text:
    Moseby, Appellant, v. Fleck.

      Sheriff’s sale — Real estate — Rights of purchaser — Prior conveyance in fraud of creditors — Right of possession.

    A purchaser of laud at a sheriff’s sale acquires, as against a prior vendee under a voluntary conveyance in fraud of creditors, more than a mere right to contest the latter’s title. Such a purchaser acquires all that he would acquire had no fraudulent conveyance been made, except that he takes the estate incumbered by prior existing liens; in other words, he succeeds to every right that his fraudulent debtor had in the land, and this includes, of course, the right of possession. If he is evicted from possession which he has peaceably acquired by a person claiming -under the fraudulent conveyance, he may recover damages from the wrongdoer for the injuries sustained.
    Argued May 22, 1911.
    Appeal, No. 2, May T., 1911, by plaintiff, from order of C. P. Fulton Co., Oct. T., 1906, No. 39, refusing to take off nonsuit in case of William L. Moseby v. Daniel C. Fleck et al.
    Before Fell, C. J., Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass for an alleged wrongful ejectment from land in Wells township. Before Swope, P. J.
    From the record it appeared that prior to August 7, 1894, Abram G. Anderson was the owner of the farm from which the plaintiff was ejected. On that day Anderson and Emma, his wife, conveyed the land to Frank C. McClain, who on August 9,1894, conveyed it to Emma Anderson, wife of Abram G. Anderson. On May 25,1899, the administrator of Richard Ashman obtained judgment against Abram Anderson and under this judgment the land was sold by the sheriff on March 16, 1901, to the plaintiff in the execution, who by deed dated December 18, 1901, conveyed the same to William L. Moseby, the plaintiff, who notified Abram Anderson to quit, which he did on January 25, 1902, and thereupon the plaintiff took possession. In the meantime Frank C. McClain had obtained a judgment against Emma Anderson on which he issued an execution and caused the farm to be sold by the sheriff, became the purchaser at such sale, .and received a sheriff’s deed therefor on October 12, 1901. On January 29, 1902, Frank C. McClain ousted Moseby from the farm, and Moseby thereupon brought an action of ejectment by which he was restored to possession on July 9, 1906. Subsequently Moseby brought this action claiming damages for personal property injured, rental value of farm during the period of ouster, and depreciation of its value.
    There was evidence that the conveyance through McClain to Anderson’s wife was in fraud of creditors, including Richard Ashman.
    At the trial plaintiff made the following offer:
    It is proposed to be proved by this witness (Blaine Anderson being upon the stand) that Fleck, Frank C. McClain, Harry M. Edwards, William C. Cunningham and George Wilds came to the house on the Anderson farm, then occupied by the plaintiff in this case, on January 27, 1902, and again on January 29, 1902, and on the latter occasion ejected the plaintiff and his wife from the premises, removed their household goods, damaged the latter, and the amount of such damage, and other items of damage arriving from such ejection.
    The counsel for the defendants object to the admission of the testimony offered to be proved by this witness, because it appears as part of the plaintiff’s case that the farm from which the plaintiff was ousted was, on August 7, 1894, conveyed in fee simple by A. G. Anderson, from whom the plaintiff received the possession of these premises, to one Frank C. McClain, and by McClain the same day conveyed to Emma Anderson, whose title to the property it appears, from the record in ejectment offered by the plaintiff, passed to Frank C. McClain, one of the defendants.
    It further appears from the record that the plaintiff claims under Richard Ashman, a creditor of Abraham G. Anderson, prior to August 7, 1894, the date of the deed from Frank C. McClain; having by certain conveyances offered in evidence acquired, and by sheriff’s sale acquired, the title of Abraham Anderson; the only right which Ashman acquired being the right to contest and avoid the deed from Abraham Anderson to McClain, it follows therefore, that the plaintiff could not acquire any possession of the premises entitling him to sustain this action, except by pursuing the action of ejectment as he did; and therefore all evidence with respect to this eviction is irrelevant and immaterial, and incompetent and must be excluded. Objection sustained. [1]
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1) ruling on evidence; (7) refusal to take off nonsuit.

      William S. Hoerner and O. C. Bowers, with them John P. Sipes, for appellant.
    The plaintiff having acquired the right of property in the farm had also acquired the right of possession. Ashman’s administrator had purchased from the sheriff, and as such sheriff’s purchaser and grantee he acquired the right of possession: Culbertson v. Martin, 2 Yeates, 443; Wynkoop v. Cooch, 89 Pa. 450.

