text:
    Jefferson County versus Slagle et al.

    1. A contract made by county commissioners within the scope of their authority is binding on the county, although not made at their office.
    2. Two commissioners have power to make a contract if made in their capacity as commissioners.
    3. County commissioners contracted with Dickey to build a court-house, he contracted with Slagle for bricks and neglecting to pay, Slagle refused to deliver them. Two of the commissioners told Slagle if he would deliver the bricks they would pay him. The jury found that they made the promise officially. Reid, that the promise was not within the Statute of Frauds and that the county -was bound.

      October 20th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of* Common Pleas of Jefferson county: Of October and November Term 1870, No. 94.
    On the 25th of November 1868, William and Daniel Slagle brought an action of assumpsit against the county of Jefferson, for .a quantity, of bricks furnished by them for the erection of the court-house.
    On the 20th of July 1866, James T. Dickey contracted with the county commissioners to erect a court-house to be finished on or before the 1st of December 1868, for which he was to be paid $57,600, of which $5000 were to be paid in hand, $10,000 on the 1st of January 1867, “ and the balance to be paid as the work progresses less 20 per cent, of the amount of work and material furnished at the time the payments are made;” the 20 per cent, to be paid when the work should he completed.
    On the 11th of February 1868, the plaintiffs contracted with Dickey to manufacture 300,000 bricks for him, one-half to be ready on the 1st of June; and the remainder on the 1st of December in the same year, Dickey to furnish all the material and pay the plaintiffs $7 per thousand for making them ; the plaintiffs “ to receive one-half the pay in money, or such merchandise as is needed as the work progresses, and the balance after the contract is finished.”
    On the trial, December 22d 1869, before Campbell, P. J., W. Slagle, plaintiff, testified that in July after Dickey had received 25,000 or 30,000 bricks, he told the commissioners that he could not let Dickey have any more bricks without money, he stopped Dickey from getting bricks, $200 were paid him afterwards. August 17th, “ I called on the commissioners before bringing this suit; I think in November 1868. I presented them the amount of our claim for the bricks, and they would not do anything; they wanted us to wait and not do anything; I called on them at their office.”
    J. Buffington testified that about July 20th, Lucas and Monks, two of the commissioners, came to Slagle and wanted bricks; Slagle said he would furnish no more bricks to Dickey. “ Lucas told him to go on and make them as fast as he could and he would stand good for the pay. He told it again in-presence of Monks ; said they had about $19,000 back on the contract between Dickey and county, and they said they would pay Slagle out of that money.” The bricks were furnished to the court-house after this arrangement.
    A. McLain who superintended the building for Dickey testified that they were out of bricks and spoke to the commissioners about it; one of them said, “ it was all fixed, the county would pay the Slagles.”

      Dickey testified that the commissioners told him that they had told the plaintiffs to go on and make the bricks, and they, the commissioners, would see them paid. “ It was the understanding with me that the commissioners were to pay Mr. Slagle for the bricks, and keep it out of my contract.”
    D. Slagle, plaintiff, testified : “ The commissioners came down (to the brick-yard), and asked about these bricks, and we told them that we had refused to give him any more bricks because he did not come up to his contract; they told me if there could be no other way, they must have the bricks of course. I told them it did not make any difference to me whether they took the bricks or not, for we could sell them for more than the contract-money. They said they were hound to have the bricks, because it would not pay to have the hands lying here idle; they said they would pay for the bricks; that they were back on Dickey $19,000. I told them that if they would stand good for the pay, of course they could have the bricks. They said they would hold back out of Dickey’s contract to make themselves safe.”
    The defendant offered “ to prove that'the arrangement at the brick-yard was only a conditional assumption, and that they informed Slagles that Dickey had money enough coming from the county, and it would be all right; that in November or December following the commissioners had paid out all the money and more than was due him by the commissioners ; that he refused to go on with the contract, and the work ceased. In consequence of that the commissioners proceeded to relet the contract for finishing the house; that they did relet it to Nicholson & English for $21,742.” The offer was objected to, rejected, and a bill of exceptions sealed.
    For the defendant, Monks one of the commissioners testified that about July 1st he and Lucas were returning from looking at a bridge at Troy, and stopped at the brick-yard; that plaintiffs said to them they had heard that Dickey was about failing; Lucas told them to hurry and get the bricks made; that Dickey was drawing money every day, and if they had their bricks ready he thought there would be no trouble about the pay; there was no agreement by the commissioners to pay the debt. There was no official act of the commissioners making a contract with the commissioners.
    The defendant proposed to prove that the commissioners paid Dickey, on his contract, after this alleged arrangement, $5900.' This was objected to, rejected, and a bill of exceptions sealed.
    Lucas testified substantially as Monks had done, and also that they had gone as commissioners to see the bridge and charged the county for one day.
    Another commissioner testified that whenever the interests of the county required it, they attended to business out of the office.

      The following were the plaintiffs’ 2d point and the answer:—
    “ 2. If two of the commissioners, in order to obtain the brick to finish the court-house, went to the yard and promised the plaintiffs, that if the bricks were delivered at the court-house, they would pay for them, and the bricks were delivered on the strength of this promise, the county would be bound by their agreement for the amount of bricks delivered after and in pursuance of that promise.”
    Answer: “We answer the plaintiffs’ 2d point in the affirmative, if Lucas and Monks went to the brick-yard and made the contract, or assumed the payment of the bricks as commissioners, and not as individuals. It is first for you to determine whether there was any assumption at all by Lucas and Monks as commissioners; or did they merely say, that if they would hurry up the bricks— that they were paying Dickey money as fast as he did the work, and that they would get their money out of payments made to him. They may have said they had no doubt but plaintiffs would get their money from Dickey, out of money to be paid to him. It would avail nothing. They may even have asserted, that we will see that they are paid, because there was still $19,000,— still coming to Dickey on contract, and if the bricks were furnished, they would see that Dickey paid them. It would avail nothing. They must have made the assumption as commissioners. If they did, and plaintiffs relying on such assumption by them as such, delivered the bricks, the plaintiffs may recover. How are the facts ? They are for you.”
    The defendant’s points and answers were:—
    “ 1. There is no such action shown by the board of commissioners as would bind the county. That admitting there was an assumption by Monks and Lucas at the brick-kiln, it would avail the plaintiffs nothing, as they were not acting as a board of commissioners, and could not bind the county.”
    “ We decline to answer defendant’s 1st point as requested. Lucas and Monks may have been acting for the county in visiting the brick-yard as much and in the same way they were while looking after the county bridge at Troy. If the assumption was made by the county, and the bricks were delivered on the faith and credit of the county, and the commissioners there on the ground pledged the county for the payment of the bricks, the plaintiffs may recover. This substantially answers this point in the negative. If Lucas and Monks pledged themselves, and not the county, in payment, we answer this point in the affirmative.”

      “ 2. The Statute of Frauds bars the plaintiffs’ claim; the amount of the assumption being over $20.” .
    “We answer the defendant’s 2d point in the negative. As we understand this case, if the county made the assumption at all, it was to secure the bricks for the court-house which they were authorized to build, and which was building by Dickey under a contract; and on the failure of their contractor to pay for the bricks that were to go into the building, and did go into the building. And if the commissioners contracted to pay for the bricks in the place of the builder, they may do so, and the contract is for the good of the county, and they are paying the debt directly, which before they were to pay would be through the builder.”
    “ 3. The commissioners having made a contract with James T. Dickey for the erection of the court-house, the power of the commissioners would be exhausted in that direction, and no contract made with the Slagles for the furnishing of materials would be binding on the county; and this much more so, if Slagles knew of the contract with Dickey.”
    “We answer the defendant’s 3d point in the negative, and refer to our answer to last point.”
    “4. No amount having been demanded by the plaintiffs from the commissioners of the county before said suit, the action cannot be sustained, and the verdict must be for the defendant.”
    “ Whether the facts assumed in this point are so or not is for the jury. If they are, we answer in the affirmative; but if plaintiffs, before bringing suit, presented their bill and demanded payment, and the commissioners, without looking at it or receiving it, flatly refused payment, the plaintiffs may recover what is justly due, without proving the presentment of that bill, or what that bill was.”
    The verdict was for the plaintiffs for $890.02.
    The defendant removed the case to the Supreme Court, and assigned for error:—
    1, 2. The rejection of the offers of evidence.
    3. The answer to the plaintiffs’ point.
    4, 5, 6. The answers to the defendant’s points.

      A. L. Gordon (with whom was I. Grordon), for plaintiff in error.
    — The commissioners, of whom two may be a board, must meet by notice or adjournment, and have a public office at the county seat: Act of April 15th 1834, §§ 11, 19, 20, Pamph. L. 589, 541, Purd. 204, pl. 14, 208, 209, pi. 8, 9. To do an act of a public nature all the body must convene: Baltimore Turnpike, 5 Binn. 485; Cooper v. Lampeter Township, 8 Watts 128 ; Treichler v. Berks Co., 2 Grant 445; Turnpike v. Craver, 9 Wright 386. The case is within the Statute of Frauds: Maulé v. Bucknell, 14 Wright 52; Landis v. Royer, 9 P. F. Smith 95.

      G. A. Jenks (with whom were Jenks & Clark), for defendants in error,
    referred to the Act of 1834, supra. A majority of the commissioners can bind the county: Cooper v. Lampeter Township, Treichler v. Berks Co., supra. Allegheny v. Leckey, 6 S. & R. 170; Dauphin Co. v. Bridenhart, 4 Harris 461. The contract proved by plaintiffs was direct with the commissioners, and is not within the Statute of Frauds: Arnold v. Stedman, 9 Wright 188; Landis v. Royer, supra.

