author: Chief Justice Agnew

text:
    Watson versus Davidson et al.

    1. When the owner of a timber tract, in person or by others under him, enters thereon to take out the timber, carries on the business for so long a time and in such manner continuously, from year to year, as to show an actual and permanent occupancy of the tract, with the use thereof, and personal property thereon from year to year, and so that the appearance of the land itself indicates to the assessor that there is an occupation of the same by the claimant for the purpose or business of lumbering, it is seated, and it is the duty of the assessor to so assess it.
    2. The number, permanency, use and character of the buildings, the property found on the land; and the death of the owner accounting for a short non-user, were facts properly for the jury, in determining the question of an actual, continued and fixed possession.
    June 5th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward JJ.
    Error to the Court of Common Pleas of Warren county: Of May Term 1878, No. 89.
    Ejectment by Lewis P. Watson against Samuel Davidson and others, for a tract of land in Warren county.
    The plaintiff claimed title by virtue of a patent from the Commonwealth to George Mead, dated June 18th 1798; the assessment of the land as unseated for the taxes of 187 0; their sale for the taxes of 1870, and the deed of the treasurer to plaintiff, dated June 10th 1872.
    The defendants claimed title under one Joseph Green, who died in the fall of 1868. The land had always been assessed on the unseated list, was so assessed in the name of Green, and the taxes paid by him from the year 1856 to his death. After his death it was assessed to his estate as unseated, and the taxes paid by his administrators down to the year for the taxes of which it was sold to the plaintiff.
    It appeared from the evidence that about 1857, Green commenced cutting and removing timber from the tract, drawing it to the river and running it to market. The timber was cut and run to the river by jobbers who, during the whole of the year, except when engaged in running the lumber to market, occupied buildings or shanties on the tract, the materials for the erection of which were furnished by Green. These lumbering operations of Green continued until his death, from which time until December 1869, when the assessment of taxes for 1870 was made the land was unoccupied.
    On behalf of the plaintiff, it was contended that there was nothing in the appearance of the land that would indicate any occupation by a claimant, against whom it was the duty of the assessor to assess the taxes of 1870 as a personal charge, while the defendants claimed that the land was seated by the continuous occupancy for lumbering purposes disclosed by the evidence; and because there was upon the land, the result of that occupancy, sufficient personal property at all times to pay the taxes assessed thereon.
    In the general charge the court, Trunkey, P. J., inter alia, said:
    “ The land in controversy was sold at a treasurer’s sale for taxes and purchased by the plaintiff. The assessment and treasurer’s deed on their face vest title in the plaintiff and entitle him to recover. To defeat the title the defendants allege the land was seated at and before the time of the assessment. If this be true the assessment and deed are void, and the defendant’s title is as clear as if no tax sale had been made. The sole question for you to answer is, was the land seated at the time of the assessment? If so the assessor had no right to place it upon the unseated list; the consent of the owners could not give such right. If it had been placed on the unseated list for many years before, whether seated or unseated, that would be no excuse for continuing to place it there. Such prior assessments may be considered with other evidence bearing on the question at issue. But if the land was seated the assessment was a nullity, and no title can rest upon it.
    “ The defendants ask you to find that the land was a seated tract. The plaintiff claims that the evidence warrants no such finding, and contends it shows no residence, cultivation or improvement by clearing land; that instead of dwelling-houses and barns, only temporary shanties and stables were erected by jobbers, for use while stocking in logs in the winter season, and abandoned when their jobs were completed, and that there was nothing upon the land to indicate to the assessor that there was an actual occupation thereof. * * * [Actual residence upon a tract of land is not necessary to make it seated. Nor is cultivation, if by it is to be understood raising crops. Nor is improvement, if by that is meant making the land more valuable. But to seat the land it must be used and occupied, and have thereon the evidences of occupation.] To enter upon a tract of land with engine and machinery and sink an oil well, produce oil as a business thereon, store in tanks and remove the oil, would make the land seated, though no one resided on it, and not a foot were cultivated for crops. To erect a sawmill of a permanent character on a tract of timber land, and make a business of manufacturing the timber into lumber for market would seat the tract, though not a residence or shanty were built on it. To open out a mine of ore or coal and carry on the business of mining and disposing of the mineral or coal, on a tract of land, would be good evidence that it is seated. Without giving other instances, you see occupations' for various purposes may render a tract seated, and residence or cultivation are not always necessary. [Whatever the use and occupation it is essential that it be visible, and such as could be and ought to be seen and known by the assessor. A tract of woodland on which the assessor can see no use and occupancy is not seated. Cutting a few trees, squaring them and leaving them in the woods, would not make a tract seated, nor would giving out a job for a single winter or lumbering season, the jobber building a shanty and abandoning it when the lumbering was done before the assessment. Occasional cutting and taking away timber from a tract would not be enough to require the assessor to place it on the seated list. When the owner of a timber tract, in person or by others under him, enters thereon to take out the timber, carries on the business for so long a time and in such a manner continuously from year to year as to show an actual and permanent occupancy of the tract, with use thereof, and personal property thereon from year to year, and so that the appearance of the land itself indicates to the assessor that there is an occupation of the same by the claimant for the purpose or business of lumbering, it is seated, and it is the duty of the assessor to so assess it.] When one enters on a tract to reside and builds a house or clears and cultivates land, the real occupancy is manifest at once, and immediately thereafter the assessor is bound to notice such occupancy. In some other kinds of occupancy the same may not be so soon manifest, may not be so readily seen by the assessor, but whenever it has assumed such character as to be visible and known to every one whose business it is to see and know it, then the assessor is required to assess it as seated.
    “[Was the land seated prior to the year 1869? If so, the plaintiff contends that it was abandoned before the assessment in December of that year. If not seated prior, of course there need be no. inquiry as to abandonment. But if it was seated, did the evidences thereof sufficiently remain as to be visible and known to the assessor ? What were the evidences on the grounds of occupancy at the time of the assessment? Were they of such character as to arrest attention and show to the assessor that the tract had been occupied and seated ? If so, before assessing it as unseated it must have appeared abandoned. A mere temporary suspension of business, occasioned by the death of the owner, would not be enough. But if the appearance of the tract was such as to show clearly an abandonment of occupancy and cessation of the business, it could be assessed as unseated.]
    “ Coming back to the sole question first presented, if you answer by finding the land was seated at the time of the assessment, the verdict will be for the defendants; but if unseated, for the plaintiffs.”
    Verdict and judgment for defendants, when plaintiff took this writ, assigning for error, inter alia, the portions of the foregoing charge noted in brackets.

      William B. Brown, for plaintiff in error.
    The residence, improvement or occupation of any description which will seat a tract of land must be characterized by some degree of permanency and continuance: Wallace v. Scott, 7 W. & S. 248; Kennedy v. Daily, 6 Watts 269; Biddle v. Noble, 18 P. F. Smith 279; Lackawanna Iron Co. v. Fales, 6 Id. 90; George v. Messinger, 23 Id. 418. This case was destitute of all those features heretofore esteemed essential to seat land. The residence of each jobber, if indeed it can with any propriety be called a residence, was for so short a time and each one for such a transient purpose, that the intention of Joseph Green to seat or not to seat the land might have been as is said in George v. Messenger, a controlling element in the case. Whether facts essential to seat land are or are not established by the evidence, is for the jury. Whether given facts do or do not seat land, is for the court.
    If the taking timber from a tract of land has efficacy to seat it, may it not with propriety be claimed that the cessation of timbering for eighteen months, whether from the death of the owner or otherwise, justifies an assessment as unseated. The land presented no evidence of an intention ever to resume operations thereon.

      B. Brown and John P. Vincent, for defendants in error. —
    There was upon the land during the years 1869,1870 and 1871, personal property sufficient to pay all the taxes assessed against it, and the taxes could have been collected by distress, and this seated the tract: Milliken v. Benedict, 8 Barr 176; Campbell v. Wilson, 1 Watts 503; Ellis v. Hall, 7 Harris 296. This land was used by its owner for the purpose of lumbering, continuously for many years, and the testimony shows that he intended to continue that use, and this is one of the very kinds of use and possession that seat a tract: Lackawanna Coal Co. v. Fales, 6 P. F. Smith 90. This was as permanent an occupancy as the nature of the use required.
    June 10th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

This case was very fairly submitted to the jury on the only fact upon which the verdict turned, viz., the seated character of the tract, and of this there was sufficient evidence to go to them. In the legal aspect of the case, the question was whether a tract of land can be seated for lumbering purposes. The negative means that land cannot be seated except for agricultural purposes. It would have been error to so hold. The court said: “ When the owner of a timber tract, in person or by others under him, enters thereon to take out the timber, carries on the business for so long a time and in such manner continuously, from year to year, as to show an actual and permanent occupancy of the tract, with the use thereof, and personal property thereon from year to year, and so that the appearance of the land itself indicates to the assessor that there is an occupation of the same by the claimant for the purpose or business of lumbering, it is seated, and it is the duty of the assessor to so assess it.”

Clearly the character of the land as thus described, was a question of fact for the jury, and if so found, the land is seated, for we cannot perceive that such an actual continued occupancy has less effect than if the owner were in actual possession carrying on any other business. It is not the business which gives character, but the permanent occupancy and possession with the means afforded thereon for the collection of the taxes.