      July 6, 1911:

      Charles Walter, with him J. N. Sipes, Frank P. Lynch, S. W. Kirk and J. H. Longenecker, for appellees.
    What Moseby acquired was the right to contest the deed from Anderson to his wife: Zuver v. Clark, 104 Pa. 222; Hoffman’s App., 44 Pa. 95; Jacoby’s App., 67 Pa. 434.
    Abram G. Anderson divested himself of the possession and right of possession by the execution and delivery of his deed. By the subsequent deed from McClain to Emma Anderson, both the title and possession, as against Abram Anderson, vested in her. The husband could not do anything to affect the title or possession of his wife which passed to Frank McClain by the sheriff’s deed to him: Young v. Algeo, 3 Watts, 223; Zell v. Ream, 31 Pa. 304; Kellam v. Janson, 17 Pa. 467.
   Opinion by

Mr. Justice Stewart,

This case was tried on the theory that a purchaser of land at a sheriff’s sale acquires, as against a prior vendee under a voluntary conveyance in fraud of creditors, simply a right to contest the latter’s title, and nothing more. The authorities cited give no support to this view: Hoffman’s App., 44 Pa. 95, decided merely that where the owner of land incumbered with liens conveys in fraud of creditors, and the land is sold by the sheriff under a judgment subsequently obtained, the liens existing before the conveyance remain undivested, and are therefore not payable out of the proceeds of the sale. It is there distinctly said that the earlier cases, Byrod’s App., 31 Pa. 241, and Fisher’s App., 33 Pa. 294, where this doctrine was first announced, were so ruled in order to prevent the mischief of a divestiture of the liens by a sale under which the debtor’s deed had rendered it uncertain whether the purchaser would obtain any title; that because of this uncertainty it was thought necessary to declare that such purchaser holds subject to liens prior to the conveyance. The case is no sense derogates anything from the estate that passes to the sheriff’s vendee; but, on the other hand, contains a clear recognition that what does pass in such case is the debtor’s entire estate in the land. “ Still,” says Strong, J., after accounting for the origin of the rule as to prior hens, “it is the estate of the debtor, whatever that may be, which is sold at the sheriff’s sale.” This case is followed by Zuver v. Clark, 104 Pa. 222, where the same rule as to disvestiture of hens is applied, and it is there said, that a sheriff’s deed, under such conditions, passes to the purchaser all that was conveyed to the fraudulent grantee; that the deed being void as to the defrauded creditors, as regards them, it is still their debtor’s estate which is sold in satisfaction of their debts. Jacoby’s App., 67 Pa. 434, is tp the same effect, and it is there repeated in express terms that as to subsequent creditors a fraudulent conveyance is no conveyance. The doctrine of ah the cases is, that under the conditions we have here, a purchaser at sheriff’s sale acquires all that he would have acquired had no fraudulent conveyance been made, except that he takes the estate incumbered by prior existing liens, if any; in other words, that he succeeds to every right that his fraudulent debtor had in the land, and this includes of course, the right of possession. This being so, it is impossible to regard this plaintiff as an intruder. It is wholly immaterial how he obtained possession after he acquired the title that passed from the sheriff. It is enough to know that he obtained it peaceably in the assertion of a right. His forcible ejection was an unwarranted proceeding. It follows that for whatever injury resulted he is entitled to redress. The assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Duffy, Appellant, v. York Haven Water & Power Company.

      Practice, C. P. — Judgment n. o. v. — Evidence—Act of April 22, 1905, P. L. 286 — Waters—-Floods—New trial.