   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— This action was brought by the plaintiffs below, against 'the county of Jefferson, to recover the price of bricks which they delivered to build the court-house in the borough of Brookville in said county. It appeared from the evidence given on the trial that the commissioners entered into a written agreement with James T. Dickey for the erection of the court-house, by which he agreed to furnish the materials and do the work for the sum of ’$57,600; and that Dickey entered into a written contract with the plaintiffs, by which they.agreed to make 300,000 bricks at $7.50 per thousand, and have them ready at the times stipulated in the agreement; that after they had delivered to him 25,000 or 30,000, they refused to deliver any more because of his failure to pay for them according to the terms of the contract; and that afterwards they delivered the bricks in controversy at the request of two of the commissioners, but whether upon their express promise to pay for them or not, was the matter of dispute between the parties, and in regard to which the evidence was conflicting. The jury, under the instructions of the court, found that the bricks were delivered on the promise of the commissioners to pay for them, and returned a verdict for the plaintiffs, upon which judgment was entered by the court below.

The assignments of error embrace the exceptions taken by the defendant, on the trial, to the rulings of. the court in the rejection of evidence, and to the instructions given to the jury in answer to points submitted on both sides.

The first question presented by the specifications of error which we shall consider — though not the first in the order of the assignments — is, whether the two commissioners had power to bind the county by their promise to pay for .the bricks, which the plaintiffs delivered at their request? This is the main question in the case; and it arises on the answers of the court to the plaintiffs’ 2d and the defendant’s 1st point. The plaintiffs requested the court to instruct the jury, that if two of the commissioners, in order to obtain the bricks to finish the court-house, went to the yard and promised the plaintiffs that if the bricks were delivered at the court-house they would pay for them, and the bricks were delivered on the strength of this promise, the county would be bound by their agreement for the amount of bricks, delivered after and in pursuance of such promise. The court answered this point in the affirmative, if the two commissioners went to the brickyard and made the contract, or assumed the payment of the bricks as commissioners, and not as individuals. If they did, and plaintiffs relying on such assumption by them as such, delivered the bricks, they may recover. The defendant, on the other hand, requested the court to charge that there is no such action shown by the hoard of commissioners as would bind the county. That, admitting that there was an assumption by the two commissioners at the brick-kiln, it would avail the plaintiffs nothing, as they were not acting as a hoard of commissioners, and could, not hind the county. The court declined to answer this point as requested, and added that the two commissioners “may have been acting for the county in visiting the brick-yard in the same way and as much as they were while looking after the county bridge at Troy. If the assumption was made by the county, and the bricks were delivered on the faith and credit of the county, and the commissioners there, on the ground, pledged the county for the payment of the bricks, the plaintiffs may recover. If the commissioners pledged themselves, and not the county, in payment, we answer this point in the affirmative.” Did the court then err in the answer which it gave to either of the points ? The commissioners are the public agents of the county, and the law expressly provides that two of them shall form a board for the transaction of business, and when convened in pursuance of notice, or according to adjournment, shall be competent to perform all and singular the duties appertaining to their office. It is true, that they are required to keep their offices at the seat of justice of the respective counties, but it does not follow that they cannot make a valid and binding contract on behalf of the county, unless they make it in the office which, they are required to keep — if such contract is in other respects within the scope of their “authority. Nor has it been the practice of the commissioners to make contracts in behalf of the county only in the commissioners’ office.” They have been in the habit of making contracts wherever it best suited their own convenience and the exigency of the public business. Why, then, should the validity of contracts, so made, be questioned or denied ? If made within the scope of their authority, and without any fraud or collusion on their part, why should they not he valid and binding on the county whenever made ? The statute does not declare contracts made out of “ the commissioners’ office” illegal, and there is no rule or principle of the common law which renders them void. The contract in this case was within the scope of the commissioners’ authority, and, under the provisions of the statute, the two commissioners had power to make it — and if they made the contract in their capacity as commissioners, as the jury have found, it is binding on the county, if it is not within the Statute of Frauds, which is the next question to be considered.

The court was requested in defendant’s 2d point to charge that the Statute of Frauds bars the plaintiffs’ claim. The court answered this point in the negative, and assigned, in substance, as a reason therefor, that if the county made the assumption at all, it was to secure the bricks for the court-house which the commissioners were authorized to build; and if the commissioners contracted to pay for the bricks in the place of the builder, they might do so, and the contract was for the benefit of the county. Did the court err in refusing the defendant’s point ? The contract as averred in the declaration and as found by the jury under the evidence, was not a contract to answer for the debt or default of the contractor, but a direct promise, or agreement, on the part of the commissioners, to pay for the bricks in consideration of which the plaintiffs agreed to deliver them. It needs no' argument to show that such a contract is not within the Statute of Frauds. The plaintiffs did not deliver the bricks under their agreement with Dickey, but on the promise or contract of the commissioners to pay for them. The debt, contracted by them for the bricks, was, therefore, as much a debt of the county as if the plaintiffs had made no.agreement with Dickey for their delivery — but had contracted with the commissioners in the first instance. The 6th specification of error was abandoned on the argument, and there is nothing in it which requires any special notice at our hands. The remaining assignments relate to the rulings of the court in rejecting the defendant’s offers of evidence. It was admitted that the defendant was allowed to prove so much of his first offer as showed that the assumption by the commissioners was only conditional. Eut the complaint is that the defendant was not allowed to show that the commissioners paid Dickey, after the alleged arrangement, the sum of $5900; and that in the following November or December they had paid out all the money, and more than was due him; that he refused to go on with the contract for building the court-house, and the commissioners relet the contract to Nicholson & English for $21,742. We are of the opinion that the court rightly rejected these offers. They were not relevant to the issue, for they did not tend to show that the commissioners did not promise to pay the plaintiffs for the bricks in controversy, nor to rebut any evidence given by them.

The question whether the commissioners promised, on behalf of the county, to pay for the bricks, and whether .the plaintiffs delivered them in consideration of their promise, was fairly submitted by the court to the jury, and as we discover no error in the record, the judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    Craft et al. versus Yeaney et al.

    1. Calls in a deed are always to be controlled by lines on the ground.
    2. Heath sold a subdivision of a warrant, marking the east line on the ground, west of the east line of the warrant; the deed called for the east line of the warrant as the boundary. Held, that the call was controlled by the marked line.
    3. Heath brought ejectment for the portion — which was unseated — east of the subdivision and recovered a verdict and judgment; a habere was not issued. Held, that he might maintain trespass on his constructive possession.
    4. Caldwell v. Walters, 10 Harris 280, distinguished.
    October 20th 1870.'
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Common Pleas of Jefferson county: No 1, to October and November Term 1870.
    This was an action of trespass q. c. f., commenced August 24th 1866, by Daniel Yeaney and F. D. Campbell, against David Craft and others, for cutting timber on the south-east corner of tract 4019, warranted in the name of John Nicholson.
    The cause was tried September 15th 1869, before Campbell, P. J.
    Elijah Heath became the owner of the tract in 1837 ; shortly afterwards he sold a portion off the west end of the tract to one Thresher. He subsequently divided the remainder of the tract into six lots by a line running east and west about through the centre, and by cross lines running north and south, numbering them from 2 to 7 inclusive. He sold five of these lots at different times, their aggregate contents according to the deeds being 1256 acres; the locus in quo, being No. 7 at the south-east corner of the lot, he afterwards sold to Rachel Scott on the 22d of March 1856, as containing 138f acres. The description in the deed was : “ all that tract or subdivision of land situated, &c.: Beginning at the north-east corner of a lot of land sold by me to Mr. Frost, thence east to the east line of the entire tract No. 4019, thence south one hundred and sixty perches to a post on the south line of the aforesaid larger survey, thence west along the line of John Elliott’s land to the corner of land sold by me to Mr. Frost; thence north along his line one hundred sixty perches to the place of beginning, containing one hundred and thirty-eight and three-fourths acres, with the usual allowance for roads; being subdivision No. 7 of tract No. 4019, surveyed on warrant to John Nicholson.”
    Heath alleged that the lots were sold by metes and bounds, and the lines marked on the ground; that by mistake in the measurement the deeds called for more land than was actually in the lots, and that the eastern line of lot No. 7, according to the marks on the ground made at the time of the survey and sale, did not in fact reach the eastern line of the warrant. Rachel Scott conveyed No. 7 to Jacob Craft on the 20th of July 1880, by the same description as it was conveyed to her. Elijah Heath, claiming that the part of the lot which was between where he said its east line was and the east line of the warrant had not passed by the deed to Scott, brought an ejectment against Jacob Craft for the locus in quo, to September Term 1860. On the 1st of May 1862, E. Heath conveyed the land in question to John Heath; on the 8th of December 1862, there was a verdict for Heath in the ejectment, on which judgment was entered on the 2d of February 1863; no habere was issued. The locus in quo was unseated. On the 11th of May 1864, J. Heath sold to the plaintiffs, and on the 8th of January 1866, Jacob Craft conveyed to David Craft, one of the defendants.
    The defendants gave evidence for the purpose of shbwing the possession of the locus in quo by the Crafts from the time of the conveyance to Jacob.
    The plaintiff in rebuttal offered the deposition of E. Heath. It was objected to “because he is interested and not a party to the suit; because he is estopped by his deed, and because he cannot control his deed so as to make it include less land than is embraced in the calls, nor can he contradict his deed.”
    The court received the offer, saying:—
    “ While it is true the deed cannot be changed, or construed, or affected by parol, it is competent to prove outside of the deed that the calls in the deed are not on the ground, or that a line or boundary called for in the deed is in a different place than that contracted for by the parties, or that what is called the eastern line of warrant No. 4019 is not at the place sold and bought to.” A bill of exceptions, was sealed.
    Heath testified that he sold the land by the acre and made deeds according to the survey he had made and draft exhibited, and sold the lots including No. 7 according to those lines, supposing he had gone to the east line of the warrant, and was paid accordingly; that afterwards he found that his east and west lines were too short, he got Mr. Thompson to ascertain the facts and refunded to all except Craft as the owner of No. 7, who refused to receive the money. He supposed that he had run out as far as No. 4019 extended. The plaintiffs gave evidence of declarations of Craft that the line plaintiffs claimed to was the true line. They gave evidence by J. Caldwell and J. J. Gr. Thompson of marks being on the line to which the plaintiffs claimed, of the same age as the date of the deed ; Thompson went out at the request of E. Heath, found the former survey had been inaccurate; amongst other things, the east line of warrant being 200 perches east of No. 7; he made a survey according to the marks, &c. He testified that the whole of the original survey had been a blunder, and that No. 7 contained about 24 acres less than the deed called for. The plaintiffs paid taxes for the locus in quo from 1864 till this suit.