In this case the number, permanency, use and character of the buildings, the property found on the land, and the death of the owner, accounting for a short non-user, were facts properly for the jury, and not the court, in determining the question of an actual continued and fixed possession. While the jury might have found a different verdict, the evidence was not so weak as to be withdrawn, with a peremptory instruction to find a verdict for the plaintiff.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Dickinson versus Beyer, Adm’r, &c.
    1. Land, was charged with dower upon which arrears were due at the time of a sheriff’s sale upon a judgment immediately subsequent to the charge. Reid, that the arrears due at the sale were discharged thereby. Schall’s Appeal, 4 Wright 170; Helfrich v. Weaver, 11 P. F. Smith 385, and Wertz’s Appeal, 15 Id. 306, distinguished.

      2. A tract held by an equitable title, was divided by partition in the Orphans’ Court and charged with the widow’s interest. The allottees subsequently acquired and shared the legal title by conveyances, in which there was no allusion to the equitable title or the partition or the charge in favor of the widow. Reid, that these conveyances, although recorded, were not notice to a bona fide purchaser at sheriff’s sale of a portion of the tract, and that no recovery could be had from such purchaser of the arrears due the widow.
    June 5th and 6th 1878.
    Before Agneav, C. J., Sharsavood, Mercor, Gordon, Paxson, Woodavard and Trunkey, JJ.

      Error to the Court of Common Pleas of Clearfield county: Of May Term 1877, No. 92.
    This was an action of assumpsit brought by John Beyer, administrator of Christina Beyer, against Abraham Beyer as defendant, and William R. Dickinson, terre-tenant, to. recover arrears of statutory dower charged originally upon land of Abraham Beyer, after-wards conveyed to William R. Dickinson. The narr. contained one special count setting out briefly the original charge and the chain of title to Dickinson, and counting upon an implied assumpsit by him to pay the annual interest, &c. Plea: Non-assumpsit, with leave, &c.
    The facts were as follows : David Beyer, husband of Christina, was at the time of his death the owner of the equitable title to a tract of land, the legal title to which was in Hardman Phillips. In 1846, after the death of David, his real estate was divided by partition in the Orphans’ Court and the two purparts awarded to his two sons, Abraham and Henry, the portion allotted to the former being charged with the annual payment of $34.12 to Christina, David’s widow. A balance of purchase-money was due to Phillips, and this sum was paid by Abraham, as administrator of his father, and credit for the payment taken in his administration account, settlement therefor being privately made with the heirs. • Thereupon Phillips and wife, in February 1850, conveyed to Abraham and Henry the legal title to the real estate of which partition had been decreed by the court, without in any way referring to David Beyer or to the proceedings, and in May 1851, Abraham and Henry executed between themselves, upon the back of the deed made by Phillips, a deed of partition of the same real estate, conveying to each in severalty the same land which he had been awarded by the court, but making no reference to the proceedings or to the equitable title of David Beyer. These instruments were duly recorded in May 1851. In January 1857, judgments were obtained against Abraham by Samuel Smith, under which the purpart of Abraham was sold, in January 1861, to William A. Wallace, attorney for‘Mr. Smith. Mr. Wallace subsequently, in 1863, sold to A. S. Dickinson, although the deed was not delivered until October 1st 1869, and the latter conveyed in the year last named to his brother, William R., the defendant named as terretenant.
    The annual interest due the widow -was paid until 1851 or 1852 by Abraham, after which nothing was paid, and the widow dying in 1866, this suit was brought by her administrator to recover the arrears. The defendant, Dickinson’s 1st, 2d, 4th, 5th and 6th points, with the answers of the court thereto, were as follows :
    1. There can be no recovery by plaintiff for anything accruing previous to the sheriff’s sale to W. A. Wallace, in January 1861.
    Ans. “For present purposes we answer this point in the negative, but will reserve the question involved in it for further consideration ; and if we hereafter come to the conclusion that the sheriff’s sale in January 1861 discharged the instalment then due Christina Beyer, we can enter a judgment for the proper amount, as there is no dispute as to the amount which would be due subsequent to the sheriff’s sale.”
    2. The fact appearing that either W. A. Wallace or A. S. Dickinson was a bona fide purchaser without notice, with deed and chain of title from the legal owner duly recorded, this would give to him and those under him title against the claim of plaintiff, and prevent a recovery by plaintiff in this case.
    Ans. “ We answer this point in the negative. There is no particle of evidence that either Mr. Wallace or those claiming under him at the time of their respective purchases had ever seen or heard of the deed from Hardman Phillips and wife to Abraham and Henry Beyer; and, even if they had known of that deed, it could not have had the effect of giving them the land free from a charge upon the title remaining of record.”
    4. There can be no recovery against Abraham Beyer in this case.
    Ans. “ The plaintiff does not seek to recover a personal judgment in this case against Abraham Beyer, but simply a judgment do terris; that is, a judgment to bind the land upon which this dower was specifically charged. The naming Abraham Beyer as defendant was proper, as he might have evidence of payments to his mother which the other defendant knew nothing of, and his being joined as defendant can work injury to no one.”
    5. There can be no recovery by plaintiff against W. R. Dickinson under the declaration, pleadings and evidence in this case.
    Ans. “We answer this point in the negative; if it is meant that there can be no recovery that will bind the land now owned by him. There can be no recovery against him personally.”
    6. Under the declaration, pleadings and evidence, the plaintiff cannot recover, and the verdict must be in favor of defendants.
    Ans. “We negative this point.”
    The court (Orvis, A. L. J.,) instructed the jury to find how many annual payments were in arrear, and the jury having found a sum due since 1852, the court afterwards entered judgment on the verdict for the full amount claimed, discussing the question reserved in the answer to the first point in an elaborate opinion, and holding that the arrears of interest due at the time of the sheriff’s sale were not discharged by that proceeding.
    The defendant, Dickinson, took this writ, assigning for error the answers to the points and the entx’y of judgment on the reserved point.

      McEnally 8; MoGurdy, for plaintiff in error.
    1. A sheriff’s sale made on a judgment subsequent to the charge of statutory dower, there being no intervening mortgage or fixed lien, discharges the annual interest due at the time of the sale: Reed v. Reed, 1 W. & S. 239; Mohler’s Appeal, 5 Barr 420; Shertzer’s Executors v. Herr, 7 Harris 37; Zeigler’s Appeal, 11 Casey 173.
    2. Mr. Wallace and the plaintiff in error were holders of a-perfect title on record, with no notice, actual or constructive, in the line of their title of any claim of David Beyer, or his widow, and there can be no recovery therefor against the plaintiff in error: Bracken v. Miller, 4 W. & S. 102; Filby v. Miller, 1 Casey 264; Woods v. Farmere, 7 Watts 382; Stewart v. Freeman, 10 Harris 120. Abraham’s possession being consistent with his title on record was not notice of any different title: Plumer v. Robertson, 6 S. & R. 184; McCulloch v. Cowher, 5 W. & S. 429.
    3. The evidence did not support the declaration.

      David L. Krebs, for defendant in error.
    1. The widow’s interest is an estate in the land, not a lien: Schall’s Appeal, 4 Wright 170 ; and is not divested by a sheriff’s sale: Gourley v. Kinley, 16 P. F. Smith 270. The interest, being an incident of the principal, remains charged also, therefore, and this principle is decided in Schall’s Appeal, supra; Helfrich v. Weaver, 11 P. F. Smith 385; and Wertz’s Appeal, 15 Id. 306.
    2. The recording acts were intended for the protection of purchasers against conveyances from the same vendor. The sheriff’s sale only passed the interest Abraham really had: Friedly v. Scheetz, 9 S. & R. 162; Bashore v. Whisler, 3 Watts 490; Stewart v. Freeman, 10 Harris 123.
    October, 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

In the proceedings for the partition of the real estate of David Beyer, deceased, the purpart allotted to Abraham Beyer was made subject to the payment of the annual sum of $84.12 to the widow of the decedent during her life. On the 14th of January 1861, this purpart was sold by virtue of executions issued in two judgments, obtained against Abraham Beyer by Samuel Smith, amounting to $2000. In September 1869, the title of the purchaser at the sheriff’s sale became vested in William R. Dickinson, one of the defendants below, and the plaintiff in error. After the death of the widow, her administrator brought this suit to recover the arrears of the annual payments which had been secured to her in the partition. The question, which was mainly discussed on the trial of the cause and in the opinion on the point reserved by the court below, was whether the plaintiff could recover unpaid instalments from the time when Abraham Beyer ceased to pay them, or only from the date of the sheriff’s sale. The jury ascertained that payments were in arrear from the year 1852, and rendered a verdict for the sum accrued during the whole period, for which the court afterwards entered judgment.