    1. The Act of April 22, 1905, P. L. 286, makes no radical change in' the law or the relative functions of the court and jury, but broadens the power of the court and authorizes it, where binding instructions have been declined at the trial, to enter such judgment as should have been entered upon the evidence. If it appear that there is a conflict of evidence on a material fact, or any reason why there cannot be a binding direction, then there can be no judgment entered against the verdict. However indisputable may be the proof, when it depends upon oral testimony it is nevertheless the province of the jury. to decide.
    2. In an action against a water and power company to recover damages to buildings, improvements and crops on an island in the Susquehanna river, alleged to have been caused by the defendant’s act in constructing a dam which materially .diverted the currents of the river so as to flood the plaintiff’s island when the ice on the river broke up, it is reversible error for the court to enter judgment for defendant non obstante veredicto, where the evidence for the plaintiff, although contradicted by that of the defendant, tended to show that the dam erected by the defendant contributed materially to the plaintiff’s injuries.
    Argued May 22, 1911.
    Appeal, No. 8, May T., 1911, by plaintiffs, from judgment of C. P. Dauphin Co., March T., 1906, No. 161, for defendant non obstante veredicto in case of James Duffy et al. v. York Haven Water & Power Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass for injuries to improvements and crops. Before McCarrell, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiffs for $13,785. Subsequently the court entered judgment for defendant non obstante veredicto.
    July 6, 1911:

      Error assigned was in entering judgment for defendant non obstante veredicto.

      John R. Geyer and Bernard J. Myers, with them John E. Malone and John E. Fox, for appellants.
    It was error to enter judgment n. o. v.: Dalmas v. Kemble, 215 Pa. 410; Edwards v. Woodruff, 25 Pa. Superior Ct. 575.

      Charles L. Bailey, of Wolfe & Bailey, for appellee,
    cited: Shaw v. Susquehanna Boom Co., 125 Pa. 324.
   Opinion by

Mr. Justice Mestrezat,

The plaintiffs are the owners of an island in the Susquehanna river, known as “Three Mile Island” or “Duffy’s Island,” which is about 1,800 feet wide at its greatest width and about three miles in length. It is in Dauphin county, and its upper point is about two miles south of Middletown and its lowest point is about the beginning of the Conewago .falls. The line between Dauphin county and York county at this place is at low water mark on the western side of the river. At Middle-town the river bends sharply and flows thence almost due south to the falls. Between Middletown and the falls there are several islands, the largest of which is Duffy’s island. Shelly’s island lies to the west of Duffy’s island. At the head of Duffy’s island the current divides, part flowing straight between Duffy’s island and Shelly’s island, part flowing west of Shelly’s island and between it and the York county shore, and part flowing in a narrower and shallower channel, with two. curves, east of Duffy’s island and between it and the Dauphin county shore. The eastern channel varies in width from 700 to 1,000 feet. Duffy’s island is separated from the York county shore by a channel about 2,000 feet wide. The river narrows very much at the southern end of Duffy’s island, and passes over Conewago falls at a descent of more than twenty feet in a mile.

At York Haven, just below the falls and about a mile below the foot of the island, the defendant erected, in 1902 and 1903, a power house and a dam. The dam in 1904 consisted of a wall about 300 feet long at right angles to the shore at York Haven, a similar, wall some 3,100 feet long, extending eastwardly and diagonally across the river at the falls, with its northern end about 500 feet from the west shore, and crib work of logs and stones extending beyond the end of the wall to a point about 1,000 feet west of Duffy’s island. The wall was of solid masonry, about twenty-five feet high, about six feet wide at the top, and about sixteen or eighteen feet wide at the bottom.

The winter of 1903-1904 was very severe in that vicinity, and the ice in the river was very heavy. It formed, broke and went out several times, but the river was never entirely clear at any one time. In March, 1904, the island was flooded with ice and water, destroying the plaintiffs’ buildings, farming implements, fences and other personal property, damaging the crops in the ground and removing the surface soil from the island. This action was brought to recover damages for the injuries thus resulting to the plaintiffs’ premises. The plaintiffs claim that the construction of the dam materially diverted the currents of the river and the ice and debris carried by these currents, and modified the quantity and character of the water surrounding the plaintiffs’ island, so that when the ice which formed in the river in 1904 broke, instead of moving off as it ordinarily had done through the unobstructed bed of the river, it was diverted and gorged to such an extent as to cause a rapid rise in the water, completely flooding the plaintiffs’ premises with water and large quantities of ice, and that when the gorge finally broke about March 8, 1904, the accumulated water and ice swept over the plaintiffs’ island and did the injury above stated. The defendant contends that the whole river was gorged with ice, from a point four or five miles below the Conewago falls up to and including the falls; that there was no gorge at the dam; that when the breakup came the ice in the western channel gave way first; and that the injury to the island was due to the fact that the falls themselves and the eastern channel were gorged. The learned court submitted the case to the jury, and they returned a verdict for the plaintiffs. The defendant moved the court for judgment non obstante veredicto, under the Act of April 22, 1905, P. L. 286. The motion was granted, and judgment was entered for the defendant. The plaintiffs have taken this appeal. The single question is whether there was sufficient evidence to warrant the court in submitting the case to the jury.