      The plaintiffs’ point and its answer were: — ■
    “ The' tract sold by deed of Heath to Mrs. Scott is subdivision lot No. 7. If the jury find the lines of that lot to have been run on the ground, defendants are held to them and cannot go beyond them, though the call is for the eastern line of 4019.”
    Answer: '“ We answer this point in the affirmative, as stated in our charge.”
    The defendants’ points and answers were :—
    “ 1. The court is requested to instruct the jury that as Elijah Heath, the plaintiffs’ grantor, recovered a judgment in ejectment on the 8th day of December 1862, for the land off which the timber in dispute was cut against Jacob Craft the defendants’ vendor, and never issued a habere facias possessionem, nor dispossessed Jacob Craft nor his vendee,. David Craft, this action of trespass will not lie, even if the plaintiffs had a title, if the jury believe the defendants were in possession when the timber was cut.”
    Answer: “We answer the defendants’ point in the affirmative, if there was not a division line on the ground dividing lot No. 7 from the land on which the trespass was committed, because the actual possession on lot No. 7 would extend to the eastern warrant line of No. 4019, and the actual possession would extend over all the land cleared by plaintiffs, and trespass would not lie ; but if the jury should find there was such dividing line, and that the defendants’ vendor bought to that line, the balance lying between that and the eastern line of the tract would be unseated, and the plaintiffs would recover and did recover on their legal title, and unless the defendants had actual possession on their part, of which there is no evidence, a habere facias would amount to nothing, for there could be no putting out of possession when the defendants had none, although they defended the action of ejectment ; and if the land was unseated and no actual possession, the action of trespass would lie and plaintiffs may recover.”
    “2. The specific call in the deed from É. Heath to Rachel Scott, for the eastern line of tract No. 4019, is not so controlled by the superadded description, naming the lands conveyed as subdivision No. 7, as to limit it to the eastern line of subdivision No. 7.”
    Answer: “ Describing the land sold to Scott as lot No. 7 is a part of the description, and in the absence of lines found on the ground would not control the call in the deed for the eastern line of the tract; but if Heath and Craft made lines on the ground bounding subdivision No. 7, and called the eastern line of that lot the eastern line of the warrant, when it was not, although that call was put into the deed, and both the vendor and the vendee believed that the subdivision line was on the warrant line, and although that line was run and marked with that understanding, if they were mistaken, and the land actually staked off fell short of the warrant line, the lines on the ground would govern, and defendant would be restrained to the land he actually bought.”
    “ 3. The deed of E. Heath to Rachel Scott carries the eastern boundary of the land therein conveyed to the eastern line of tract No. 4019.”
    Answer: “ This is so, and unless the call of the deed is restrained by the lines on the ground, the plaintiffs cannot recover.”
    “ 5. Under all the evidence in this case the plaintiffs cannot recover.” This was refused.
    The court charged:—
    * * * [“ The question to be determined by the jury, in the first place, is, What land and how much land did Elijah Heath sell, and Mrs. Scott and her vendees buy ? If the sale was made by lines marked and ascertained on the ground at the time; if the vendor and vendee went upon the ground and staked or marked off the ground, or adopted lines already marked on the ground, whether the deed correctly described those lines or not, the lines on the ground would govern.] If a line was marked on' the ground on the east side of lot No. 7, and the sale was made by that line, the fact that it was erroneously called the east line of the warrant would not carry it there; nor would the fact that Judge Heath described it in his deed as the eastern line of the warrant No. 4019 make it such, if the line sold to was 200 perches west of it and marked on the ground. It may be doubtful whether either Judge Heath or Mrs. Scott knew where the warrant line was at the time the deed was made; but a deed is to be taken most strongly against the grantor, and if lot No. 7 was not sold by marks on the ground, and the reason the length of the north and south boundaries of the lot were not given, was that the east line was to extend to the east boundary of the warrant, whether then ascertained or not, and it was afterwards ascertained that the boundary was even 200 perches further east than the parties thought it was, the call in the deed for the eastern boundary of the warrant would carry it there, and the plaintiffs cannot recover. [Heath testifies that he sold by the lines run on the ground. Thompson and Caldwell testify that lines are found on the ground, well marked, on the east side of No. 7, about 200 rods west of the warrant line. If there is such a line, and if Heath sold by that line, the calls in the deed must give way to the lines on the ground, and the plaintiffs would be entitled to recover.]
    The verdict was for the plaintiffs for $580.08.
    The defendants took a writ of error and assigned for error :—
    1. The answer to the plaintiffs’ point.
    2, 3, 4 and 5. The answer to the defendants’ points.
    6. The parts of the charge in brackets.
    7. Admitting Heath’s deposition.

      G. A. Jenks (with whom were Jenks & Clark), for plaintiffs in error.
    — Possession not having been taken under the verdict in ejectment, trespass cannot be maintained: Caldwell v. Walters, 10 Harris 380. Mentioning the eastern line of the warrant was a description of the boundary, and Mrs. Scott could hold to it: Chaplin v. Srodes, 7 Watts 410. Calls for adjoiners control courses, distances and quantity: Petts v. Gaw, 3 Harris 222; Cox v. Couch, 8 Barr 154. A grantor cannot disprove the title he has conveyed: Mclldowney v. Williams, 4 Casey 495.

      A. L. Gordon (with whom was J. Gordon), for defendants in error.
    — Possession follows the title of unseated lands : Mather v. Trinity Church, 3 S. & R. 509 ; Harlan v. Harlan, 3 Harris 515; Cutting timber by an intruder will not give him possession: Rifener v. Bowman, 3 P. E. Smith 319. A tract cannot go beyond its marks to reach calls : Bellas v. Cleaver, 4 Wright 267; Blasdell v. Bissell, 8 Barr 258; Brolaskey v. McLain, 11 P. E. Smith 146.
   The opinion of the court was delivered, November 7th 1870, by

Thompson, C. J.

— The subject-matter of the 1st assignment of error on this record, has long been settled in this Commonwealth, and is not now an open question, namely: that calls in a deed are always liable to be controlled by lines on the ground. I regard this as a rule well nigh, if not entirely, without exception : Younkin v. Cowan, 10 Casey 198; Bellas v. Cleaver, 4 Wright 260; Boynton v. Urian, 5 P. E. Smith T42; Darrah & Carrier v. Bryant, 6 Id. 69, and' Brolaskey v. McLain, 11 Id. 146. These are recent cases, and at hand, but they follow in a long line of precedents from the earliest times in this state. When, therefore, the leaimed judge asserted the doctrine, and applied it to the evidence, he committed no error abstractly, nor in its application to the case. The great question in the case was whether or not an east line had been run and marked as and for the eastern boundary of subdivision No. 7 of tract No. 4019, and whether the defendant’s grantor had purchased by it. That it had been, there is not a doubt. It is proved by Elijah Heath; and the age of the line conclusively proves its existence before or at least contemporaneously with Mrs. Scott’s purchase. It was by this line also that the conveyance was made, for there was no tract line on the ground at that time. The eastern boundary of the tract was actually run between its corners fifteen years thereafter. If therefore a line was on the ground as the east boundary of subdivision No. 7 in 1854 or 1855, it was incontestably not the line of the east boundary of the tract, for, as just said, it was not then run and was 200 perches further east than the eastern boundary of the subdivision. No doubt Mr. Heath thought he was running this eastern boundary on the line of the entire tract. This was a clear mistake, but one which did not in the least injure his grantee or those claiming under her. They got all the land they bargained for, within a slight fraction, and they were offered compensation for the deficiency, but declined receiving it. But even this deficiency was not occasioned by the location of the east line. It was in other lines of the subdivisions. The questions of the running the east line of subdivision No. 7, and where it was, and whether the conveyance by Heath was by it, were properly submitted to the jury, and were found in favor of the plaintiffs below, and this was a substantial finding of the case for them; the trespass sued for being undeniedly between that line and the eastern boundary of the entire tract, the title, to which was in the plaintiffs derived through and from Elliott. There was nothing wrong in any portion of the errors assigned on this part of the case, and this we think disposes of all but the 2d assignment of error.

This error assumes to raise a question of inability on part of the plaintiffs below, to recover, for want of possession at the institution of the suit. The ground is technical, and arises in this wise. Elijah Heath, under whom they claim, it seems, brought ejectment for this land against Jacob Craft, under whom the defendants claim, to September Term 1864. Afterwards the suit was marked to the use of John Heath, to whom the land in controversy had been in the mean time conveyed by Elijah, and it was prosecuted to trial and verdict in December 1862 by the latter. No judgment was entered on this verdict until 1869, long after the plaintiffs had by agreement purchased from John Heath. The plaintiffs in error now claim that this action of trespass cannot be maintained because no habere facias possessionem ever issued to give them legal seisin of what they admitted themselves dispossessed in bringing their ejectment, and which the ejectment also admitted the defendants to be in possession of. The testimony is uncontradicted that actual possession of this land was ever in anybody, taking the line of subdivision No. 7 as excluding it, which the jury have found, consequently a habere facias would have been idle. There was nobody to turn out, and nobody to hinder the plaintiffs from going in. This being so, the constructive possession incident to title still existed, there being no actual possession to challenge it; so that the plaintiffs’ title being unchallenged in this respect, drew the constructive possession of the land to it, and the right to sue was not affected by this technical claim of possession, contradicted as it was by the fact as shown by all the testimony on the point. The case of Caldwell v. Walters, 10 Harris 380, differs much from this. There an actual possession existed, and it was held that an action for mesne profits would not lie, because possession had not been delivered to the plaintiffs in ejectment. But the learned judge, Black, C. J., who delivered the opinion of the court, concedes that a habere facias is not indispensable in all cases, such as where possession is peaceably surrendered without it. There is but little difference between that, and a case where possession was not attempted to be continued after verdict. This, however, was not an action for mesne profits. It was for an independent trespass committed on the land long after the verdict, and after the purchase by the plaintiffs, and-the assessment and payment of the taxes on it by them. There was no error in the ruling of the court on this point.

