case of Lee v. Wright, 1 Rawle, 150, bears but little analogy to the present. In Lee v. Wright the court decided, that when a person dies intestate, leaving a debt or debts unpaid, the children of such intestate cannot maintain a suit for any part of his .estate, or the proceeds thereof, against one having the property of such intestate, or holding it as their trustee; but administration must be taken out, and the debts first paid. And that if a person inter-meddle with the goods of an intestate, or the proceeds thereof, and act as executor de-son tort, no administration being taken out, no trust can be raised in favor of children, as to such property, or the proceeds thereof, or any part of the same, so as to enable them to .sue for such property, while the creditors of the estate remain unpaid. The distinction is taken between a creditor and the children. Justice Tod, in delivering the opinion of the court, says: That in nineteen eases out of twenty, a creditor wil-1 very wisely prefer to fose his debt rather than take in hand to administer on the estate of a stranger. And as to there being no danger of mischief to arise from want of a legal administrato.r, because whoever intermeddles, is answerable to creditors, as executor de son tort, it may be observed, that.sueh remedy must always be doubtful and contentious.

The court charged the-jury, that if Stockton had obtained possession of the property from Shriver, by delivery in his life time, under colorable and fair pretence of title, although defective in point of law, he will not be liable in this action. Eut if the transaction was fraudulent, and intended merely to cover the same from Shriver's creditors, it will be void, and the defendant, taking the property and holding it, might be liable as executor in his own wrong. Of this the plaintiff in error complains; but in this we perceive no error. When the assignment is tainted, with either moral or legal fraud, the property does not pass, but remains in the debtor, as was decided in Lecky v. M'Clurg, a case not yet reported. It still remains the property of the assignor, which the assignee has no power to appropriate to his own use, without subjecting himself to the hazard of an action, as executor in his own wrong. The injury is precisely the same to the creditor, whether the property was delivered in the life-time of the deceased, if done fraudulently, or was taken by the defendant, after his death; nor does it strike me, that the defendant can better his situation, by being guilty of fraud, in holding goods by a conveyance from the deceased. The injury consists'in his appropriating property to his own use, in which he hag nq title, or. pretence, pr colorable title. And in this situation is Sfockton placed, by the verdict of the jury. He has intermeddled with property belonging to the estate of the deceased; and as he would have had to account for it, as part of- the assets, if he had been rightful executor, so he renders himself liable to suit as executor de son tqrt, either by the rightful administrator, or a creditor. The policy of the several states has varied in regard toan executor de son tort. In Pennsylvania, as in South Carolina, he is considered as a trespasser, and is chargeable as far as assets come to his hands, and is in every respect liable as an executor in his own wrong at common law. ' It will’be seen, that we differ from the court, in Green v. Dewit, 1 Rut. R. 183, where it Was held, that the intermeddling with goods, which are held by a conveyance from the deceased, although it be fraudulent, will not. make an executor in his own wrong. We conceive this decision to be a departure from the principles of the common law, and of no binding authority ip this state.'

Judgment affirmed,

       Ante page, 83.


author: Huston, J.

text:
    JONES against PORTER.
    An original deed which was proved in pursuance of the recording act, may b<? read in evidence, although such probate be made after spit brought.
    A possession of land for twenty-one years may be adverse and hostile, and such as, under which aman may protect himself by the statute of limitations, although he did not know that any other person claimed the land.
    Whether a defendant in ejectment obtained the possession of land by the consent of and under the plaintiff, is a fact for the determination of the jury,-if the possession was thus obtained, the statute of limitations will not protect the defendant.
    Error to Westmoreland county.
    In this action of ejectment, John Porter, William Russel ancf Mary his wife, and Robert Shannon and Elizabeth his wife were plaintiffs, and Robert Jones and C. Groves were defendants.
    The pnly questions of law which arose and were argued in this court were, whether a deed which had been proved by a subscribing witness, after suit brought, and without notice to the adverse party, could be given in evidence without further proof? And, under the facts which are fully stated in the ppipjop of his Honor? who delivered that of the court, whether the statute of limitations was a bar to the plaintiff’s recovery? The court below, (Young, President) sustained the evidence, and instructed the jury that the statute was not a bar.

      Armstrong and J. B. Alexander, for plaintiffs in error.

      J. Findlay and Burle, for defendant in error.
   The opinion of the court was delivered by

Huston, J.