The act of 1905 authorizes the court to enter judgment non obstante veredicto where a request for binding instruction has been declined on the trial. As we have time and again said, this act makes no radical change in the law or the relative functions of the court and jury, but broadens the power of the court and authorizes it, where binding instructions have been declined at the trial, to enter such judgment as should have been entered upon the evidence. If it appear that there is a conflict of evidence on a material fact, or any reason why there cannot be a binding direction, then there can be no judgment entered against the verdict: Dalmas v. Kemble, 215 Pa. 410. However indisputable may be the proof, when it depends upon oral .testimony it is nevertheless the province of the jury to decide : Reel v. Elder, 62 Pa. 308.

We think the learned court erred in entering judgment for the defendant. As said in the charge, the question for determination by the court and the jury was whether or not the acts done by the defendant in the construction of its wing dam and the crib wall extending therefrom resulted in or contributed to the injury to the plaintiffs’ property. The issue was a very narrow one. The plaintiffs contend that the dam obstructed the natural currents of the river and that the ice accumulated until it extended up the river beyond the head of Duffy’s island, and when the thaw came and the ice broke it was thrown into the eastern channel and by reason of the size and character of that channel it was diverted westwardly across the plaintiffs’ premises. The defendant, on the other hand, contends that the river was filled with ice from shore to shore from a point below the falls up beyond the island, and that the dam was not the cause of the ice being diverted from the main channel into the eastern channel. It is further claimed that the Conewago falls and the eastern channel were, like the other parts of the river, entirely filled with ice.

Under the evidence the jury would have been justified in finding for either party. But in considering the motion for judgment for the defendant non obstante veredicto, the defendant’s contradictory testimony is eliminated, and the question is whether the evidence submitted, if believed, was sufficient to warrant the jury in finding a verdict for the plaintiffs. The plaintiffs’ witnesses testified that before the construction of the dam the main channel of the river was west of Duffy’s island, that ice ordinarily passed off through that channel, and that the effect of the dam was to change the current, making the water west of the island dead and throwing the main current to the east. Several witnesses testified that there was a gorge of ice at the dam, many feet high, and completely blocking the openings in the dam and between it and the island; that the gorge extended from the dam several miles up the river; that the eastern channel was filled with ice and closed, there being little or no water in it, but that it was not gorged as was the western channel; that the falls were partly clear of ice, some of the witnesses saying that they were practically open and clear of ice. The result of this testimony, if believed, would be to sustain the contention of the plaintiffs that the dam obstructed the natural flow of the water and caused the ice to gorge from the dam up the river above Duffy’s island, and that when the break came the ice which had accumulated above the island was diverted into the eastern channel which, while frozen to the bottom, was not gorged with ice; and that the falls were open. An expert witness was called and he, having heard the plaintiffs’ testimony as to the conditions existing at the time the premises were injured, testified that in his opinion the dam materially contributed to the gorge and damage done the plaintiffs.

Several witnesses for the plaintiffs saw the occurrences from different points on the river from March 4 to March 8, and they described the movement of the ice which began with the breaking away of the ice jam at Swatara Riffles, which was between the mouth of Swatara creek and the head of Duffy’s island. They say that the ice first moved in a southwesterly direction toward Goldsborough, then came back and passed down the channel to the east of Duffy’s island and, finding no outlet through that channel, passed across the island in the same southwesterly direction, doing the damage complained of. While the opportunity of some of these witnesses for observing what they testified to may have been more or less limited, yet this affected the weight and not the competency of the testimony and was for the jury. In addition to this, several witnesses testified that there had never been a gorge at the falls before the dam was built. While the flood may have been unprecedented, yet this was some evidence for the jury to consider in determining whether the dam contributed to the gorge which resulted in the plaintiffs’ injury. It was also testified that for some distance above the dam the flood levels before the gorge broke were above the highest on record, increasing as the points were nearer the dam and that below the dam the highest levels were after the gorge broke. This testimony would assist the jury in determining the question whether the point of stoppage of the ice was at the dam, or below, as contended by the defendant.