There was no special contest as to the nature of the widow’s right. It was admitted that since the decision in Schall’s Appeal, 4 Wright 170, statutory dower is an interest in land, and not a lien upon it liable to be divested by a sale under a junior encumbrance. But the ground was taken on the part of the defence that payments which were due at the date of the sheriff’s sale were dischai-ged by it, and should have been demanded out of the proceeds. Throughout the clear and carefully prepared opinion of the judge who tried the cause, Schall’s Appeal, supra, Helfrich v. Weaver, 11 P. F. Smith 385, and Wertz’s Appeal, 15 Id. 306, were treated, in connection with Devine’s Appeal, 6 Casey 348, and The Miner’s Bank v. Heilner, 11 Wright 452, as having established the binding and unbending rule that payments accrued and in arrear out of an estate or interest in land, or on account of a charge upon it,, can only be divested when the estate, interest or charge is itself divested. The labor bestowed upon the cause by the court below makes it necessary to inquire, at some tedious length, whether the authorities relied on were designed to have a scope so comprehensive as that attributed to them. All of them, except Schall’s Appeal, involved a discussion of the effect of the Act of the 6th of April 1830, in protecting the liens of mortgages from extinguishment by judicial sales under later liens. In The Miners’ Bank v. Heilner, a mortgage on a leasehold property had been executed in pursuance of the provisions of the Act of the 27th of April 1855, and the property had been sold under a testatum fi. fa. from another county. It was ruled that such a mortgage stood on precisely the same footing as the mortgage of a freehold; that rent reserved in a coal lease was analogous to a ground-rent, against the existence of which the lien of a mortgage was expressly preserved by the Act of 1830; and that rent due on such a lease was not under that act a prior lien, which would have the effect to discharge a mortgage of the leasehold by a sheriff’s sale of the term on an execution against the lessee. Devine’s Appeal decided that on a sheriff’s sale subject to a mortgage and also to a prior ground-rent, the purchaser takes subject to the arrears of ground-rent due at the time of the sale. The real point that was settled in Schall’s Appeal was, that where the conditions defining the liens to which a sale was subject were in writing and were expressed in the sheriff’s deed, the court would not relieve the purchaser from any part of his bid, but would enforce the contract of sale. In Helfrich v. Weaver, a rule was laid down which has become axiomatic, that liens, the existence of which prior to a mortgage will cause it to be divested by a sheriff’s sale, must be such as are themselves divested and thrown upon the fund. The facts of that case were, that one Martin had died intestate seised of real estate, which was sold to Kuntz, subject to the dower of Martin’s widow; the land being devised by Kuntz to his wife for life or during widowhood, a portion was sold to Helfrich by order of the Orphans’ Court in proceedings under the Act of the 18th of April 1858, the purchase-money remaining charged upon the premises during the life or widowhood of the widow of Kuntz, the interest to be paid to her annually; and upon these facts it was held that the lien of a mortgage afterwards executed by Helfrich was not discharged by a subsequent judgment against him. Wertz’s Appeal, the latest of the authorities on which this judgment was rested, decided that where the owner of land charged with a widow’s thirds mortgaged it, and afterwards a judgment was recovered against him, under which the land was sold, there being then arrears of interest due the widow, the purchaser took subject to the arrears of interest as well as to the mortgage.

It is manifest that the point in each of these cases was ruled in contemplation of the fact that a mortgage intervened between the estate, or charge out of which the arrears were payable and the judgment under which the sheriff’s sale was made. It was no part of the intention of the judges who decided them, to overturn other established principles or overrule other recognised precedents. While it is clear that a widow’s thirds are such an estate in land as to be free from hazard of divestiture by a sale under a junior encumbrance, it is believed to be equally clear that instalments payable out of that estate, in arrear and capable of ascertainment, are chargeable, when no mortgage intervenes, on the fund the sale produces. Reed v. Reed, I W. & S. 235, involved the right to unpaid instalments of an annuity given to a widow by her husband’s will. “It was long ago decided,” Judge Sergeant said, in Bantleon v. Smith, 2 Binn. 146, “that arrears of ground-rent due at the time of a sheriff’s sale are payable out of the moneys raised by the sale. There is no distinction between a legacy charged on the land and other liens. 'The only reason why the future arrears of an annuity payable out of the land to the widow have been excepted, is on account of the impossibility of computing their amount. Therefore, as to them, the purchaser has been held to take the land chargeable with the future payments. But this does not apply to arrears due and payable. They are a fixed and certain debt, capable of exact computation, and therefore entitled to be discharged.” In Mohler’s Appeal, 5 Barr 418, a testator had charged land devised to his son with the yearly interest on 500i., payable to his widow during life. The widow brought two suits for arrears. The first was undertermined when the land was sold. In the second she recovered a judgment for arrears amounting to $360, which she assigned to Martin Frey. The land was sold under the judgment, the net proceeds for distribution being $149.07. It was held that the assignee in the second suit was not entitled to the whole fund, but was merely entitled to come in pari passu with the widow, to whom the arrearages of interest included in the first suit as well as the arrearages due at the time of the sheriff’s sale, were payable. Shertzer’s Executors v. Herr, 7 Harris 34, was decided upon facts partly ascertained in Kline v. Bowman, reported in the same book at p. 24. Land had been sold under proceedings in partition by an order of the Orphans’ Court, and been purchased for certain minor heirs, and conveyed to another heir, the deed declaring that the sum of $2713.19 remained charged on the land during the life of the widow of the intestate. The property was sold at sheriff’s sale on judgments not connected with the partition. In the opinion delivered in Shertzer’s Executors v. Herr, Judge Lewis said: “ The sheriff’s vendee takes the land charged with the encumbrance which was payable at the death of the widow of John Boivman, deceased. It follows that no part of the money in court can be appropriated to the payment of any part of that lien, except the annual interest which was in arrear at the time of the sale by the sheriff.” In reversing the decree in Zeigler’s Appeal, 11 Casey 173, $127.68, “arrears of dower annuity,” were directed to be paid to Hannah Garber, to whom the annual interest on $1815 had been secured in the partition of her husband’s estate. There the sheriff’s sale which produced the fund, was made on the mortgage which was the lien next succeeding the charge in favor of the widow. In Lauman’s Appeal, 8 Barr 473, a widow entitled to interest during life, on unpaid purchase-money for land sold under an Orphans’ Court, was allowed in the distribution of the proceeds of a sheriff’s sale the arrearages due when the sale was made. The very point of the present inquiry would appear to have been decided in Shertzer’s Ex’rs v. Herr, in Zeigler’s Appeal, and in Lauman’s Appeal.

Apart from direct authority, the rule and practice have been repeatedly assumed to be established in other cases. Thus in Mather v. McMichael, 1 Harris 301, it was said by Judge Bell, “ Bantleon v. Smith, 2 Binn. 146, reiterated by Pancoast’s Appeal, 8 W. & S. 381; Dougherty’s Estate, 9 Id. 189, and Ter Hoven v. Kerns, 2 Barr 96, settle the doctrine that the arrears of ground-rent, being a lien on the land charged, are to be paid out of its proceeds when sold by judicial process. In this respect this species of lien seems to stand on the same footing with other pecuniary encumbrances due at the time of sale and capable of ascertainment. Of these it most nearly resembles the arrears of an annuity payable to the widow of a testator out of lands devised by him, or the charge imposed by our intestate laws in lieu of dower. In these instances, by the policy of our law5 the sale divests the encumbrance of the sums due, and, as a necessary consequence, the owner is turned on the proceeds in exoneration of the land. And even in Wertz’s Appeal, the last of the precedents relied on by the court below, the same principle is shown to have been recognised by the following extract from the opinion of Judge Sharswood : “It has, however, undoubtedly been held that though the charge itself may be a fixed lien, incapable of divestiture because incapable of computation, the rule is different as to any arrears either of rent, annuity or interest which may be due at the time of the sheriff’s sale, because such arrears are ascertainable with certainty in amount, and therefore payable out of the fund. After citing the cases, the distinction was stated to consist in the fact that in none of them was there a mortgage immediately following the fixed lien.”

On another ground the defendant contended that the plaintiff was not entitled to recover. At the time of the partition of David Beyer’s real estate, the legal title was in Hardman Phillips. The purchase-money due was paid by the administrators, and credit taken for it in the administration account. Phillips conveyed the land on the 12th of February 1850, to Abraham Beyer and Henry Beyer, who divided it between themselves in the same shares which had been allotted to them in the partition. In their second point, the counsel for the defendants asked the court to charge that “ the fact appearing that either W. A. Wallace or A. S. Dickinson was a bona fide purchaser without notice; with deed and chain of title duly recorded, this would give to him and those under him title against the claim of the plaintiff, and prevent a recovery by the plaintiff in this case.” The court said, “We answer this point in the negative. There is no particle of evidence that either Mr. Wallace, or those claiming under him, at the time of their respective purchases, had ever seen or heard of the deed from Hardman Phillips and wife to Abraham and Henry Beyer; and even if they had known of that deed, it could not have had the effect of giving them the land free from a charge upon the title remaining of record.” The partition of David Beyer’s real estate was made in the year 1846. Phillips conveyed to Abraham and Henry Beyer in 1850. The judgments under which the property was sold, were obtained at January term, 1857, and the sale was made in January 1861. The deed from Phillips was in the ordinary form, and contained no reference to the contract with David Beyer, and that contract was never recorded. When, therefore, Abraham Beyer’s property was sold, there was nothing to charge the purchaser, under the recording acts, with notice of David Beyer’s equitable title, or of the interest of the widow which had sprung from it. The deed from Phillips and that by which his grantees divided the land between themselves, made up the apparent title under which those grantees claimed. These deeds did not indicate to the purchaser the duty of examining the records of the Orphans’ Court, “The tenant’s possession is notice of title in every form ; the registry of a particular title is notice of that alone, and would be useless for any purpose but to restrict the generality of notice from possession Woods v. Farmere, 7 Watts 384. In that ease it was held that a purchaser of land is not affected with constructive notice of anything which does not lie within the course of his title, or is not connected with it; and that he is not, therefore, presumed to know of the registry of a will containing a devise of the land which he claims by title paramount. “ Where he who is in possession has placed upon record a title consistent with that possession, it may well be taken for granted that he holds under the recorded title, especially in this Commonwealth, where every deed or writing affecting the title of lands may be and ought to be recorded:” Tilghman, C. J., in Plumer v. Robertson, 6 S. & R. 179. It was ruled in Banks v. Ammon, 3 Casey 172, that a purchaser at a judicial sale is protected from defects in a title apparently good, and that the record of a deed which contains neither the locality nor definite marks of identification of the land, is not notice to such a purchaser, nor will it put him on inquiry. The burden of proof of actual notice to Mr. Wallace and the defendant of David Beyer’s equitable title, and of Abraham Beyer’s claim under the partition in the Orphans’ Court was upon the plaintiff. As the facts appeared at the trial, the second point of the defendants should have been affirmed.