This was an ejectment for a tract of two hundred and eighty-six acres of land in Allegheny township, Westmore-> land county. The plaintiffs shewed a patent to Charles Porter, that he died intestate, and that the plaintiffs and one Robert E. Por-< ter, now dead, were his heirs. Shannon shewed a conveyance from Robert, dated in 1814, to himself .for his share of this tract This conveyance or rather agreement to convey, was executed in presence of Robert Cochran and John Porter, and was proved by John Porter on 29th September 1830 in Montgomery county, and since recorded. When the original deed was offered, it was objected to “for want of identity of the parties, and because the execution of .the paper was proved after the commencement of this suit, without notice to the defendants.” The paper was admitted, The phrase “for want of identity, of the parties,” was sopposed in the agreement to mean, either that the John Porter who prov? ed the paper was not the same man who signed it as a witness, or if was alleged he might be the John Porter who is the plaintiff ip the cause — he swears he is the same man, and the fact that fus hand-writing was somewhat improved since 1814, if any presumption at all against his truth, was not sufficient to avoid the probate; at least it was not .snfficient to prevent it from going to the jury.

There was no proof that the plaintiff and the witness are the same person; and Stephen Porter, anuncie of plaintiff, proved their pedigree in the same county on the same day, before thq .same justice; it was then as probable that a son of his was the witness to the instrument, as that the plaintiff wak To reject proof, the court must know that the witness is interested. But John, Porter the plaintiff was a legal witness to prove a deed to his brother-in-law; he did not claim under that deed, nor did he claim the land conveyed by it, On a probate by John Porter, it could be legally recorded; and when recorded, a copy was evidence to all the world, it is not the case of Peters v. Candron, 2 Serg. & Rawle. There R, Peters the plaintiff proved a deed of partition, under which he as plaintiff in that case claimed.

It was admitted in this case, that as this deed had been recorded, a copy from the record would have been legal evidence; we have decided this term in Kelly v. Dunlop that the original so proved .as to be entitled to record, is evidence.

The plaintiff having shewn title, the defendant relied on the length of their possession; and they had been more than twenty-¡one years in the actual possession of the tract, before suit brought, The plaintiff alleged that the defendant’s ancestor entered as a tenant of the plaintiff.

The proof was, that in 1807 IP. Philliber proposed to settle on a tract in the neighborhood, that a W. M’Laughlin, who had the care of Porter’s land, advised Philliber to go on the tract in question, went with him, shewed him the land, and told him that he had been requested by Poi'ter to get some person to go on the land and make improvements and pay the taxes: and after shewing it said “Henry I advise you to go on the land, you will get a good lease at any rate,” and on Philliber making some objection for want of a team, M’Laughlin promised to send a team to haul logs together, when they were cut, for his house. It was further proved, that about 1812, two .of Porter’s heirs came to M’Laughlin’s and were directed to Philliber’s, and that afterwards Philliber said they Staid all night with him; on his being asked if they had done any thing about the place, replied, they had not, but that he was to live .oh it, for the heirs were scattered and there could be nothing ff.one for several years.

Defendant called many witnesses, and fully proved his settlement and residence; none of the witnesses had ever heard him mention the Porters: one of them proved that on the day he built his bouse, he said he would live there till he died, if they would let him; — tq what persons the word they referred did not expressly appear.

' The court left it to the jury whether the possession was adverse to the plaintiffs; expressing an opinion, that if the witnesses were believed, it was not.

In the discussion of this cause,agood deal was said about adverse possession, and what would or would not amount to such possession, as that the statute would, after twenty-one years, protect a man. In some of the cases it seems as if the' judge thought the man in possession must, to be protected, have heard of another claim, and must have entered and held in direct hostility to such claim; this is not the law in this state, if it is anywhere. Here at one time we bad much, and still have some land, never sold by the state, called vacant land; the first person who sits down on such land, acquires by his labour and residence a right to it; he must at some time pay the state for it, but against all others his right i.s good. It happens sometimes that land actually sold by the state, is by •mistake, supposed vacant, and under the idea that it is vacant, a person goes on it and labours and resides; it becomes hi§ home, and he believes it is his own; he claims it and knows of no other claim; — yet his possession is adverse to all the world: — it is the very definition of an adverse possession; his entry was a trespass on the owner, though he did not know there was an owner; and his claiming it as his own, is holding adversely, to any and every person. The decisions of the most respected courts support this idea. A vendee in fee derives his title from the vendor, but-his title, though derivative,- is adverse to the vendor; he enters and holds for himself.” 4 Peters 504. 7 Wheaton, 535. And it is laid down as the doctrine of that court, “that wherever the proof is, that one in possession holds for himself, to the exclusion of all others, the possession so held, must be adverse to all others, whatever relation in point of interest or privity he may stand in to others.” 5 Peters 440. And in that case, the' deed under which the defendant entered and claimed was void for one half; the vendors sold all, they had only authority to sell one half. — Such also is the doctrine in New-York. 9 Cowen 551, 2, 3. Where the deed purports to convey only part, the entry and possession will be presumed to be according to the right; but this may be rebutted by proof of a sole possession accompanied by a notorious claim of ail exclusive right tó the whole, 7 Wheaton 60.