Without referring further to the testimony, we think the learned judge was right in submitting it to the jury on the question at issue between the parties. If believed, it tended to show that the dam erected by the defendant company in the river contributed materially to the plaintiffs’ injuries. In his opinion, the learned judge apparently thought it was his duty on the motion for judgment non obstante veredicto to determine the question on the preponderance of evidence and to draw inferences from the testimony produced on the trial. In one part of the opinion he says, arguendo: “It certainly can be said that this proposition was sustained by the weight of the evidence;” and in another part of the opinion: “It might naturally be inferred that this condition diverted the water and ice from the channel and caused the injury. Such inference would be much more probable than that the crib dam of the defendant 2,800 feet distant was the producing cause.” Neither of these matters was a question of law, but both were exclusively for the jury to whom they had been submitted and had been found in favor of the plaintiffs. It is exclusively the province of the jury to determine the weight of the evidence as well as to draw inferences from facts shown by the evidence. The court can consider neither on a motion for judgment non obstante.

It was contended by the defendant that there was a large open space between the end of the wall and the beginning of the crib dam, that there was an opening near the beginning of the stone wall, and that these openings in addition to the opening of 1,000 feet between the end of the crib dam and Duffy’s island were sufficient to permit the water and ice to pass through if the gorge had not begun below the falls and extended up to the dam. Many witnesses were introduced on the part of the defendant to sustain this contention and, as has been said, the jury would have been justified in finding that the dam did not contribute to the plaintiffs’ injuries by causing the gorge and the overflow of the island, but that was not the question which the learned judge had before him on a motion for judgment non obstante. He could consider all those matters in passing upon the defendant’s application for a new trial, but not on a motion for judgment notwithstanding the verdict.

It appears from the record that the motion for a new trial made by the defendant has not been disposed of. We will, therefore, not direct judgment to be entered on the verdict, but reverse the court in granting the judgment notwithstanding the verdict, and award a procedendo, so that the court may consider and dispose of the pending motion for a new trial.

The judgment is reversed with a procedendo.


author: Mr. Justice Brown,

text:
    Wagner, Appellant, v. Philadelphia, Bristol & Trenton Street Railway Company.

      Equity — Bills for appointment of receiver — Mortgage—Bondholders— Street railway company — Corporation—Foreclosure suit — Receiver— Costs.

    1. An equity suit by a bondholder averring a right under his bonds and the mortgage securing them to ask for the appointment of a receiver, and for the sale of all of the corporate property, but showing no other right, is a foreclosure suit, whatever the plaintiff may claim to the contrary. Such a bill is demurrable where no copy of the mortgage is appended to or made part of the bill and no reference is given as to the place where the mortgage is recorded. Where an appeal is taken from a decree sustaining a demurrer to such a bill, the appellate court cannot consider the mortgage, although it is printed as an appendix to appellant’s paper-book.
    2. Where a bondholder has improperly instituted a suit in equity, and secured the appointment of receivers, such a suit having been forbidden by the mortgage securing the bonds until certain events had arisen and certain conditions had been complied with, none of which were shown to have happened, the complainant in the suit will be properly charged with its costs when it is dismissed, and also with the legal and other expenses of the receivers whose appointment he had improperly secured.
    Argued Feb. 7, 1911.
    Appeal, No. 174, Jan. T., 1910, by plaintiffs, from decree of C. P. Bucks Co., Oct. T., 1908, No. 2, sustaining demurrer to bill in equity in case of Charles F. Wagner, Jr., George B. Atlee and J. Ernest Richards v. Philadelphia, Bristol & Trenton Street Railway Company and the Union Trust Company of Maryland.
    Before Fell, C. J., Bkown, Elkin, Stewakt and Moschziskek, JJ.
    Affirmed.
    Bill in equity for a receiver with authority to sell corporate property. Before Stout, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree sustaining demurrer to the bill and imposing the cost and expenses of the receivership on the complainants..