■There is nothing in the objections to the pleadings specified in the fifth and sixth assignments of error which could not have been met by an amendment.

Judgment reversed, and venire de novo awarded.


author: Mr. Justice Paxson-

text:
    Struthers versus Dunkirk, Warren and Pittsburgh Railway Co.
    . 1. A common-law action does not lie against a railroad for consequential injuries occasioned by the construction and operation of its road.
    2. A railroad company was authorized by its charter to construct its road to any given point in the town of Warren. It constructed its road on a public street immediately in front of plaintiff's premises, who brought suit to recover damages for the inconvenience and annoyance occasioned thereby. Held, that the discretion of the directors of the company in selecting the route of the road could not be inquired into by the court. Held, further, that in the absence of any express provision therefor in the charter, the company was not liable in damages for the annoyance to a property-owner fronting on a public street so taken, caused by the passage of trains, the cinders and smoke, and the hindrance to the passage of carriages.
    June 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Warren county: Of May Term 1878, No. 129.
    Case by Thomas Struthers against the Dunkirk, Warren and Pittsburgh Railway Co.

      Under an Act of Assembly approved March 24th 1870, Pamph. L. 550, the Conewango Yalley Railroad Company was organized, and letters patent issued prior to April 18th 1870. On the 5th of May 1870 it was consolidated with defendants’ road, and became “The Dunkirk, Warren and Pittsburgh Railway Company.”
    The Conewango Yalley Railroad Company, by the act of incorporation, were authorized to construct a railroad, with one or more tracks, “from the northern boundary of the county of Warren, Pennsylvania, to any point in the borough of Warren,” and to cross at grade and connect with any railroad built or hereafter to be built at either end, or any intermediate point. “And the said railroad company shall be entitled to all the privileges and be subject to all the provisions and restrictions prescribed by an act regulating railroad companies, approved the 19th day of February 1849, together with the supplements thereto, except in so far as they are inconsistent with this act.”
    In August 1871, the defendants entered upon, laid and constructed their railroad along the centre of High street, from a point eastward of the plaintiff’s premises, to or near the western line of the town, and in its course directly in front of plaintiff’s premises. At the time of the building of the defendants’ road, the plaintiff had erected and nearly completed, at an expense of from $20,000 to $30,000, a brick dwelling-house on his premises before-mentioned, and by this suit, brought October 10th 1871, he claimed to recover damages for the inconvenience, annoyance and expense actually sustained by him to the time of bringing suit, in consequence of the building and using by the defendant of their railroad in front of his house. The right, and not the amount of damages, was rhe principal question, it being agreed that if plaintiff had the right, a verdict of $50 might be rendered.
    On the trial of the case the plaintiff offered to prove that no necessity or good reason existed for building defendant’s road along High street in the borough of Warren; that a route shorter in distance and of easier curvature was attainable at but a small increase in expense, and by which the defendant’s road would have reached its terminus and made its connection without occupying any portion of High street or any other street longitudinally, and working much less injury to both public and private interests.
    The court rejected this offer and directed the jury to find for defendants, which action was assigned for error.

      W. D. Brown, S. P. Johnson and Gr. W. Beofield, for plaintiff in error.
    The Acts of Assembly under which defendant’s road was built, do not authorize the occupation of High street, in the absence of affirmative evidence that a reasonable necessity existed therefor. Neither can the defendant create such a necessity by the selection of the terminus of its road, in the absence of affirmative evidence that a reasonable necessity existed for such terminus : 1 Redfield Law of Railways 297 ; Springfield v. Conn. Railroad Co., 4 Cushing 63; Phila. & Trenton Railroad Co., 6 Whart. 43; Commonwealth v. Erie & N. E. Railroad, 3 Casey 354.
    The ruling in Cleveland & Pittsburgh Railroad v. Speer, 6 P. F. Smith 325, on which the court below based the rejection of the plaintiff’s offer, is not to the point. In that case the right of the road to lay its main track on the street was not directly raised. The right to the main line b.eing taken as existing, the decision was that the right to build and maintain switches could not be questioned. Here the issue is as to the right to occupy the street by defendant with its main track.
    The plaintiff has a right of property in the ground and soil of High street for the purpose of ingress and egress to and from his premises, unobstructed by defendants’ railroad: Tate v. O. & M. Railroad, 7 Porter (Ind.) 479. In maintaining this proposition the plaintiff does not forget that it is not in harmony with the former decisions of this court, but a rigid adherence to the maxim stare decisis would leave the plaintiff to endure great wrong without hope of remedy. The plaintiff is therefore emboldened to ask the reconsideration of former decisions, with the view of ascertaining whether or not they accord with the fundamental law of the state. See Eaton v. Boston Railroad Co., 51 N. H. 504.
    If the Act of Assembly incorporating defendant’s road does authorize the occupation of High street, and if, as is herein claimed, the plaintiff has a right of property in the use of that street unobstructed by a railroad, it follows that the act itself is invalid, inasmuch as no provision is made for the assessment and payment of damages for the occupation of a street in a borough, except in the case of a cut or an embankment: O’Connor v. Pittsburgh, 6 Harris 187; Hinchman v. Paterson Horse Railroad, 2 C. E. Green (N. J.) 75; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35-65; Booth v. Town of Woodbury, 32 Conn. 120; People v. Mayor of Brooklyn, 4 N. Y. 419; Brand v. H. & C. Railroad, Law Rep. 2 Q. B. 223.

      B. Brown, for defendants in error.
    In this state a railroad company may use a public street or highway, when authorized by its charter expressly or inferentially: Cleveland & Pittsburgh Railroad v. Speer, supra; Phila. & Trenton Railroad, supra; Mifflin v. Railroad, 4 Harris 192; Mercer v. Pittsburgh, Et. Wayne and Chicago Railroad Co., 12 Casey 99; Commonwealth v. Erie & N. E. Railroad Co., 3 Id. 354; Danville, &c., Railroad Co. v. Commonwealth, 23 P. F. Smith 38; Faust et al. v. Passenger Railway Co., 3 Phila. R. 164.
    A common-law action does not lie against a corporation for a consequential injury occasioned by the construction and maintenanee of its works: Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Henry v. Bridge Co., 8 Id. 85; N. Y. & Erie Railroad Co., 9 Casey 175; West Branch Canal Co. v. Mulliner, 18 P. F. Smith 861; Watson v. Pittsburgh and Connellsville Railroad, 1 Wright 479; Black v. Phila. & Reading Railroad Co., 8 P. F. Smith 252.
    The right to locate the road lies in the directors alone, and not in the court: N. Y. & Erie Railroad Co. v. Young, 9 Casey 175; Cleveland & Pittsburgh Railroad Co., supra; Parke’s Appeal, 14 P. F. Smith 137.
    The case of Eaton v. Boston Railroad, supra, is plainly distinguishable from this case. There was there an actual interference with the rights of property, and a disturbance of the plaintiff’s possession.
    June 17th 1878.
   Mr. Justice Paxson-

delivered the opinion of the court,

The defendant corporation was authorized by its charter to construct a railroad from the northern boundary of the county of Warren to any point in the borough of Warren. With the consent of the borough authorities, the defendants, in August 1871, laid and constructed their railroad along the centre of High street, in the borough of Warren, directly in front of plaintiff’s premises. At the time the defendants’ road was being constructed, the plaintiff had erected and nearly completed, at considerable expense, a handsome dwelling-house on his said premises, and brought this' action of trespass on the case to recover damages for the inconvenience and annoyance occasioned by the building and operating of the railroad immediately in front of his residence. The pleadings are not given, but we gather from the charge of the court that the annoyance caused by the passage of trains, the cinders and smoke, and the hindrance to the passage of carriages, were the chief matters of complaint. However considerable these annoyances may be, they do not constitute a cause of action. There is no principle of law better settled in Pennsylvania, than that a common-law action does not lie against a corporation for consequential injuries occasioned by the construction and operation of its works: Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Henry v. The Bridge Co., 8 Id. 85; N. Y. & Erie Railroad Co. v. Young, 9 Casey 175 ; O’Conner v. The City of Pittsburgh, 6 Harris 187 ; Watson v. The Pittsburgh and Connellsville Railroad Co., 1 Wright 469; Cleveland and Pittsburgh Railroad Co. v. Speer, 6 P. F. Smith 325; West Branch Canal Co. v. Mulliner, 18 Id. 357. It is equally clear that a railroad company may use a public street or highway for its road, when authorized by its charter to do so: Philadelphia and Trenton Railroad Co., 6 Whart. 25; Mifflin v. The Railroad Co., 4 Harris 182; Mercer v. The Pittsburgh, F. W. & C. Railroad Co.. 12 Casey 99; Commonwealth v. Erie & North East Railroad Co., 3 Id. 339. There is only one question remaining in the case, and that is, whether the court below should have received evidence to show that the company might have located its road upon another route, and thus have avoided laying the track upon High street. We are clearly of opinion that the learned judge was right in excluding evidence of this character, and also in his answers to the points in which the same question was presented. The discretion of the company in locating its road cannot be reviewed in this manner. The location was made in the exercise of an undoubted power. It was said in Parke’s Appeal, 14 P. F. Smith 137: “ Neither the court below nor this court has any right to interfere with the location made by the company on the score of preference, if any be felt. The only question is, whether it has or has not exceeded a discretion on the subject, apparent on the face of the act of incorporation.” See also N. Y. & Erie Railroad Co. v. Young, 9 Casey 175, and Cleveland & Pittsburgh Railroad Co. v. Speer, supra.