A man may also enter on and continue in possession of land which he believes or knows, is claimed by another, but notoriously claiming for himself in opposition to that other;-and twenty-one years of possession will protect him; and this protection is not lost by declarations, that if the adverse right is asserted and proves the best, he must yield to it.

There is still another case, a man may enter on land, knowing of an adverse title, and admitting it, and intending to claim under* if> and to take a lease when the owner comes; ormay enter under a con - tract with the owner or with his agent, and such entry and posses sion is not adverse, until he declares his intention to hold and claim for himself: and this is more particularly the case, when the owner or his agent shewed the land to the tenant, and induced him to take possession under and for the owner.

How the tenants or their father-in-law entered in the present instance, as in all cases, is a fact to be decided by the jury, and was properly submitted to them. There Was proof uncontradietcd,, that he was shewn the land and induced to go on it by the agent of the plaintiffs, to improve the land for them, on a promise of a good lease. That several of the witnesses never heard him speak of the plaintiffs is no proof againstthis: Nor is the declaration thathe would stay there as long as he lived if they would let him. They might refer to the plaintiffs, and no witness heard him say he entered claiming as his own; or that he held it as his own. How he entered and claimed was properly left to the jury; whether plaintiff’s-witnesses Were to be believed was to be decided by the jury; if believed the cause was with the plaintiffs,

Judgment affirmed,.

         Postea 136.


text:
    KELLY against DUNLAP.
    In order to tíié admission of a deed of conveyance in evidence, it is' not material whether the acknowledgment thereof was (hade before or after suit brought. The ■acknowledgment makes the original deed, as well as the record thereof, admissable evidence.
    Where there are ttko Subscribing witnesses tó a deed,- proof that one of them has removed out of the state, and of the band-writing of the other, is sufficient to admit the deed in evidence.
    The acknowledgment of a deed of conveyance makes the receipt for the purchase-mo’néy annexed to it competent evidence.
    Error to the Common PleaS Of .Indiaita county.
    This case, wherein Robert A. Dunlap was plaintiff, and ÉobeH Kelly defendant below, was Submitted by J. B. Alexander fori plaintiff, and White for defendant in error,' Without argument.The facts are süfficiéntly stated in the opinion of the c'ourt, which Was delivered by
   Huston, J.

This was an action óf trespass fori cutting timber; the pleas were, not guilty; that the place where, was the freehold-of the defendant, and issues.

As it frequently happens, the facts material to decide the cause,, would s'gem not to have been as fully before the court below as could hath been wished; and we are pretty sure that we have not every thing which appeared there. Frequently matters are stated by one party or the other, and being admitted by the opponent, they become the ground of the decision of the court and jury, which, ne-vertheless, do not appear on the record as sent to us. For example, in this Case, Samuel Kelly, the elder, by what is Called an article of agreement, dated the 19th of April, 1806, but which is in fact a formal deed with covenant for further assurance, and a clause of warranty against himself and all claiming Under him, sells the land in question to the plaintiff. There is a special receipt for one hundred and fifty-five dollars of the purchase-money, and an agreement to pay for any overplus, if on measuring, any is found to exist, at the rate of five and an half dollars per acre. The land sold is specifically described as part of a large tract. This article or deed was never recorded.

On the 10th of April, 181S, the same S. Kelly, the elder, sells the' Whole tract to S. Kelly, the younger, by deed, which was recorded the 28th of April,- 1818. And yet the title to the whole appears .to have been made to S. Kelly, the elder, after the date of both these deeds, viz. the 13th of April, 18Í8 His title then acquired, will, to be sure, enure to his alienees. Probably it was well understood below, that he was the owner at the date of both deeds, and that the deed from James Kelly, the person in whose name the' warirant had been taken out, was a mere formal transfer of legal title.

On the 24tlt of September, 1822# Samuel IQlly, the younger# by articles, agreed to sell all that part of the tract of two hundred and thirty-two and one-half acres, except the part claimed by the plaintiff, (about twenty acres,) to R. Kelly, the defendant. These articles were recorded on the 24th of September, 1824.

On the 25th of September, 1827, Samuel Kelly, the elder, by deed, reciting that of the 19th of April, 1806, makes a further deed to R. R. Dunlap, the plaintiff, in no respect more formal than the first. This was recorded on the 26th of December, 1827.

On the 1st of April, ÍS28, S. Kelly, the younger, conveyed thé part in dispute, and which was excluded from his first sale, to D. Kelly, the defendant.