      George Quintard Horwitz, with him Layton M. Schoch and Harman Y erkes, for appellant.
    This was a bill for the benefit of bondholders. This was not a bill for the foreclosure of the property: Central Trust Co. v. Chattanooga, etc., Ro R. Co., 94 Fed.. Repr. 275; Atlantic Trust Co. v. Dana, 128 Fed. Repr. 209.
    The authorities go so far as to say that if the bondholder or the trustee do not at once intervene and petition the court to conserve the income of the road for the benefit of the mortgagee, that then there can be no complaint if the railway company shall continue to use the income until there be such intervention: United States Trust Co. v. Wabash Ry. Co., 150 U. S. 287 (14 Sup. Ct. Repr. 86); Ball v. Marske, 202 111. 31 (66 N. E. Repr. 845); Seibert v. Ry. Co., 52 Minn. 246 (53 N. W. Repr. 1151); Galveston R. R. Co. v. Cowdrey, 78 U. S. 459; Gilman v. Illinois & Mississippi Tel. Co., 91 U. S. 603.
    It was error of the court below, either as a matter of law or upon the evidence taken or upon the pleadings, to charge the expenses of the receivership to the appellant Wagner,, but said expenses should be properly charged to the fund in the hands of the temporary receivers: Atlantic Trust Co. v. Dana, 128 Fed. Repr. 209; U. S. Trust Co. v. Wabash Ry. Co., 150 U. S. 287 (14 Sup. Ct. Repr. 86) ; Galveston v. Cowdrey, 78 U. S. 459; Sage v. Memphis R. R. Co., 125 U. S. 361 (8 Sup. Ct. Repr. 887); Winton’s App., 87 Pa. 77; Wills Valley Mining & Mfg. Co. v. Galloway, 139 Ala. 276 (35 So. Repr. 850); Highley v. Deane, 168 111. 266 (48 N. E. Repr. 50); Hopfensack v. Hopfensack, 61 How. Pr. 498; Heise v. Starr, 44 111. App. 406; Espuela Land & Cattle Co. v. Bindle, 11 Tex. Civ. App. 262 (32 S. W. Repr. 582); Battles v. Laudenslager, 84 Pa. 446; Gowan v. Jeffries, 2 Ashmead, 296; Olmstead v. Distilling & Cattle Feeding Co., 67 Fed. Repr. 24; Johns v. Johns, 23 Ga. 31.

      Charles L. McKeehan, with him Joseph S. Clark and Gilkeson & James, for appellee.
    The appointment of receivers upon an ex parte application and without notice to the defendants, was illegal: Verplank v. Ins. Co., 2 Paige, 438; Chicago & Allegheny Oil & Mining Co. v. U. S. Petroleum Co., 57 Pa. 83; Gravenstine’s App., 49 Pa. 310; Gowan v. Jeffries, 2 Ashmead, 296; Bank of Florence v. U. S. Savings & Loan Co., 104 Ala. 297 (16 So. Repr. 110).
    Irrespective of the plaintiff’s method of procedure, his bill of complaint is insufficient in law, because it does not contain a copy of the bond or of the mortgage or a reference to the place where the mortgage is recorded: Haneman v. Pile, 161 Pa. 599; Brown v. Jermyn, 6 Lack. Jurist, 1; Triplett v. Sayre, 3 Dana (Ky.), 590; Hosford v. Johnson, 74 Ind. 479; Knight v. Heafer, 79 111. App. 374.
    The bill is insufficient because it contains no averment that the plaintiff has requested the trustee under the mortgage to act or that the trustee has refused to act or that the trustee has refused or failed in any way to take proper steps for the protection of the bondholders: Farmers’ Loan & Trust Co, v. R. R. Co., 66 Fed. Repr. 169; McGeorge v. Big Stone Gap Imp. Co., 57 Fed. Repr. 262; Com. v. R. R. Co., 122 Pa. 306; Ettlinger v. Rug & Carpet Co., 142 N. Y. 189 (36 N. E. Repr. 1055); General Elec. Co. v. La Grande Edison Elec. Co., 87 Fed. Repr. 590; Consolidated Water Co. v. San Diego, 92 Fed. Repr. 759.
    October 9, 1911:
    The bill is insufficient because the provisions of the mortgage securing the defendant railway company’s bonds (if this court concludes that said mortgage is before it) clearly bar the complainant from maintaining his bill: Mercantile Trust Co. v. Chicago, etc., Ry. Co., 61 Fed. Repr. 372; Chicago & Vincennes R. R. Co. v. Fosdick, 106 U. S. 47 (1 Sup. Ct. Repr. 10); Farmers’ Loan & Trust Co. v. Winona, etc., Ry. Co., 59 Fed. Repr. 957; Central Trust Co. of N. Y. v. Worcester Cycle Mfg. Co., 93 Fed. Repr. 712.
    The costs of an improper receivership, including the receivers’ compensation, should be imposed upon the party who secured the appointment of said receiver, in accordance with the general rule that costs in equity fall on the unsuccessful litigant: Biddle’s App., 19 W. N. C. 219; Hutchinson’s App., 147 Pa. 140; Couper v. Shirley, 21 C. C. A. 288 (75 Fed. Repr. 168); French v. Gifford, 31 Iowa, 428; Hickey v. Parrot Silver & Copper Co., 32 Mont. 143 (79 Pac. Repr. 698); Nutter v. Brown, 58 W. Va. 237 (52 S. E. Repr. 88); Cutter v. Pollock, 7 N. D. 631 (76 N. W. Repr. 235); Cassidy v. Harrelson, IColo. App. 458 (29 Pac. Repr. 525); Hamilton v. Dupre, 103 Ga. 795 (30 S. E. Repr. 248); Myres v. Frankenthal, 55 111. App. 390.
   Opinion by