It was admitted by the learned counsel for the plaintiff, that the current of authority was against his view of the case, and we were urged to review the previous decisions of this court and recast them in harmony with the state of public opinion at the present day. We see no reason why the law should change to suit the barometer of public opinion. On the contrary, we see many reasons why it should not. And especially are we not disposed, for such reason, to overturn a long line of cases, solemnly decided, which have, to some extent, become rules of property, and upon the faith of which investments have been made and rights have grown up. It is our duty to apply the maxim stare decisis.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Chase versus Irvin et al., Executors.
    1. In ejectment by executors in whom title vested extra the will of testator the defendant is inadmissible as a witness in his own behalf, under the Act of 1869, as to the declarations of the deceased grantor of plaintiffs.
    2. The rule that one claiming the equitable title to land, as against his vendor, who is rightfully in possession, and to whom the purchase-money has not been fully paid, cannot recover in ejectment, without a tender of such purchase-money first having been made, does not obtain where the vendor, claiming under an adverse title, intrudes upon the lawful possession of his vendee.
    3. In order that a former ejectment may have force as evidence in a subsequent suit, it is necessary that it should have been not only between the same parties, and for the same land, but also that it should have involved the same title.
    June 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkev, JJ.

      Error to the Court of Common Pleas of Clearfield county: Of May Term 1878, No. 26.
    Ejectment by E. A. Irvin and James B. Graham, executors of William Irvin, deceased, against John M. Chase, to recover possession of one hundred acres of land, part of a larger tract of land surveyed in pursuance of a warrant dated June 8th 1784, granted by the Commonwealth of Pennsylvania to William King. In 1835 the title to one hundred acres of this William King tract was vested in Isaac Dunlap, who, in 1842, conveyed the same to Stacy W. and Isaac Thompson. In 1846 William Irvin bought this land at sheriff’s sale on a judgment which he had against the Thompsons. On the 19th day of September 1859, an article of agreement was entered into between Stacy W. Thompson and William A. Dunlap, in which Thompson sold these one hundred acres to Dunlap for the consideration of $800, a part of which has been paid by Dunlap. In 1864, William Irvin who, it appears, held the legal title of these one hundred acres from 1846 to 1864, made a deed to Stacy W. Thompson, thereby vesting the legal title in Thompson. In 1865 a judgment was obtained against William A. Dunlap in favor of William Irvin, which became a lien upon the interest of Dunlap in the land purchased from Thompson. The lien was kept alive by revival until in 1874, when these one hundred acres were levied upon by the sheriff and sold to D. L. Krebs, Esq., who was acting as the attorney of the executors of William Irvin. Krebs subsequently made a deed to E. A. Irvin and James B. Graham, the executors of Irvin, who are the plaintiffs in this action. Thompson conveyed the legal title to John M. Chase, the defendant, by deed dated the 19th day of June 1868, and recorded on the 15th day of March 1869.
    Chase, the defendant, claimed title under a warrant to George Scuff, surveyed in 1793, and that he afterwards, on June 19th 1868, obtained from the Thompsons a deed for their interest in the land.
    At the trial, before Mayer, P. J., the defendant, inter alia, made the following offer:—
    Defendant offers in evidence, in connection with the testimony of William A. Dunlap, under whom plaintiffs immediately claim, record of Court of Common Pleas of Clearfield county, January Term 1859, John M. Chase v. Stacy W. Thompson et al., showing suit brought January 4th 1859, for the land now in dispute. Verdict, with draft attached, identifying the land, filed for plaintiff, June 22d 1866. Also, record of estrepement in same case, a.nd filing of bail, the same to be followed by record in Supreme Court, July Term 1866, affirming the judgment entered upon said verdict in the court below; to be offered upon the question of notice of Mr. Chase’s claim to William Dunlap, prior to his purchase from Thompson, September 19th 1869, and as persuasiye evidence upon the question at issue.
    Objection. Excluded. Sixth assignment of error.
    The defendant was then offered as a witness on the part of the defence, for the purpose of showing by his testimony his improvement of the George Scuff tract, and his possession of the same, and that Isaac Dunlap, under whom plaintiffs claim, admitted by his declaration to Chase, while he (Dunlap) was on the William King survey, that the line, north fifty degrees east, from the red oak corner of the Scuff survey was the boundary between the George Scuff and William King, and that William A. Dunlap, under whom plaintiffs claim, made the same admissions. Also, to prove admissions of Daniel Bowman, under whom plaintiffs claim, to same effect.
    Objection. Excluded. Seventh assignment of error.
    Among the points submitted by the defendant the sixth was as follows, the refusal of which constituted the fourth assignment of error:
    The plaintiffs claim title through William A. Dunlap, who purchased the land in controversy from Stacy W. Thompson, by articles of agreement, dated September 19th 1859, for the sum of $800. No deed having been made to them or their vendor, they have at most but an equitable title, and cannot recover without proving that they have paid all the purchase-money, or made a tender thereof, before the bringing of this suit, and unless the jury are satisfied from the evidence that this was done, their verdict must be for the defendant.
    The following portion of the general charge constituted the fifth assignment of error:
    “ If the plaintiffs are entitled to hold this land, and the jury should so conclude from the evidence, it will be their duty to find a verdict for the defendant for the land, conditioned upon the payment by the plaintiffs of whatever amount of purchase-money and interest they may find to be unpaid upon the articles of agreement between Thompson and Dunlap. They can in their verdict fix a time when the purchase-money shall be paid.”
    The verdict was for the defendant for the land, conditioned upon the payment to plaintiffs of $400, and after judgment defendant took this writ, his assignments of error, among others, being those above noted.

      Murray Crordon, for plaintiffs in error.
    A conditional verdict cannot remedy the plaintiffs’ failure to either tender or pay the purchase-money before suit brought: Snyder v. Wolfley, 8 S. & R. 332; Thomas v. Wright, 9 Id. 87 ; Chahoon v. Hollenback, 16 Id. 433 ; Smith v. Webster, 2 Watts 486; Gore v. Kinney, 10 Id. 140; Cadwalader v. Berkheiser, 8 Casey 43. The offer, covered by the sixth assignment, was admissible on the question of notice: Murphy v. Nathans, 10 Wright 514; Bolin v. Connelly, 23 P. F. Smith 336. And as persuasive evidence, Koons v. Hartman, 7 Watts 25; Wilson v. Bigger, 7 W. & S. 124; Levers v. Vanbuskirk, 4 Barr 315; Beck’s Executors v. Graybill, 4 Casey 66; Soper v. Guernsey, 21 P. F. Smith 222. Neither William Irvin nor Isaac Dunlap were assignors of the contract, or anything in action within the meaning of the Act of 1869, so as to exclude the defendant: Karns v. Tanner, 16 P. F. Smith 304; Hanna v. Wray, 27 Id. 29 ; Mann v. Wieand, 4 W. N. C. 10; Strawbridge v. Catanach, 4 Id. 177; Gyger’s Appeal, 24 P. F. Smith 48; LcFerren v. Mt. Alto Iron Co., 26 Id. 188.

      Wallace ‡ Krebs and McJEnally McGurdy, for defendants in error.
    Plaintiffs were properly parties on record as executors, and being so defendant was not a competent witness: Taylor v. Kelly, 30 P. F. Smith 95. When the vendor is lawfully in possession of land, and the vendee has only an equitable title, and has not paid the purchase-money, and the vendor, who, in such case, is but a trustee of the legal title for the vendee, acts in good faith in respect, to his trust towards the vendee, then, as a general rule, the vendee must first pay, or tender the purchase-money before he can maintain ejectment. But where the vendor acts in bad faith, by claiming in opposition to his trust, or by unlawfully taking possession in violation of the rights of the vendee, then the vendee may recover his possession by action of ejectment without a previous payment or tender of the purchase-money: Harris v. Bell, 10 S. & R. 39; D’Arras v. Keyser, 2 Casey 249; Keller v. Auble, 8 P. F. Smith 410.
    June 17th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

In order to save a judgment belonging to the estate of William Irvin, the executors above named, took an assignment from Mr. Krebs, their attorney, of a sheriff’s deed for the land in suit, which had been sold as the property of William A. Dunlap, on an execution issued from a judgment belonging to J. B. Graham & Son. This was altogether proper, and the title being in this manner vested in Irvin and Graham, they were the proper persons to institute and maintain this suit.