The judgment is therefore affirmed.


author: Read, J.

text:
    Neil versus Colwell.
    1. A judgment was entered in Jefferson April 1860, a test. fi. fa. issued to Indiana May 1863, and was entered in the prothonotary’s office there; the test, fi. fa. was a lien on the defendant’s land in Indiana for five years from the time of the entry there.
    2. Defendant’s land was sold under a test. vend. ex. in December 1866; the judgment was in full force in Indiana when the land was sold.
    3. A vend. ex. is not a process distinct from the fi. fa., but is a part of it.

      4. Woods v. Colwell, 10 Casey 92, remarked on.
    October 20th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1869, No. 5.
    On the 16th of April 1860, Alexander Colwell obtained judgment in the Court of Common Pleas of Jefferson county against Thomas N. Neil for $1689.62. After a fi. fa. and sale of the defendant’s property in Jefferson county, the plaintiff, on the 8th of May 1863, issued a testatum fi. fa. to Indiana county, which was entered of record there on the 11th of June 1863, and the sheriff levied on the real estate of defendant in that county; the land was condemned June 24th 1863, and the inquisition approved May 11th 1865. A testatum vend. ex. was issued May 13th to the same county, which was filed of record there June 5th 1865. On the 26th of August, one of the associate judges of Indiana county “ enjoined the writ the injunction was dissolved September 16th. On the 23d of September, an alias testatum vend. ex. was issued to Indiana county, finder which the-defendant’s land was sold on the 8th of December 1865 to John A. Colwell and James E. Brown. On the 16th of February 1866, the defendant obtained a rule to show cause why the alias testatum vend. ex. and all the proceedings on it should not be set aside, on the ground that before it issued, the lien of the judgment of the 16th of April 1860 in Jefferson county had expired. The rule was discharged September 14th 1867.

      Discharging the rule was assigned for error, the defendant having removed the proceedings to the Supreme Court.

      S. White, H. W. Weir and Stewart & Clark, for plaintiff in error.
    — Nothing hut reviving a judgment or issuing a scire facias, will continue its lien: Davis v. Ehrman, 8 Harris 258 ; Wood v. Colwell, 10 Casey 92 ; Chahoon v. Hollenbach, 16 S. & R. 486; Bell v. Ingram, 2 Barr 491; Ebright v. Bank, 1 Watts 397.

      Gordon & Brother, for defendant in error.
    — The fi. fa. was issued during the life of the judgment, the vend. ex. being part of it was in time: Riland v. Eckert, ll Harris 215; Christman v. Evans, 18 S. & R. 14; Shaw v. Richards, 2 Miles 103; Lewis v. Smith, 2 S. & R. 142; Cowden v. Brady, 8 Id. 505.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— Judgment was entered in the Common Pleas of Jefferson county, in a scire facias sur recognisance, in favor of Alexander Colwell, against Thomas N. Neil, on the 16th April 1860, for $1689.62. On this judgment on the 25th May 1860, a fi. fa. was issued to September Term 1860, on which real estate was levied, inquisition waived and property sold to J. O. Kennedy for the sum of $90. On the 8th May 1863 a testatum fi. fa. to September 1863, was issued to the sheriff of Indiana county, who delivered the same to the prothonotary of Indiana county, who forthwith entered the same of record, on the proper dockets, and thereupon re-delivered the said writs to the said sheriff, to be by him executed. The said testatum writ of fieri facias became a lien upon the real estate of the defendant during five years from the date of such entry. By virtue of this writ the sheriff levied upon'the interest of defendant, in a certain tract of land in Indiana county, upon which inquisition was held and property condemned.

A testatum venditioni exponas to September 1885 was issued to the sheriff of Indiana county, which was stayed by an injunction issued by an associate judge of Jefferson county, which was dissolved on the 15th September 1865, and an alias venditioni was issued on the 23d of the same month to the said sheriff, who sold on the 8th December 1865, the land levied on to John A. Col-well and James E. Brown for $500: on the 15th February 1866; a rule was granted to show cause why this writ, and all proceedings under it, should not be set aside, which on the 15th September 1867 was discharged by the court.

The present writ of error is to this last action of the court, and the error assigned is the discharge of the rule by the court.

During all the proceedings under the testatum fi. fa., and the several writs of venditioni exponas issued under it, the testatum fi. fa. was a lien on all the lands of the defendant in Indiana county, and the original judgment was in full force when the property was levied upon, and condemned in Indiana county. When the alias testatum vend. exp. was issued and executed, the lien was in full force and vigor in Indiana county, and the parties to the original proceedings and judgments were in full life, and the case of Wood’s Executors v. Colwell, 10 Casey 92, has therefore no application to the present question.

“ The venditioni is not a process distinct from the fi. fa., but a part of itHughes v. Rees, 4 Meeson & Welsby 468: and refers back to the fi. fa., which is conceded to be entirely regular.

The court were therefore right in discharging the rule.

Judgment affirmed.


text:
    Armstrong County versus Clarion County.
    1. A traveller passing over a bridge which was maintainable by two counties was injured by its breaking down. He recovered damages in an action for negligence against one of the counties. Held, that county might recover contribution from the other.
    2. The rule that there cannot be contribution between -wrongdoers is confined to cases where the plaintiff must be presumed to know that he was doing an unlawful act.
    3. A promise to indemnify against an act not known at the time to be unlawful, is valid.
    4. Contribution is fixed on general principles of natural justice and does not spring from contract.
    October 21st 1870.
    Before Thompson, O. J., Read, Agnew, Siiarswood and Williams, JJ.
    Error to the Court of Common Pleas of Clarion county: No. 88, to October and November Term 1870.
    This was an action of assumpsit by The County of Armstrong against The County of Clarion, commenced October 80th 1869, for contribution under the following circumstances:— .
    At Rockport Mills there is a public bridge over Red Bank creek which is the dividing line between Armstrong county and Clarion county, the bridge is consequently to be maintained at the joint expense of the two counties. In 1860 the commissioners of both counties received notice that the bridge was out of repair; they made a joint examination of it, and directed some slight repairs which were done at the joint expense of the two counties. Not long afterwards the bridge broke down whilst John A. Humphrey was crossing with a two-horse wagon and severely injured him. To March Term 1862, he brought an action for negligence against the county of Armstrong. The commissioners of that county gave notice of the bringing of the suit to the commissioners of Clarion, and called on them to assist in its defence, which was not done. A verdict was recovered December 16th 1868 against Armstrong for $1100, which, with the costs amounting in all to $1597.31, Armstrong county paid. The commissioners of Clarion were called on to contribute their proportion to this payment, which they declined to do.
    On the trial before Campbell, P. J., these facts were proved or admitted, when the court, on motion of the defendant, directed a nonsuit on the ground that there was no contribution between wrongdoers. This was assigned for error by the plaintiffs, on the removal of the case to the Supreme Court.

      F. Mechling, G. W. Lathey and D. Barclay, for plaintiff in error.
    — Contribution does not spring from contract but general principles of justice: 1 Story’s Eq. Jur. § 463 note; 1 Pars, on Cont. 31. Those who are bound to repair must answer for neglect: Erie v. Schwingle, 10 Harris 388. Contribution may be recovered where the act is not clearly illegal and was done bond; fide: 1 Pars, on Cont. 37 note 10; Adamson v. Jarvis, 4 Bing. 66; Humphrey v. Armstrong, 6 P. F. Smith 204 ; Woriy v. Batte, 2 C. & P. 417; Horbach v. Elder, 6 Harris 33.

      W. L. Corbett, for defendant in error.
    — Contribution cannot be recovered by one tort-feasor from another: Merriweather v. Nixon, 8 Term it. 186; Betts v. Gibbins, 2 Ad. & Ellis 74; N. Penna. Railroad v. Mahoney, 7 P. F. Smith 189; Beck v. Ellis, 2 Johns. Ch. R. 336.
   The opinion of the court was delivered, January 3d 1870, by

Read, J.

— The bridge across Red Bank creek, between the counties of Armstrong and Clarion, at the place known as the Rockport Mills, was a county bridge, maintained and kept in repair at the joint and equal charge of both counties. Whilst John A. Humphreys was crossing the bridge it fell and he was severely injured; he brought suit for damages against the county of Armstrong; and on the trial, under the charge of the court, there was a verdict for defendant. This was reversed on writ of error (6 P.. F. Smith 204); and upon a second trial there was a verdict for the plaintiff for $1100 damages, on which judgment was entered. This judgment, with interest and costs, was paid by Armstrong county, and the present suit is to recover contribution from Clarion county. On the trial the learned judge nonsuited the plaintiff on the ground that one of two joint wrongdoers cannot have contribution from the other.

The commissioners of the two counties had examined the bridge in the summer and ordered some repair’s which were made. There can be little doubt that morally Clarion county was bound to pay one-half of the sum recovered from and paid by Armstrong county; and the question is, does not the law make the moral obligation a legal one ? Merriweather v. Nixon, 8 Term R. 186, the leading case on the subject, was of a joint injury to real estate, and for the joint conversion of personal property, being machinery in a mill. In Colburn v. Patmore, 1 Cr. M. & R. 73, the proprietor of a newspaper who, for a libel published in it, .was subjected to a criminal information, convicted and fined, sought to recover from his editor who was the author of the libel, the expenses which he had incurred by his misfeasance ; Lord Lyndhurst said: “ I know of no case in which a person who has committed an act declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime.”