On the 30th of September, 1830, (a few weeks before the trial; and after the cause was at issue,) Samuel Kelly, the elder, acknowledged the instrument, dated the 19th of April, 1806, before a justice of the peace, and when it was offered in evidence, it was objected to, because acknowledged after this suit was pending; the court admitted it to be read, and exception was taken.

The witnesses to the deed were R. S. fy J. M., and the same persons were witnesses to the receipt. That receipt, besides the acknowledgment of payment of one hundred and fifty-five dollars,contained an agreement to pay any more which might be due on measuring the land; and a stipulation that Kelly was to pay the price of patenting: it was signed by both S. Kelly and R. Ji. Dunlap. The defendant proved that R. S., one of the witnesses, had removed out of this state, and that J. M., the other witness, was dead; and then proved the hand-writing of J. M. The admission of this in evidence was also objected to, but admitted, and exception taken. There was no error in admitting either of the papers.

Our acts of assembly for recording deeds, prescribe the mode id which a deed shall be acknowledged or proved, in order that it may be legally recorded: if not so acknowledged or proved, the recording is of no effect: if duly acknowledged or proved, and recorded# “the copy, certified under the seal of the proper office, which the recorder is required to affix thereto, Shall be received in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in'law, as the original deeds themselves,” &c. A deed, being generally necessary to show title to land, passes with it, and may be required, when the grantor and v/itnesses are dead: it is generally necessary to exhibit it in all suit® respecting that land; and these suits may be with different people, and in different courts: it was wise, then, to provide a mode by1 which the deed could be authenticated; so as that it could be read in all suits, in all courts, against all people. Our act of assembly has done so, and as the act makes no difference whether the deed has been acknowledged or proved before or after a particular suit was instituted, so the courts have made none:' it is to be “a/loioedand read in all courts where produced.” If we were to require.notice to the adverse party where a suit is pending, we might go on and require a new acknowledgment, and notice in every suit which should hereafter be pending, and thus render the provisions of the law in this respect useless or deceptive.

But another point is madera nisi prius decision, by an eminent judge, in another country, has said, that though an act of parliament has authorized a paper to be recorded, and made a copy of the record evidence; yet that does not make the original evidence. It is no doubt pleasant to discover what escaped all who went before us, and also to be early acquainted with the discoveries of others. Every discovery, however, of what was obvious, and yet not seen by any person, is suspicious: it may be a mistake, and not a discovery; or if a discovery, may be useless or pernicious. The one in question, (and in discussing it I confine ¡myself to our own acts on this subject,) would destroy at one blow all our recording acts. The “copy of the record under seal,” is declared and enacted to be a» good evidence, and as “valid and effectual in law, as the original deeds themselves.” This must mean as the original, acknowledged or proved in such manner as that it could be legally recorded ; but if the original deed, so acknowledged or proved, could not be allowed to be read, and was not valid and effectual, the copy could not be; and all our laws, and all our records of deeds are rendered useless. Hitherto the deed duly acknowledged or proved,, or the: copy of such deed when recorded, has always been received in all our courts: we have had this point in two cases at this term, and they are the two first in Pennsylvania. I apply to them what the Supreme Court of the United States have said, when speaking of the Statute of Elizabeth, respecting fraudulent conveyances. The modern decisions go beyond the construction which prevailed at the American revolution, and ought not to be followed. 5 Petersr 280.

The acknowledgment of the deed made the receipt at the foot of it evidence; such has been the uniform understanding — I don’t say decision — for until now I do not know that it was disputed — that it is disputable is another discovery. But in this case the receipt is not in the usual form, and may be called in some respects an additional agreement. It was, however, proved in court in the way known to our law and practice. • This exception was not pressed.

The remaining exception is to the charge of the court, “in directing the jury, that the plaintiff might maintain his suit, without proof of notice of the .articles of the 19th of April, 1806, between Samuel Kelly, the elder, and B. EL. Dunlap.”

The exception is stronger than the charge will justify. The judge said: “There is no express proof of notice to the defendant, tbe brother-in-law, of the previous contract between his father and the plaintiff; but under all the circumstances of this ease, no such proof is necessary;” and then refers the jury to the whole testimony. It was rightly left to the jury. The facts that the father embraced in his deed to S. Kelly, Jr. what he had before sold to Dunlap, and been paid for; that S. Kelly, Jr. conveyed the residue of the tract, excepting what had been sold to Dunlap; that Dunlap then got a second deed from his father-in-law, and put it on record; after which R. Kelly got a deed from S. Kelly, Jr. for the part conveyed to Dunlap, for less than half of what Dunlap paid for it twenty-four years ago, made a case in which the judge could not say there was no notice to the defendant of the agreement or deed of 1806, and one which was proper to submit to a jury, and in which it is not strange, they found for the plaintiff.

Judgment affirmed.