But as the title to the land vested in them extra the will of the testator, they hold not as executors but as trustees; the trust arising from the duty and good faith due from them to the estate intrusted to their care. The action, then, not being one by executors, it does not, for this reason, fall within the proviso of the Act of 1869, and had there been nothing else in the way, the defendant might have been admitted as a witness in his own behalf. But the offer, covered by the defendant’s seventh assignment, proposed proof, by Chase, of the declarations of Isaac Dunlap, the deceased assignor of the title claimed by the plaintiffs, as to the lines of the land in controversy. In other words, Chase, himself being witness, proposed to make title in himself through the declarations of a grantor of the plaintiffs, that grantor being dead. But this was within the proviso of the statute as interpreted by the case of Karns v. Tanner, 16 P. F. Smith 297, and was, therefore, properly rejected.

The defendant’s sixth point was well ruled. Whilst it is undoubtedly true, that one claiming the equitable title to land, as against his vendor, who is rightfully in possession, and to whom the purchase-money has not been fully paid, cannot recover in ejectment without a tender of such purchase-money first having been made; yet such is not the rule where the vendor, claiming under an adverse title, intrudes upon the lawful possession of his vendee: Harris v. Bell, 10 S. & R. 39. In such case, full justice is done by a conditional verdict such as the court directed in the present case.

The next, and only other assignment, which we think necessary to notice, is the sixth. This covers the rejection of the record of the Court of Common Pleas of Clearfield county, showing an action of ejectment brought to January term 1859, by John M. Chase against Stacy W. Thompson et al., in which there was a verdict for the plaintiff on the 22d of June 1866. This was offered as notice to William A. Dunlap of Chase’s claim prior to his purchase from Thompson, and as persuasive evidence on the question in issue.

The first part of this proposition amounts to nothing, for, at the time of Dunlap’s purchase, the claim of Chase was adverse to the title under which Dunlap held and unconnected with it, so that the question of notice was not in the case, since, if Chase were entitled to the property under his Scuff title, he would recover without regard to whether his adversaries had or had not notice. As to the latter part of the offer, that must depend upon whether or not the plaintiff’s title was passed upon in that action. To ascertain this we must next revert to that title. It seems that the property in controversy was covered by a warrant from the Commonwealth to William King, dated June 8th 1784, which was duly surveyed and returned to the land office in 1785. Afterwards, in 1835, one hundred acres of the land covered by the above-named warrant vested in Isaac Dunlap who, on the 26th of December 1842, conveyed the same to Stacy W. and Isaac Thompson. In 1846 William Irvin bought this property at a sheriff’s sale upon a judgment which he held against the Thompsons. Whilst Irvin thus held the land, Stacy W. Thompson agreed, by articles, dated September 19th 1859, to sell the same to William A. Dunlap, whose equity, as we have already shown, the plaintiffs now own, and in 1864 William Irvin reconveyed, by deed, to Thompson, Dunlap’s vendor. On the other hand, at the time of the trial of the ejectment in 1866, the defendant, Chase, claimed title under a warrant to one George Scuff, surveyed in 1793, and he afterwards, June 19th 1868, obtained from the Thompsons, a deed for their interest in the premises now in dispute.

It is thus apparent, that at the time of the commencement of the ejectment mentioned in the defendant’s offer, Stacy W. Thompson had no title to the land then claimed by Chase. Now, in order that a former ejectment may have force as evidence in a subsequent suit, it is necessary that it should have been not only between the same parties and for the same land, but also that it should have involved the same title : Treaster v. Fleisher, 7 W. & S. 137. Here, however, the title, now in controversy, was not involved in the prior ejectment, inasmuch as Thompson had no title whatever at the impetration of that writ. It is true, that having obtained a deed from Irvin, before the time of the trial, he might have used it as he might have used any outstanding title, but, as at that .time, by reason of his previous sale to Dunlap, he had but the legal title the verdict could only operate, if at all, upon that title.

The judgment is affirmed.


author: Per, Curiam.

text:
    Clement versus The Northumberland Coal Co.
    Marks found upon an adjoining junior survey cannot control or enlarge the dimensions of an earlier survey, even though the junior survey adopts the lines of the older, but such marks may be submitted to the jury, as evidence tending to discover the actual location of the older survey.
    June 10th 1878.
    Before Agnew, O. J., Mercur, Gordon, Woodward and Trunkey, JJ. Sharswood and Paxson, JJ., absent.
    Error to the Court of Common Pleas of Northumberland county: Of May Term 1877, No. 88.
    Ejectment by Ira T. Clement against the Northumberland Coal Company, to recover eighty-three acres of unseated land.
    The plaintiff claimed title to a tract of land in the name of Mary Myers, granted by-a warrant from the Commonwealth, on the 11th of June 1793, and surveyed on the 2d of October of that year. The title of the plaintiff to the land embraced in this warrant and survey was not disputed. This Mary Myers tract was one of a block of eleven tracts, surveyed at the same time, for the same person, on warrants all dated June 11th 1793. This block of surveys was known as the “Brush Yalley” block.
    The defendants claimed that the land in dispute was embraced within the lines of a tract of land surveyed October 22d 1794, on a warrant of November 26th 1793, to William Elliott. This William Elliott tract was one of a block of four surveys known as the “LaFavre” block, and adjoining the Brush Valley block on the south. The true line dividing these two blocks of surveys was the question in the case.
    It appeared that the northern line of the Brush Valley block and the southern line of the tracts forming the LaFavre block were both distinctly marked on the ground, but there was no evidence to show that the boundary line between these two tracts had ever been marked. The LaFavre block was the latest surveyed, and was described as bounded on the north by the Brash Valley block, but the eastern and western lines of the two blocks, as returned to the land office, were not of sufficient length to extend to a common boundary. The easternmost tract of the Brush Valley block was the Lobdell tract, and it also appeared that four months after the survey of the Brush Valley block a tract of land to the east of said block, and known as the Richard Martin tract, was surveyed and described as bounded on the west by said Lobdell tract and having its southwest corner identical with the southeast corner of said tract. It was shown also that the southern line of the Richard Martin tract was distinctly marked by a pitch pine and by a “ post by a pine” at its southeast corner. This return, it appeared, was returned to the land office three days before the earlier survey of the Brush Valley block. The plaintiff contended that the location of the southern line of the Richard Martin tract fixed the southern line of the Brush Valley Block, which included the plaintiff’s tract and he therefore, in his third point, asked the court to charge:
    “That in making a location, either of a single survey or of a block of surveys, the marks found upon the ground belonging to junior surveys, made about the same time by the same-surveyor, may be taken into consideration by the jury as evidence of the proper location of the elder surveys, if it appears that the surveyor in locating and marking the lines of the junior survey or surveys, adopted the lines of the older surveys which they adjoin, and returned those of the junior as identical with those of the older.”
    Which the court, Elwell, P. J., answered as follows :
    “ Marks found upon adjoining surveys, made about the time of the survey, are evidence upon the subject of location, but they cannot control or enlarge the dimensions of an earlier survey, even though they may adopt its lines.
    In the general charge the court also, inter alia, said : “ The material question in this case is, whether the southern boundary of the Mary Myers was fixed by that pitch pine on the line of the Martin, and by its southeast corner at a post by a pine.
    ' “ Upon that subject we have presented to us a number of points by the counsel, and their request to us to charge you, and I can as well give my views in reference to that subject by answering those points, as by any other method. Therefore I shall pursue that course, for the case, in my judgment, is narrowed down to the fact, as to whether the southern boundary of the Mary Myers was fixed by those marks or not. If it was, and if the marks made upon that Martin warrant were made at a later day that warrant could control the surveys upon the southern boundary of the Mary Myers. If there'was no line running south of the Mary Myers, nor of the body of surveys, then, unless this pitch pine controls the location of the course down to that, the plaintiff’s title does not extend further south than the length of the lines called for in the warrant, and if that is not the case, he could not recover the lands in question; on the contrary, if they do extend down beyond the original call — reach down far enough to make the line run from the pitch pine west, then, as I understand it, the Myers survey covers the land in question.”
    Verdict and judgment for defendants. Plaintiff then took this writ and assigned for error, inter alia, the answer to his third point.

      F. B. Gowen, Wm. O. Lawson, T. H. Purdy and 8. P. Wolverton, for plaintiff in error.
    While it may be true that the adjustment of the lines of a junior survey cannot of itself enlarge the boundaries of an older, or effect its location, yet the evidence of what the deputy-surveyor did on the ground, in locating the junior warrants contemporaneously with the location of the older, certainly should have been submitted to the jury, on the question of the location of the line between these two blocks: The Carbon Run Improvement Co. v. Rockafeller, 1 Casey 49; Sweigart v. Richards, 8 Barr 436 ; Bellas v. Cleaver, 4 Wright 260.

      Joshua W. Qomly, John W. B/yon and George W. Zeigler, for defendant in error.
    The marks on a junior survey cannot be made to extend or contract an older survey: Bellas v. Cleaver, supra ; Manhattan Coal Co. v. Green, 23 P. F. Smith 310.
    June 17th 1878,
   The judgment of the Supreme Court was entered

Per, Curiam.