So in Arnold v. Clifford, 2 Sumner 238, it was held, a promise to indemnify the publisher of a libel is void. “No one,” said Judge Story, “ ever imagined that a promise to pay for the poisoning of another was capable of being enforced in a court of justice.”

In Miller v. Fenton, 11 Paige 18, the wrongdoers were two of the officers of a bank, who had fraudulently abstracted its funds, and of course there could be no contribution between criminals. In the case of The Attorney-General v. Wilson, 4 Jurist 1174, cited in the above case by the chancellor, and also reported in 1 Craig & Phillips 1, where it was contended that all the persons charged with the breach of trust should be made parties, Lord Cottenham said: “ In cases of this kind where the liability arises from the wrongful act of the parties, each is liable for all the consequences, and there is no contribution between them, and each case is distinct, depending upon the -evidence against each party. It is therefore not necessary to make all parties who may more or-less have joined in the act complained of.” Seddon v. Connell, 10 Simons 81, is to the same effect.

In Story on Partnership, § 220, after speaking of the general rule that there is no contribution between joint wrongdoers, the author says: “ But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known meditated wrong, and not where the party is acting under the supposition of the entire innocence and propriety of the act, and the tort is merely one by construction, or inference of law. In the latter case, although not in the former, there may be and properly is, a contribution allowed by law for such payments and expenses between constructive wrongdoers, whether partners or not:” The case of Adamson v. Jarvis, cited by the learned commentators, is in 4 Bing. 66, in which Lord Chief Justice Best, after noticing Merriweather v. Nixon, says : “ The case of Philips v. Biggs, Hardress 164” (which was on the equity side of the Exchequer), “was never decided; hut the Court of Chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors.'”

“ From the inclination of the court in this last case, and from the concluding part of Lord Kenyon’s judgment in Merriweather v. Nixon, and from reason, justice and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known he was doing an unlawful act.”

In Betts v. Gibbins, 2 Ad. & E. 57, Lord Denman said, “ The case of Merriweather v. Nixon, 8 T. R. 186, seems to me to have been strained beyond what the decision will bear — the present case is an exception to the general rule. The general rule is, that between wrongdoers there is neither indemnity nor contribution. The exception is where the act is not clearly illegal in itself, and Merriweather v. Nixon, 8 T. R. 186, was only a refusal of a rule nisi.”

“ In Adamson v. Jarvis, 4 Bing. 66, we have the observations of a learned person familiar with commercial law.”

A promise to indemnify against an act not known to the promissee at the time to be unlawful is valid: Coventry v. Barton, 17 Johns. 142; Stone v. Hooker, 9 Cow. 154.

In Pearson v. Skelton, 1 Mee. & Wels. 504, where one stagecoach proprietor had been sued for the negligence of a driver, and damages had been recovered against him, which he had paid, and he sought contribution from another of the proprietors, it was held that the rule there, no contribution between joint tortfeasors, does not apply to a case where the party seeking contribution was a tort-feasor only by inference of law, but is confined te cases where it must be presumed that the party knew he was committing an unlawful act.

The same doctrine was maintained in Wooley v. Batte, 2 C. & P. 417.

These cases have been followed in this court in Horbach’s Administrators v. Elder, 6 Harris 33. “ Here,” said Judge Coulter, “ the plaintiff and defendant are in equali jure. The plaintiff has exclusively borne the burden which ought to have been shared by the defendant, who therefore ought to contribute his share.”

“ Contribution,”, says Lord Chief Baron Eyre, in Dering v. Earl of Winchelsea, 1 Cox 318, “ is bottomed and fixed on general principles of natural justice, and does not spring from contract.”

These principles rule the case before us. The parties plaintiff and defendant are two municipal corporations, jointly bound to keep this bridge' in repair. These bodies can act only by their legally constituted agents, their commissioners, who examine the structure and order repair which is done. They erred in judgment, and both were liable for the consequences of that error, and one having paid the whole of the damages is entitled to contribution from the other.

Judgment reversed, and venire de novo awarded.


author: Sharswood, J.

text:
    Evans versus Erie County.
    1. The Commonwealth by Act of Assembly granted to the borough of Erie the “ 3d section” of certain lands, reserving 100 acres to be selected by commissioners for a poor-house for Erie county. The commissioners located the 100 acres “at the south-west corner” of section 3, leaving a strip between its west line and the west line of the section. The strip belonged to the borough of Erie.
    2. Evans was in possession of the strip at the passage of the act; the Statute of Limitations began to run in his favor against Erie from that time.
    3. The statute runs against a county or other municipal corporation.
    4. Nullum tempus oceurrit reipublicce, applies to the sovereign only.
    October 21st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: No. 10, to October and November Term 1870.
    This was an action of ejectment, brought October 27th 1864, by the County of Erie against James Evans, for a piece of land “ 131.6 perches in length by 60 feet in width, situated between the west line of the 100 acres selected hy the commissioners of the county of Erie and the west line of the third section of the town of Erie, and in the said third section of the town of Erie.”
    The plaintiffs claimed that the strip was part of the tract selected by the commissioners for the use of the poor-house.
    By the 13th section of the Act of April 3d 1792 (3 Smith L. 74), there was reserved for the use of the Commonwealth, “ at Presque Isle, * * * a tract extending 8 miles along the shore of the lake and 3 miles in breadth.” By the Act of 18th of April 1795 (Id. 234), the governor was authorized (to appoint commissioners to survey “within” the above tract, 1600 acres for town-lots and 3400 for out-lots, with streets, lanes and alleys for the town of Erie, and “reservations for public uses.” The commissioners laid out the town of Erie and the “reserve” tract adjoining it on the west. The town was laid out in lots and streets in three sections, numbered 1, 2 and 3, beginning from the east, the west line of No. 3 being coincident with the east line of the “ reserve” tract.
    On the 20th of October 1815, a patent for the reserve tract was issued to Conrad Brown; the tract was described as No. 16, bounded on the east by the out-lots of the town of Erie.
    The following act was passed the 8th of April 1833, Pamph. L. 243:—

      “ The tract of land now owned hy the Commonwealth of Pennsylvania, on the hay of Presque Isle, on Lake Erie, and known as the third section of in and out lots of the town of Erie, the streets of which are hereby vacated, be and the same is hereby granted to the borough of Erie, to construct a canal-basin in the bay of Presque Isle, opposite the borough of Erie; and the burgess and town council of the said borough for the time being shall, as soon as conveniently may be, lay out the said third section in lots or tracts as to them may seem best, having regard to the sale and settlement of said section, and expose the same separately to the highest and best bidder or bidders, and make to the purchaser or purchasers of said lots or tracts a good and sufficient deed in fee simple, and the said burgess and town council shall apply the money arising therefrom towards erecting the canal-basin aforesaid: Provided that one hundred acres of the said land be reserved for the use of a poor-house for the county of Erie, to be selected by those persons appointed by the commissioners of Erie county for that purpose.”
    The commissioners selected and laid out 100 acres in the southwest corner of the 3d section of the town of Erie for the use of a poor-house, and a poor-house was erected on it. On the 12th of November 1845, Conrad Brown conveyed to Catharine Evans, the wife of the defendant, the reserve tract No. 16, “ bounded on the east by the out-lots of the town of Erie.”
    On the 21st of April 1864, the defendant took out a warrant for the strip in dispute, paid the purchase-money and had it surveyed.
    Another act was passed May 2d 1864, Pamph. L. 680, which recited that the commissioners appointed under the Act of 1833 in locating the 100 acres left a strip 131.6 perches in length by 60 feet in width between the west line of the land selected and the west line of said 3d section,” and that “title to the said piece of land is in the Commonwealth,” and enacted that “ all the title and interest of the Commonwealth, to and in the piece or strip of land, 131 perches and 6 lOths of a perch in length by 60 feet in width, situated between the west line of the 100 acres selected by the persons appointed by the commissioners of the county of Erie, and the west line of the 3d section of the town of Erie, be and the same are hereby transferred to the county of Erie, to form a part of the poor-house tract of said county; provided that nothing contained in the act shall be held to interfere with vested rights.”
    On the 23d of May 1864, a patent issued to the defendant for the strip in dispute.
    Another act was passed May Bd 1866, Pamph. L. 1072, as follows:—
    “ The patent heretofore issued to James Evans, for a strip of land, 60 feet wide on the east side of Erie reserve tract, No. 16, which strip has been claimed and occupied by said Evans, and those under whom he claims, for over forty years as a part of his farm in Millcreek township, Erie county, is hereby ratified and confirmed, and shall have the same force and effect as a patent issued for land subject to settlement, improvement and sale.”
    On the trial, December 4th 1867, the parties respectively gave in evidence these facts, &c.
    Samuel Low testified for the plaintiff that twelve years previously he had run a line north of this piece, when he came to Evans’s land he was about 60 feet west of his fence, and found another line 60 feet east; this line was the line of Evans’s fence produced north.
    W. Benson, who ran the survey for the directors of the poor, found north of the poor-house tract, a fence 60 feet east from the east line as defendant claimed.
    Thomas Willis testified that in 1825 Brown (defendant’s predecessor) had a field cleared and a fence on the west side of the poor-house tract as then understood: “ there was the same fence then that there is now, the fence is about 6 feet on Evans, giving the poor-house 100 acres.” Section 8 was not then cleared.

      G. Sherwin testified that by a measurement which he made, the section line was 1.1 perches east of defendant’s fence * * * same field occupied by Brown and Evans ever since; the fence has never been moved.”
    The defendant’s points with their answers were:—
    “ 1. The Act of April 8th 1833 granting 3d section of the town of Erie to the borough of Erie, divested the interest of the commonwealth in said section and vested right or title to said section in the borough of Erie; and the Act of May 2d 1864 did not give any title to plaintiff for the land in dispute; therefore the verdict should be for defendant.”
    “ To the 1st point we reply, that the Act of April 8th 1833 did not give the land in dispute to the borough of Erie. If it is part of section 3 it was reserved for the use of the poor of Erie county.” “ 2. The defendant, by over forty years’ peaceable and adverse possession, by paying the Commonwealth for the land, and by his patent for said land, had vested rights in said land at the passage of the Act of May 2d 1864, and therefore plaintiff cannot recover, for that would interfere with such rights.”
    “ 4. The defendant having bad continuous possession for over thirty years, the statutory presumption is, that the Commonwealth had parted with her title as between the parties, and therefore plaintiff cannot recover.