The point though made in the oral argument against the instruction of the learned court below, we think is without a sufficient foundation in the charge. The judge very correctly held that a subsequent survey could not control the lines of a former, but he did not leave the case upon this single instruction, by omitting to inform the jury that the subsequent acts of the deputy-surveyor in locating a junior warrant, and the marks left by him on the ground, might be considered as evidence tending to disprove the actual location of the older survey. On the contrary, he answered the third point of the plaintiff below, which raised the question very plainly, so as to bring the true distinction fairly before the minds of the jury. The point is clear, and he replied: “Marks found upon adjoining surveys made about the time of the survey are evidence upon the subject of location, but they cannot control or enlarge the dimensions of an earlier survey, even though they may adopt its lines.” Thus the jury was left to locate the earlier survey by those marks, if they should conclude that they indicated the true place of the earlier location; and were at the same time informed, that the lines of a later survey cannot alter or enlarge the lines of a former survey, although the courses and distances of these former lines may be adopted. Certainly this was a fair instruction and brought the charge within the precedents cited. The difference between that which is evidence of a fact and an effect which controls the fact is plain. Then when the judge came to state the evidence of the marks found, he most distinctly referred to the pitch pine on the southern line of the Martin tract, and the post or pine as the material matter in determining the question as to the southern boundary of Mary Myers. In the next paragraph he refers to his answers to the points and leaves the question of the boundary as indicated by those marks to the jury. On the whole we discover no error.

Judgment affirmed.


text:
    Overseers of the Poor of Limestone Township versus Overseers of the Poor of Chillisquaque.
    1. In an order of removal, the justices did not adjudge where the paupers’ last place of settlement was. The court below refused to quash, for that reason : Held, not to be error.
    2. A. abandoned his domicile in Pennsylvania, lived for several years in Illinois and Missouri, where children were born to him, who, upon his death, returned to this state. Held, that they were foreigners, so far as the poor-laws were concerned, had no legal settlement here, and must be supported by the district in which they first became chargeable.
    3. The provision for the removal of paupers into other states is nugatory; there is no power by which it can be carried into effect.
    June 10th and 11th 1878.
    Before Aghíew, C. J., Mercur, (Jordon, Woodward and Trunrey, JJ. Sharswood and Panson, JJ., absent.
    Error to the Court of Quarter Sessions of Northumberland county: Of May Term 1877, No. 280.
    In the court below this case was heard upon an appeal by the Overseers of the Poor of Limestone towns'hip, from an order of removal made by two justices, directing the removal to that township of two paupers who had become chargeable in, and had been supported by, the township of Chillisquaque.
    The facts appeared by depositions taken upon the appeal, and were as follows: Isaac Dolby lived until September 1861 with his father, Christian Dolby, in Limestone township, Union county. In that month he enlisted and served in the army until 1865, when he returned to his father’s house, lived with him and in the neighborhood until April 1866, when he sold his property in Pennsylvania and moved with his wife to the west. They lived successively in Freeport, Illinois, where their stay was short; in Morgan county, Missouri, where they remained for a year; in Benton county, in the same state, where they took up a homestead of one hundred and sixty acres, built a house and lived from 1868 until 1871, during which time their son, Christian, was born. In 1871 they removed to Henry county, also in Missouri, and while living here their son Samuel was born. In 1873 they left Missouri and settled in Peoria, Illinois, where Isaac died in February 1875. His widow thereupon came east with her children, and took up her residence with Christian, her husband’s father, who, in 1867, had moved from Limestone township, Union county, to Chillisquaque township, Northumberland county. The children, Christian and Samuel, who are the paupers in question, were supported by their grandfather until October 1875, when he was granted relief on their account by the Overseers of Chillisquaque, and they were supported at the cost of the township from that time until January 1877.
    On January 17th 1877, the Overseers of Chillisquaque obtained from two justices of the borough of Milton' an order of removal, of which the following are the essential parts: — •
    “Northumberland county, ss.
    “To the Overseers of the Poor of Chillisquaque township, in said county; and to the Overseers of Limestone township, in Union county, Pennsylvania.
    “ Whereas complaint has been made to us, the subscribers, two justices of the peace of the borough of Milton, in the county of Northumberland, by the Overseers of the Poor in Chillisquaque township, in said county, setting forth that on the 1st day of October 1875, Christian Dolby, aged about eight years, and Samuel Dolby, aged about six years, minor children of Isaac Dolby, deceased, and grandchildren of Christian Dolby, senior, then and there actually became chargeable for their support to the said township of Chillisquaque, without the said children having gained a legal settlement within the said township, and remain so chargeable ; and also setting forth that Isaac Dolby, deceased, the father of said children, had his last known legal settlement within the township of Limestone, in Union county, in said state. And whereas we, the said justices of the peace, after a careful consideration of the evidence laid before us, and also of the law of the case, do find the said allegations to be true, and do adjudge the same to be true. * * *
    “ The 19th section of our Act of 13th June 1836, declares that when a person is liable to become chargeable as a pauper to any district, it shall be law’ful for two magistrates of that county to remove such person at the expense of the district, city or place where he was last legally settled, whether in or out of Pennsylvania. From the digest of statutes of the state of Missouri, published in 1865, we see that a person who has resided there for the space of twelve months next preceding the time of any order being made, has acquired a legal settlement in that part of Missouri where he resided. (See Digest, page 232, sect. 3.) And in the Digest of the Statutes of the state of Illinois, published in 1858, we see that the residence of a person in any county of Illinois, for the space of thirty days immediately preceding such person’s becoming chargeable as a pauper, gives him a legal settlement for said purpose in Illinois. (Digest, p. 187, sect. 12.) And as Isaac Dolby aforesaid, after leaving Pennsylvania resided in Missouri about eight years ; after that again upwards of a year in the state of Illinois, it seems clear to us that he must have gained a legal settlement in both of these western states after leaving Pennsylvania. And now, if the above children are to be removed west at all, we are of the opinion that the burden and expense should not fall upon Chillisquaque township, where these children and their father never had a legal settlement, but that it should be borne, injustice, by the Overseers of the Poor of Limestone township, in Union county, Pennsylvania, where the said Isaac Dolby, the father, had his last legal settlement in Pennsylvania.
    “We do therefore hereby authorize and require you, the Overseers of the Poor of Chillisquaque township, to remove and convey Christian Dolby and Samuel Dolby, the children of the said Isaac Dolby, to the township of Limestone, in Union county, Pennsylvania, and deliver them, together with this order, or copy thereof, to the overseers of the poor of the said township of. Limestone, who are hereby ordered and required to receive and provide for said children as legally settled inhabitants thereof, until the said children are removed west for said purpose if that be deemed necessary or advisable by said township. As witness our hands and seals at Milton this 17th day of January, Anno Domini 1877.
    John F. Woleinger, J. P. [l. s."
    Jno. Miller, J. P. [l. s.]”
    The order also contained a further discussion of the question of Isaac Dolby’s settlement, and a reference to numerous decisions.
    An appeal was taken on February 1st by the Overseers of Limestone township, and upon the hearing a motion to quash the order of removal was also made :
    1. Because there was no adjudication that Limestone was the legal settlement of the paupers.
    2. Because the order directed the paupers to be removed, and “ to be kept until the children are removed west for said purpose,” which the Act of Assembly does not authorize.
    3. Because the evidence before the justices disclosed that the settlement of both paupers was outside the state of Pennsylvania.
    The appeal raised the question of the paupers’ legal settlement, and the court, (Rockefeller, P. J.,) refused the motion to quash and confirmed the order of removal, holding that Isaac Dolby’s last settlement in Pennsylvania was in Limestone township, that while it was possible he had gained a settlement elsewhere, the evidence did not fix with certainty the township or poor district; that the court probably did not have the power to determine the settlement of a pauper in another state, and remove him, and would not do so in any event without clear evidence, which was wanting in this case; and, therefore, since the Act of Assembly required the removal to be to the place of the last legal settlement, whether in or out of the state, the paupers must go to Limestone township, where it was certain their father’s last settlement in Pennsylvania had been, and in which they had acquired a derivative settlement from him.
    To this ruling the Overseers of Limestone township excepted, and afterwards having obtained a writ of error, assigned for error the refusal to quash and the confirmation of the order.

      Linn, Dill Marr, for plaintiffs in error,
    upon motion to quash, cited, 3 Binns’s Just. 543; West Buffalo v. Walker, 8 Barr 180; Burrell Township v. Pittsburgh, 12 P. F. Smith 475; and referred to difference between Act of 1810, § 4, providing that no deficiency of “form or substance” should prejudice on appeal, upon which Overseers of Reading v. Overseers of Cumree, 5 Binn. 81, was decided, and the Act of 1836, § 19, Purd. 1156, pl. 21, which speaks of defects of “form” only.
    With regard to the settlement of the paupers, they argued that the evidence showed that the father had abandoned his domicile in Pennsylvania, that the children were born elsewhere, and therefore, being foreigners, must be supported by the township in which they first became chargeable : Phila. v. Bristol, 6 S. & R. 565 ; Overseers v. Bunn, 12 Id. 292; Overseers v. McCoy, 2 P. & W. 434.