      “ 5. The Act of 1833 granted the 3d section to the borough of Erie, and the defendant and Conrad Brown, under whom he claims, have had possession (continuous and adverse) of the land for over forty years, which would give him a good title as against the borough of JErie, and the state cannot divest defendant of the benefit of his title by possession, by taking the land from the borough of Erie and giving it to plaintiff, and therefore plaintiff cannot recover.”
    “We answer the defendant’s 2d, 4th and 5th points by saying there was no sufficient evidence given in the case to raise the question there propounded.”
    “ 3. If the court refuse to charge as requested in the 1st and 2d points, then the court is requested to charge that the Act of May 3d 1866 legalizes and perfects the title of defendant to all lands alleged by plaintiff to be lying between his land (reserve tract) and the poor-house farm, and therefore the plaintiff cannot recover.”
    Answer: “We regard the special legislation on both sides respecting this land as having originated in mistake of the facts, and therefore valueless in settling the question of title, and this answers the defendant’s 3d point in the negative.”
    The court also charged:—
    * * * “ If you believe the evidence of the subject as to the location of the west line of section 3 of the town of Erie, there can be no vacant land between the defendant’s out-lot or reserve tract and the west line of section 3 of the Erie town plot subject to settlement.
    “ The land in dispute must, therefore, be part of section 3 in the original town plot.” * * *
    The verdict was for the plaintiff.
    The defendant moved in arrest of judgment, “ because there is no, sufficient description on record of the land claimed b^y the plaintiff.” The motion was denied and judgment entered on the verdict.
    The defendant took out a writ of error and assigned for error the answers to his points, the part of charge given, and overruling the motion in arrest of judgment.

      Gunnison and McCreary, for plaintiff in error.
    — Whether the land in dispute was part of the poor-house tract, should have been left to the jury : Garrett v. Gonter, 6 Wright 143; Bank of Pitts-burg v. Whitehead, 10 Watts 397. Inferences from facts are for the jury: Wenrick v. Heffner, 2 Wright 207; Mather v. Clark, 1 Watts 491. The marks on the ground constitute the boundary r. Hall v. Tanner, 4 Barr 244. The Statute of Limitations operates against a grantee of the Commonwealth although it may be a county: McCombs v. Rowan, 9 P. F. Smith 414; Rung v. Sho.enberger, 2. Watts 23; Susquehanna Co. v. Deans, 9 Casey 131; Glover v. Wilson, 6 Barr 290; Cincinnati v. Presbyterian Church', 8 Ohio R. 298; Same v. Evans, 5 Ohio State R. 594. After thirty .years’ possession the title is presumed to be out of the Commonwealth: Act of April 27th 1855, § 6, Pamph. L. 369j Purd. 654, pl. 10. The description in the writ was too indefinite : Hunt v. McFarland, 2 Wright 69.

      J. H. Walker, for defendant in error.
    — Reserved lands are not open to settlement: Hall v. Tanner, 4 Barr 246; Thompson v. Johnson, 6 Binney 68; Sergeant’s Land Laws 153, 169.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— This was an action of ejectment to recover possession of a tract or strip of land described by the plaintiffs in their writ as “ one hundred and thirty-one perches and six-tenths of a perch in length by sixty feet in width, situated between the west line of the one hundred acres selected by the commissioners of the county of Erie and the west line of the third section of the town of Erie, and in the said third section of the town of Erie.”

The plaintiffs gave in evidence an Act of Assembly, passed April 8th 1833, Pamph. L. 243, by which the legislature granted to the borough of Erie “ the tract of land now owned by the Commonwealth of Pennsylvania, on the bay of Presque Isle on Lake Erie, and known as the third section of in and out lots of the town of Erie,” with a proviso “that one hundred acres of the said land be reserved for the use of a poor-house for the county of Erie, to be selected by three persons appointed by the commissioners of Erie county for that purpose.” They followed this by the report of the viewers appointed by the commissioners, dated May 10th 1833, by which it appeared that they had selected one hundred acres in the south-west portion of the said third section of the town of Erie. They then gave in evidence an Act of Assembly, passed May 2d 1864, Pamph. L. 680, entitled “ An Act to grant to the county of Erie the interest of the Commonwealth in a strip of land on the west side of the tract formerly granted to said county, for the use of the poor of said county.” After reciting the provisions of the Act of April 8th 1833, it goes on to state in the preamble “that the persons appointed selected the one hundred acres out of the south-west portion of the said third section; but in locating the same left a strip of land one hundred and thirty-one perches and six-tenths o'f a perch in length by sixty feet in width, between the west line of the land selected and the west line of the said third section.” It proceeds to grant to the county of Erie “ all the title and interest of the Commonwealth to the said strip of land as before described,” to form a part of the poor-house tract of said county: Provided, that nothing contained in this act shall be held to interfere with vested rights.” The plaintiffs then proceeded to give evidence by the testimony of surveyors and others, that the west line of the third section protracted in a straight line northward, would take in the quantity of land described in the writ in the possession of the defendant.

Upon the face of this title thus presented, it is almost too plain for argument that the plaintiffs had made out no case. The Act of 1833 had granted to the borough of Erie the entire third section, except the one hundred acres selected by the viewers appointed by the commissioners of the county, and if, as the preamble to the Act of 1864 recites, the viewers left the strip of land in controversy between the west line of the land selected and the west line of the said third section, the Commonwealth had no title or interest which the législature could grant to the plaintiffs without the consent of the borough of Erie. It would have been so even without the saving clause in the Act of 1864, that nothing therein should be held to interfere with vested rights. There was a perfect outstanding title in the borough of Erie, which was a complete bar to the plaintiffs’ recovery upon their own showing. There was error, therefore, in the refusal of the court to affirm the defendant’s 1st point, and in saying in reply to it that the Act of April 8th 1833 did not give the land in dispute to the borough of Erie.

But the learned judge below adopted a different view of the case. In his own language in his answer to the defendant’s 3d point, he regarded “ the special legislation on both sides respecting this land as having originated in mistake of the facts, and therefore valueless in settling the question of title.” He dismissed therefore from consideration the grant contained in the Act of 1864 as inoperative, and, as we have seen, he was clearly right in so doing. The mistake, according to his opinion, was in supposing that there was any strip of land left by the viewers between the west line of the one hundred acres and the west line of -the section. He states in his general charge that the viewers “ selected one hundred acres in the south-west corner of said third section of the town of Erie as originally located. So their report and draft, filed and approved, distinctly state, and so all the world have understood it from that day to this, and subsequent maps and diagrams are made up on this basis.” We have not been furnished on our paper-books with the report and draft of the viewers, nor with the subsequent maps and diagrams to which the learned judge refers. But as no exception was taken, and no error has been assigned to this part of the charge, we will assume all this to be correct in point of fact, and sustained by the evidence in the cause. It makes the plaintiffs’ case no better. If this was as stated by the learned judge, then the west line of the poor-house tract and the west line of the third section were the same line — identical—and there was no strip of land between them. How, then, could the plaintiffs have a verdict for the land described in their writ, between the two lines and in the third section ? There was no such land in existence, and at least without an amendment of the description in the writ, there could be no recovery. How could the sheriff deliver possession of lands between the west line of the poor-house tract and the west line of the third section, if those two lines were one and the same ? The verdict and judgment, unless qualified, follow the description in the writ.

The learned judged considered, and if the facts upon which he relies were in evidence as he states them, he was undoubtedly right, that if the land in dispute is in section three, it belongs to the poor-house tract. The plaintiffs were entitled to recover on their title to the poor-house tract. That they had such title as trustees “for the use of a poor-house for the county of Erie,” we think very clear. The reservation in the Act of 1833 was by necessary implication, if not by express words, a grant of the 100 acres to the county of Erie for the use expressed. Who was to erect the poor-house, and manage and control it when erected ? Surely the county through its commissioners. The title to the Act of 1864 so states it and properly states it — “ the tract formerly granted to said county for the use of the poor of said county.” The learned judge permitted the plaintiffs to recover on this title doubtless as trustees 'of the charity. Yet he considered that the defendant was not entitled to avail himself of the bar of the Statute of Limitations, because, as he instructed the jury, “it belonged to the Commonwealth, and against her no length of possession would give title.” We think that the learned judge fell into manifest error in refusing to affirm the defendant’s 2d point as to the Statute of Limitations, and by saying that there was no sufficient evidence given in the case to raise the question there propounded. The title of the Commonwealth to the poorhouse tract was divested by the Act of 1833 and vested in the plaintiffs. As against them, the running of the statute commenced on the day of the passage of that act, if the defendant was then in peaceable and adverse possession of the land in controversy, and so continued until the commencement of the action. This was a period of more than thirty-one years. That the Statute of Limitations runs against a county or other municipal corporation, we think cannot be doubted. The prerogative is that of the sovereign alone: Nullum tempus oecurrit reipubliece. Her grantees, though artificial bodies created by her, are in the same category with natural persons: Glover v. Wilson, 6 Barr 290; City of Cincinnati v. Evans, 5 Ohio St. Rep. 594. That the defendant had adverse and peaceable possession, so as to constitute a bar if he could set it up against the plaintiffs, was an undisputed and indisputable fact in the cause. It was shown by the plaintiffs’ own testimony. Thomas .Willis, a witness produced by them, testified: “ Brown (under whom defendant claimed) had a field cleared, and a fence on tbe west side of the poor tract as then understood” (in 1825). “ There was the same fence then that is there now;” “same field occupied by Brown and Evans ever since; the fence has never been moved.” There was no other evidence upon the subject in the case, as far as appears upon the paper-books. Upon this showing by the plaintiffs themselves the defendant below was entitled to a positive instruction from the court to the jury in his favor.