      JR. M. Oummings, for defendants in error.
    On appeal the Court of Quarter Sessions decides according to the truth and merits, without regard to defects in form or substance: Reading v. Cumree, 5 Binn. 81; Cumberland v. Jefferson, 1 Casey 463. The Supreme Court is confined to the regularity of the proceedings : Shippen v. Gaines, 5 Harris 38; Bradford v. Goshen, 7 Smith 495. A settlement in Limestone was clearly proven, and to avoid the consequences a new settlement elsewhere must be clearly and specifically proven.
    October 7th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

On an appeal from an order of removal, the Court, of Quarter Sessions is required by the Act of Assembly, if there be any defect in the form of said order, to amend the same, and thereupon to proceed to hear and determine the ease upon its truth and merits. And so it seems, from the case of the Overseers of Reading v. The Overseers of Cumree, 5 Binn. 81, whenever the matter is brought by appeal within the power of the Quarter Sessions, defects in the order, whether in form or substance, are to be disregarded.

It follows, that though in the order under consideration, it does not appear that the justices who issued it adjudged Limestone township to be the last place of settlement of the paupers; the court, nevertheless, did right in refusing the motion to quash.

Whether these paupers were properly chargeable to Limestone remains to be considered. According to the case of the Overseers of Washington v. The Overseers of Beaver, 3 W. & S. 548, the prima facie' settlement of a pauper is the place of his birth, but the birth of a child -does not give it a settlement, except when the settlement of the parents is not known, and then, only until it is discovered’.

The latter part of this proposition must, necessarily, be subject to the qualification that the known place of settlement of the' parents is within the state, for the knowledge of such settlement comes to nothing if it be beyond the jurisdiction of our courts, since it could .not, in that event, be charged with the maintenance of the pauper. It is, therefore, obvious that the prima facie settlement by birth must become, for all .practical purposes, absolute whenever it is ascertained that the child is of foreign or extra state parentage. It is indeed true that, by our poor laws, provision 'is made for the removal of paupers into other states, but this provisiones nugatory in that there is. no power by which it can be carried into effect; hence, the order of removal loses all force the moment it crosses the state line. In other words, the legislature of Pennsylvania cannot charge the poor districts of other states with the support of paupers, though their settlements may properly be therein, and, per contra, other states cannot so charge the poor districts of Pennsylvania.

Now, the children, who are the subjects of the order under consideration, were born, the one in Missouri, and the other in Illinois; their. father,- Isaac Dolby, Avas resident in the state last named at the time of his death, and had abandoned his domicile in Pennsylvania some nine years previously. We have, therefore, two facts which should definitely settle the question in hand: 1. Isaac Dolby was not a citizen of Pennsylvania when his children were born, and, hence, had no settlement therein. 2. These children were native-born citizens of other states, and must be regarded, for the purposes of this case, to have been settled therein.

The conclusion, made inevitable by the facts' and principles developed by this case, is, since neither the paupers nor their parents were or are citizens of this state, they must be treated as strangers, and, for the present, that district must be regarded as their place of settlement in which they first became chargeable.

The order of the Court of Quarter Sessions of the Peace is reversed, and the order of removal discharged. It is further ordered that the appellant have and receive from the poor district of Chillisquaque such costs and charges as to said court shall seem just.


author: Pur .Curiam.

text:
    Kramer versus The Commonwealth.
    On the trial of an indictment for arson, evidence of a subsequent distinct criminal act, hut connected in character and purpose with the offence charged, is admissible. ■ '
    June 12th 1878.
    Before'Agnew, C. J., Merour,, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Oyer and Terminer of Columbia county: Of May Term 1878, No. 43.
    Indictment of Harmon A. Kramer for arson, charged with burning the Exchange Hotel in Bloomsburg, Pennsylvania. The three counts of the indictment charged that defendant had set fire to said building on the 23d of May 1877. •
    At the trial it was shown on the' part of the Commonwealth that about 1 o’clock on the morning of the23dof May 1877, fires were discovered in the east and west basements of the hotel; that the defendant, who was an inmate of the hotel, had been seen in these ■basements on the day before, and that he had no business therein, and that hi? bed was unocchpied on the night of these fires.
    The Commonwealth then offered to prove that during tlm day and evening of the 25th of May 1877, the defendant,Jwhen requested and directed to leave the hotel 'by persons in charge, declined to leave, and made several excuses and unfounded pretexts for remaining, and when peremptorily ordered to go, in the evening of that day, went up stairs twice under false pretenses of getting his clothing and other property, and was in an upper room detected with a light, and upon his leaving the same in- apparent confusion of mind, a large quantity of matches were found in the said room, one box" of which had been ignited and was still warm, and the said room .contained combustible materials — to be accompanied and followed by proof of suspicious conduct of said Kramer during said day and evening, and sundry contradictory and false statements by him, as to his conduct, purposes, possession of matches, and firing the same. This evidence offered to show that the said Kramer attempted and intended the burning of the hotel on the 25th of May as bearing upon the question of the identity of the person perpetrating the burning on the 23d, and as proof of a continuous connected attempt and purpose to fire the said' hotel by the said Kramer, and also in part as conduct by defendant evincing conscious guilt.
    Objected' to,, because, the evidence was of an attempt to commit a felony on a different day and at a different place from that heretofore alleged and proven before the court, to wit, on the 23d of May 1877. • And. because there was- no evidence before the court which connected' Kramer with the burning of the 23d of May, and- the evidence offered as to the iiicidents occurring on the 25th does not tend to connect him with .or prove him guilty of the transaction of .the ;28d., ’
    The court, Elwell, P. J., overruled .the objections and admitted the testimony, saying:
    “I.acknowledge the force’of the argument that a party charged with one' single offence shall not be required to answer to numerous offences, and that the giving of evidence of a different offence might have a tendency to prejudice the jury against the defendant. . Nevertheless, in a case situated just as this is, while acknowledging that rule (and.I feel disposed to enforce it upon the-minds-of the- -• jury), there is some evidence here which we will be obliged to submit to the jury. Whether it will be sufficient to convict, or whether we would allow a verdict to stand, is not the question — we would be obliged to submit it to the jury. And this evidence now offered ’ .may have some bearing upop the’question-of the first alleged firing. In that point of view, it would most certainly be evidence— that is to say, the Commonwealth can show the conduct of -the defendant both before the offence was committed and after — show his conduct of a nature bearing upon the question of the act alleged; they can show his declarations before, his admissions afterwards ; and, if they can show, by any evidence either before or afterwards, a purpose in the mind >of the defendant to destroy this building, that would be competent.”
    Verdict: Guilty in manner and form as .indicted, and after a motion for a new trial was discharged, the prisoner was sentenced, when he took this writ, assigning for errPr, inter alia, the admission of the above testimony.

      A. O. Smith, Harvey E. Smith and John Gr< Freeze, for plaintiff in error.
    The evidence of a subsequent offence not immediately connected in time and circumstance with the former offence, charged is not admissible in evidence : 1 Whart. Crim. Law (7th ed.) sect. 631, art. 647; Shaffner v. Commonwealth, 22 P. F. Smith 60; Coble v. State, 4 Law & Eq. Rep. 677; Brock v. State, 26 Ala. 104 ; Rex v. Long, 6 C. & P. 179 ; Rex v. Trueman, 8 Id. 727 ; People v. Clark, S. C. of Mich.; 1 Law & Eq. Rep. 287.

      John M. Clark, C. B. Buckalew, W. J. Buckalew and George B. Mivell, for the Commonwealth.
    The Commonwealth’s offer of testimony, the admission of v'hich'is epmplained of in this specification, oovered certain conduct and declarations' of the prisoner subsequent to the firing of the hotel. That this proposed testimony in one of its parts, upon a possible construction of the facts, pointed to a renewed attempt by Kramer to fire the building or indicated preparation therefor, did not render-the offer inadmissible. “ It is admissible to producé evidence of a distinct crime .to prove scienter or to make out the res gestee, or to exhibit a chain of circumstantial evidence of guilt in respect to the act chargedWhart. Crim. Law, sect. 650. Much more will evidence be admissible to prove a renewed attempt to consummate the same offence — the desti’uction of the hotel — and connected- in time and circumstances with the former attempt. “Even offences technically subsequent can be admitted when they virtually, form one transaction with that under trial:” Whart. Crim. Law, sect. 647 a.

    June 17th 1878,
   .The judgment of -the Supreme Court was entered

Pur .Curiam.

WeMiscover no error in this-case.. The assign--men't most relied on,, the third, is not sustained. The offer ivas not *to prove an independent offence on the trial of a óase having no connection with it, as in Shaffner v. 'Commonwealth, 20 P. F. .Smith • 60,.but it'ay as to prove acts immediately after the first attempt 'to burn the hotel, which tended to show a guilty purpose in Kramer’s mind, such as Avould mak.e it quite probable that he was the same' person Avho had made the former attempt. It was a circumstance in the chain of proof. . The fact that it indicated an attempt to fire the building again did not wéaken the proof of purpose, because if accomplished, it Avould be a distinct offence. . The'purpose of the first attempt failed because of the extinguishment of the fire, and though it had burned sufficiently to constitute the offence of arson as a complete crime, yet the purpose Avas not complete, for that Avas to consume the building entirely. Being saved, it was clearly the subject of a réneAved purpose, and the evidence of this reneAved purpose tended strongly to show that the person Avas the same who made both attempts,-.. The language of the opinion in Shaffner v. CommonAvealth, is directly in favor of this view. It is there said: “to make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some'.purpose hé intended to accomplish ; or it must be necessary to identify the person of the actor, by a connection which shows that, he who committed the one must have done the other.”

Sentence affirmed -and the record remitted for execution.