We do not deem it necessary to consider particularly the remaining assignments of error. That the jury were misled by the charge of the court we think already sufficiently shown. The question of the statutory presumption that the title was out of the Commonwealth did not arise. As we have seen, her title was divested by an actual grant. Although the description in the writ was undoubtedly rather loose, yet a protraction of the line marked on the ground south of the land in controversy in a straight direction to the north-west corner of section third, would have enabled the sheriff to give possession of all the land lying eastward of it to the plaintiffs.

Judgment reversed.


author: Agnew, J.

text:
    Brown versus Hays.
    1. By tbe erection of Polk township in 1851,• all of warrant 4023 containing 1026 acres except 16 acres, remained in Polk, the 16 acres were thrown into Heath township. Up to 1859, it was assessed in Polk and taxes paid in Polk; it was afterwards assessed as 4023 in the warrantee name as 726 acres; 300 acres were assessed in the same name and number in Heath, the change was not made by the board of revision and was without the knowledge of the owner, who paid all the taxes demanded for 4023 as in Polk. The 300 acres were sold for taxes as assessed in Heath. Held, that the purchaser took no title.
    2. The return of the assessors fixing the identity of a tract and its liability to taxation is binding on the commissioners.
    3. The assessment in Polk being for 4023 and taxes paid accordingly, was a discharge of the tract although assessed as 726 acres.
    4. The assessors of Polk had. no authority to divide the tract in that township into separate parcels.
    5. Assessors must assess and return lands in single tracts according to their ownership.
    6. An assessor may follow the division made by the owner.
    7. Assessing a wrong number of acres would not of itself be notice to the owner that but part of the tract was assessed.
    8. The number of acres is simply the description and does not overturn the number of the tract and the name of the warrantee.
    9. Presumptions of law exist only when public policy or the ends of justice demand it.
    10. Infiutione juris, semper existet esquitas, applied.
    October 21st 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Jefferson county: No. 21, to October and November Term 1871.
    On the 31st of October 1867, James H. Hays brought .an action of ejectment against Plenry Brown 'for 312 6-10 acres of land in Polk township.
    The trial was December 15th 1869, before Campbell, P. J.
    The plaintiff claimed the land in controversy as part of warrant No. 4023, dated August 30th 1793, to John Nicholson for 1000 acres and survey September 31st for 1026 acres, 70 perches, returned and accepted August 14th 1794. The title to this warrant was vested in the plaintiff: he resided in Pittsburg.
    The defendant claimed the land in controversy, which was part of No. 4023, under a tax sale of 300 acres assessed in Heath township. Polk township was erected out of Heath and Warsaw townships in 1851.
    The defendant gave in evidence the assessment for Heath township in 1859 of No. 4023, 300 acres of land, in the name of John Nicholson; treasurer’s sale June 11th and deed to county commissioners November 2d 1860; deed, commissioners to Mary A. Hastings and Gr. A. Jenks March 7th 1866; deeds September 11th and December 1st 1866, from Hasting and Jenks to defendant. Hastings and Jenks had the 300 acres surveyed partly in Heath and partly in Polk township, 10 acres in Heath township were included in this survey; 16 acres of No. 4023 had been thrown into Heath township by the division.
    The plaintiff, in rebuttal, gave evidence of assessments of No. 4023 in Polk township, in the name of Nicholson, as 1026 acres from 1853 to 1858 inclusive, as 726 acres from 1859 to 1861 inclusive, and as 1026 acres from 1862 to 1865 inclusive. In 1866 it was entered in the assessment book, first as 1026; this was erased and 726 written over it. He gave evidence from the land book; — tax in Polk township on No. 4023 paid 1754 and 1855 by J. B. Evans for plaintiff, — 1856 and 1857 by Paul Darling for plaintiff, — 1858 and 1859 as 1026 and 726 acres paid by Darling, and 300 acres sold to the county, — 1860 and 1861 paid by plaintiff 726 acres, — 1862 and 1863 as 1026 paid by Darling. Plaintiff gave evidence that he had employed T. K. Ditch and Darling to pay the taxes, that they paid, as they believed, all the taxes assessed against plaintiff’s land in Jefferson county. Darling went to the treasurer’s office to pay plaintiff’s taxes, they got the land book, referred to the Nicholson warrant No. 4023, the treasurer made a statement from the book, and Darling paid the taxes according to the bill; he paid all the treasurer demanded. Witness saw nothing on the land book of an entry of 300 acres. Once plaintiff told witness that he did not think some of this land was worth paying taxes for and talked of throwing some out.
    The treasurer, H. Hoch, testified that in 1860 Darling came to pay him taxes for Hays, he inquired only for taxes in Polk township ; witness did not then know of the 300 acres. In 1858 the assessment was for 1026 acres, in 1860 it was for 726 acres, the commissioners made the change.
    Joseph Henderson, clerk of the commissioners, testified for defendant: the entries of assessment were made by him, by order of the commissioners; they were generally made with the assessors and commissioners. “ I don’t know that there was any board of revision about it; the commissioners made the changes upon the representations of the assessors or some one in whom they had confidence; these changes were made by the assessor or some one else, but I don’t mind of a "regular meeting for revision and making changes; we did it when they thought it was right. The changes are usually made on the representations of the owner, agent or assessor, but not always.”
    The plaintiff's points and their answers were—
    “ 1. If the jury believe from the evidence that James H. Hays, by his agent, went to the treasurer’s office and inquired of the treasurer for the amount of his taxes on the tract of land in controversy among others, and paid the amount demanded of him by the treasurer, whether that were the full amount or not, his land would be discharged from liability, the sale of all or any part thereof would be void, and the verdict should be for the plaintiff.”
    “ We answer plaintiff’s first point in the affirmative, unless the' assessment of 300 of his tract had been returned in Heath township with his knowledge or authority.”
    “ 2. The assessor of Polk township was the proper officer to assess the tract in controversy, and having done so, all interference therewith by the assessor of Heath township or the commissioners was illegal and void, and the assessment of a part of the tract in Heath township, and the sale thereon was void, and such sale conferred no title on the purchaser.”
    Answer: “ If the jury find the facts as alleged in this point, we answer it in the affirmative.”
    “ 3. Hays, the plaintiff, cannot be compromised by the mistake or error of the taxing officers. Having returned the full amount contained in this tract, and having paid all that the treasurer required from him, his land was thereby discharged from the demands of the public, and nothing was left on which to- found a sale for any part of it.”
    “We answer this point, if the commissioners erroneously assessed 300 acres of his tract No. 4023 in Heath township when it was not there, and this without his consent or knowledge, and he paid all the taxes on the tract assessed in Polk township, and all that he knew of against it, and was misled or failed to pay by the mistake of the county officers, he would not lose his title by their, default, and this point is also answered substantially in the affirmative.”
    The defendant’s points and their answers were—
    “ 1. In the absence of testimony the presumption is that the plaintiff, James H. Hays, returned the land in dispute to the assessors, and that the assessments as made were done by his order.”
    “We answer defendant’s first point in the affirmative, in the absence of evidence, but under the evidence, that the change was made by the clerk of the commissioners under their directions, and it not appearing that the plaintiff was present, and that he resided in Pittsburg, would, if believed, make the presumption but slight if it would avail at all.”
    “ 2. A general offer to pay the taxes of James H. Hays in Polh township, without specifying the location or quantity of the land to be paid for, as proven by Paul Darling and Henry Hoch, would not avoid the defendant’s title in this case.”
    “ If the plaintiff paid all that was demanded of him; if he described the tract correctly, if an erroneous assessment of a part of it had been made without his knowledge or consent by the county officers, a payment in good faith of all the taxes claimed against it by the treasurer would discharge the whole tract.”
    “ 3. Unless the jury find that the taxes of the year 1859 were actually paid on the land claimed by the defendant before the treasurer’s sale of the year 1860, their verdict should be for the defendant.”
    “ We decline to answer this point as requested.”
    The court further charged :—
    “ If the plaintiff owned 300 acres of land in Polk township and had no other land in the county, and it was returned as 300 acres in Heath township, the number of the warrant and the name of the warrantee being stated correctly, a sale of such tract by the treasurer would confer a good title on the purchaser. The misdescription or misnomer of the township would be only an irregularity and would not affect the validity of the sale. [But if the plaintiff for a number of years had been and was the owner of Nicholson warrant No. 4023 in Polk township, and had it returned an entire tract, 1026 acres, and paid the taxes on it, and in 1859 it was returned by the assessor of that township in the same way, and the same year the assessor of Heath township, without the knowledge and consent of the owner, returned 300 of that tract as situated in his township, and if after the return had been made and the assessment made out, he, or he and the commissioners, marked the Polk township return 726 acres without changing the valuation or tax, and a tax sale was made of the 300 as returned in Heath township, it would confer no title on the purchaser.] If the taxes were paid on the tract as returned in Polk township, it would be a payment of all the taxes on the tract, and the tax on the 800 would be a double assessment, and a sale of it would be void. The land returned in Polk township was correct, and the land was all in that township but á few acres, and they had not the right to divide the tract and assess it in separate tracts so as to mislead the owner, and such division, without his consent or knowledge, not rendered necessary by township lines, is wrong, and calculated to deceive.”
    The verdict was for the plaintiff.
    The defendant took out a writ of error, and assigned for error the answers to the points, and the part of the charge in brackets.

      G. A. Jenks (with whom were Jenks & Clark), for plaintiff in error.
    — The assessment of land in the wrong township is irregular merely, not void: Stewart-v. Shinefelt, 18 S. & R. 360; Miller v. Hale, 2 Oasey 435; Montgomery v. Meredith, 5 Harris 47 ; Act of March 13th 1815, § 4, 6 Sm. L. 301, Purd. 995, pi. 35. There being no evidence to the contrary the presumption is that the plaintiff was cognisant of the alteration: Clark v. Dugan, 2 Jones 91. ' The plaintiff is barred by the limitation of Act of April 3d 1804, § 3, 4 Sm. L. 202, Purd. 995, pi. 36; Laird v. Hiester, 12 Harris 464; Purd v. Patterson, 10 Id. 223; Eaird v. Cahoon, 5 W. & S. 540.

      A. L. Gordon (with whom was I. Gordon), for defendant in error.
    — Paying all that was demanded by the treasurer was sufficient: Laird v. Hiester, Baird v. Cahoon, supra; Buff v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 315; Deitrick v. Mason, 7 Id. 40. As to distinction between void and irregular sales, he cited Morton v. Harris, 9 Watts 324; Stewart v. Trevor, 6 P. F. Smith 374; McReynolds v. Longenberger, 7 Id. 13. This sale, being void, is not within the Act of 1804, which protects against irregularity only.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— This case has leading features which, being determined, will render it unnecessary to consider the assignments of error in detail. The first and most important fact which, to a great extent, rules the case is, that lot No. 4023 of 1026 acres is one tract of land, and belongs to a single ownership. It all lies in Polk township, except an insignificant parcel caused by a slight deviation from the northern boundary of the tract in running the line of Polk township, leaving 16 acres in a narrow triangle lying within the township of Heath. Until 1859 it had all been assessed and taxed in Polk township, and Hays, the plaintiff, had paid the taxes accordingly. In 1359 the assessment was returned originally as 1026 acres in Polk township; but by some action of the county commissioners not clearly explained, the assessment had been altered to 726 acres in that township. In the same year the duplicate and supervisors’ return for Heath township exhibits an assessment of 300 acres of No. 4023 in Heath township. It was on this return the treasurer’s sale took place in 1860, under which the defendants claimed. Joseph Henderson, the clerk of the commissioners, is unable to state at whose instance the change from 1026 to 726 acres in Polk township was made — all he can say is, he thinks it was on the representation of the assessor, or some one else in whom the commissioners had confidence. The strong probability is, it was caused by the incorrect, indeed false assessment made for Heath township ; and unless it was done by way of revision by the board of assessors it was irregular. If the testimony of Henderson, the clerk, proves anything, it is that this alteration in the assessment of 4023 in Polk township was not done at the instance of the board of revision; for he “ don’t know (he says) that there was any board of revision about it.” The 2d section of the Act of 3d April 1804 directs all unseated lands “ to be valued and appraised as other property; and both the 8th section of the Act of 1799 (3 Smith’s Laws 395), and the 2d and 4th sections of the revised Act of 15th April 1834 commit to the proper assessor the duty of taking the account, and making the return and valuation of the taxable property within his township. In Respublica v. Deaves, 3 Yeates 465, it was held that under the Act of 1799 the valuation of the assessors is binding on the county commissioners; and by a parity of reason, the return of the tract which fixes its identity and liability to taxation is more so. The 6th section of the Act of 15th April 1834 expressly provides for the assembling of the assessors, on a day to be appointed by the commissioners, to make the returns of the several assessments, when it shall be the duty of the assessors to point out errors, and if the errors be established, the commissioners shall correct the returns accordingly.

This being the legal system for the correction of errors in the assessment, it is an important fact that in consequence of Hays’s residence in a remote part of the state, and his paying the taxes of 1859 by the hand of another no't familiar with his lands, he had no notice of the assessment in Heath township. Having always before paid his taxes for his lands as lying in Polk township, he had no reason to suppose that his land was taxed elsewhere. His payment to the treasurer of all the taxes assessed in Polk township unquestionably operated to discharge all the land lying in that township from sale. The payment was for the taxes of lot No. 4023 in Polk township and not merely for 726 acres of land. The assessment was made by the number of the lot and also in the name of the original warrantee ; indicating clearly the intent to assess the lot as a whole, and as a single ownership. As further evidence that there was no intent to divide the land lying in Polk township, there is no assessment of the remaining 284 acres actually lying in that township. Indeed the assessor of Polk township had no authority to divide the tract or return that portion of the lot lying in Polk township in separate parcels. The acts relating to the assessment of unseated lands are plain, and require the assessor to assess and return the lands in his township in single tracts according to their ownership. He may follow the sale or division of'the tract by’the owner, but he has no power himself to cut up the property of a single owner and return it in parcels. The acts on this subject are collated by Huston, J., in Morton v. Harris, 9 Watts 326, showing conclusively that the entire process of assessment from the beginning to the end contemplates taxation and sale by single tracts following the title of the owner. The same principle governs even in the case of interfering surveys so far that when the assessment is made upon the younger survey, it is made upon the entire tract. See McCoy v. Michew, 7 W. & S. 390 and 391. This being the duty of the assessor, Hays would not be bound to know from the quantity of 726 acres that there had been an actual division of this tract in Polk township, the tract being assessed both by number and name of original warrantee. The number of acres is simply descriptive and would not overturn the number of the tract, the name of the warrantee, and the duty of the assessor. An argument still more conclusive may be drawn from the effect of a sale under the assessment in Polk township, had Hays omitted to pay his taxes in that township. As to this effect Williston v. Colkett, 9 Barr 38, is directly in point. Thus the assessment was of No. 4483, original quantity 999 acres, present quantity 200 acres, warrantee James Wilson, present owner A. J. Underhill. The treasurer’s deed following this assessment was for 200 acres, but the real quantity in the tract was 600 acres, being three times the quantity sold. The court below held the assessment to be too vague; but on a writ of error this court' decided that the deed passed the title to the whole 600 acres. “ No man (says Coulter, J.) who reads the assessment can doubt the intent of the officer to assess all the land which was unseated on the warrant in the name of Wilson. Such is the obvious meaning and import of the assessment; the number of acres was mentioned as descriptive.” It is true Coulter, J., laid some stress on the fact that Mann, the owner, had for two years before paid tax for only 200 acres, yet he did not rest the decision on that circumstance, but upon. the effect of the assessment as extending to all the unseated land remaining in No. 4483. So in the present ease had No. 4023 of 726 acres been sold for unpaid taxes, no one can doubt that the sale would have carried the entire quantity of No. 4023 lying in Polk township. There could be no presumption of an intent on part of the assessor to cut off 284 acres of the tract lying in Polk township, or that the assessor of ITeath township would assess these 284 acres as lying in Heath township when the fact was not so. Then clearly the rule which would divest Hays of his title to the whole of lot No. 4023 lying within Polk township for the non-payment of the taxes assessed in Polk township, will sustain him against a sale made after he had paid all the taxes for Polk township, demanded of him by the treasurer, without notice to him that the residue of his tract was assessed in Heath township. The .question is not what would be the effect of a sale upon an irregular assessment of 300 acres in Heath township, had there been no payment of all the taxes assessed in Polk, but it is what is the effect of a previous payment of all the taxes against his lands lying in Polk township. His entire ownership in Polk was the subject of assessment and taxation, and the payment of the whole tax so assessed is co-extensive with the charge.

But it is argued that the primá facie presumption is that the assessment of 300 acres in Heath township was made at the instance of Hays, and Clarke v. Dougan, 2 Jones 91, is referred to as authority for the position. But that was the case of a resident seated tract, where the heirs of Keely claimed by the Statute of Bimi.tations, and endeavored to extend a constructive possession to the lines of the warrant survey by an alleged payment of the taxes for twenty-one years. Keely, however, had suffered himself to be assessed sometimes for 50 acres, sometimes for 100 acres, sometimes for 200 acres, and sometimes for 300 acres, the-whole quantity in the survey. It was in reference to such a case C. J. (xibson said, it is the duty of the assessor to call on the owner for information in respect to the value and quantity of his property, and the presumption is he does it. But no such presumption can be made here. The tract was unseated, Hays, a non-resident living in Pittsburg, who had always paid his taxes in Polk township for his whole tract, No. 4023; the tract had been so originally returned in 1859, but the assessment had been altered without his knowledge- or consent, and he paid the taxes for 1859 by the hand of a stranger who had no special knowledge of his lands. In addition to all these circumstances, Mr. Hook, the treasurer, states that the 300 acres assessed 'in Heath township had not- been carried into his land-book when Darling paid the taxes for Hays, for the reason that he himself did not then know of that assessment. Under all these facts there is no room for a presumption of knowledge on part of Hays that his land had been divided in quantities by the assessors' or commissioners without even an ideal line of division, and 300 acres assumed to be in Heath township, when in fact only 16 acres were within Heath. Presumptions of law exist only when public policy or the ends of justice demand them. In fietione juris, semper ex- istet equitas. But what equity would exist in such a case as this, to take from one his property who has honestly paid all that was demanded of him, or that he had any reason to believe he owed ? Looking at all the facts of this case, the judge committed no substantial or hurtful error in charging that if the taxes were paid on the tract as returned in Polk township, it would be a payment of all the taxes on the tract, and the tax on the 300 acres would be a double assessment, and a sale of it would be void. The language is not altogether precise, as there were 16 acres of the 300 which lay in Heath township on which taxes were not paid; but no question was made on the 16 acres, the great battle being for the recovery of the 300 acres, which the purchasers under the tax sale had surveyed off to suit themselves, there being neither line nor designation of the 300 acres by locality. What has been said answers also the argument founded on the curative provisions of the 4th section of the Act of 1815, and the decision in Stewart v. Bamfelt, 13 S. & R. 360, and Montgomery v. Meredith, 5 Harris 42, that though irregular the sale passed the title to the 300 acres. It is not necessary, therefore, to decide what would have been the effect of a sale of land lying in Polk township under an assessment of land as lying in Heath township, had there been no payment of the taxes for all the land lying in Polk township ; for as already shown, the payment' of the taxes in Polk township was co-extensive with the whole of No. 4023, lying in that township, and defeats the sale of the 284 acres in that township, on one of the express grounds provided in the act, as the reasons of annulling the sale. Perceiving no substantial error in the record,

The judgment is affirmed.