Mr. Justice Brown,

On September 1, 1908, the Philadelphia, Bristol & Trenton Street Railway Company defaulted in the payment of interest due on its bonds, secured by a mortgage on all of its property, rights arid franchises. The bonds so secured and issued amounted to $650,000 and were of the denomination of $1,000 each. On September 5— four days after the default — Charles F. Wagner, Jr., who was the holder and owner of ten of these bonds, filed a' bill for the appointment of a receiver, with authority, inter alia, to sell, if necessary, all of the mortgaged property, real and personal, and to apply the funds realized from a sale to the payment of the bondholders, creditors and stockholders of the company. A further prayer of the bill was for an injunction to restrain the trustee in the mortgage from instituting foreclosure proceedings. The bill was filed without notice to either of the defendants named in it, and temporary receivers were at once appointed on the application of the complainant. On September 18 — thirteen days after they were appointed— their appointment was vacated upon the petition of the street railway company, the court holding that the appointment had been “ill advised and improvidently made.” There is no assignment of error to this, and we must, therefore, assume that the complainant concedes it to have been right. Subsequently the street railway company answered and the trust company demurred to the bill. The demurrer was sustained, and, in sustaining it, the court directed the complainant to pay the costs and expenses of the temporary receivership.

The first question to be passed upon on this appeal is as to the sufficiency of the bill. Several reasons were given by the court below for sustaining the demurrer to it. The complainant’s averments, upon which he based his right to file it, were that he was a bondholder of the railway company and his bonds were secured by a mortgage of that company; but his bill neither contained nor had appended to it a copy of one of the bonds or of the mortgage, nor was there any reference to the place where the latter was recorded. The court was, therefore, in ignorance of the complainant’s rights under his bonds and the mortgage when called upon to pass on the sufficiency of the bill, which, in effect, is one for foreclosure, no matter how strenuously it is now repudiated as such by the learned counsel who filed it. It is not one of a common creditor asking for the appointment of a receiver for the conservation of the assets of an alleged insolvent corporation, but is that of a bondholder averring a right under his bonds and the mortgage securing them to ask for the appointment of a receiver and for a sale of all of the corporate property. The complainant avers no other interest than that of a bondholder, and relief is claimed under the mortgage. That instrument is referred to in the bill as the foundation of the right to file it, but with no copy of the same appended to or made part of the bill, and with no reference to the place where it is recorded, the learned chancellor below properly held' that he was “utterly at a loss” to determine what plaintiff’s rights were under the bonds and mortgage upon which he relied. Though the mortgage is not a part of the record and cannot be regarded as having been before the court below in passing upon the demurrer, it is printed as an appendix to appellant’s paper-book, and we are referred to certain portions of it as showing the right of complainant to file his bill. This we cannot understand. In passing upon the sufficiency of the bill on the demurrer to it, nothing was before the court below but the bill itself, and, on this appeal from the decree sustaining the demurrer, we can consider nothing that does not appear upon the face of the bill. No better reason could be given why the mortgage should have been made a part of the bill than the references now made to certain clauses in it as establishing the right of the complainant to file his bill. If his right to file the same was under the mortgage — and the bill substantially so avers— such right ought to have appeared affirmatively to the court below by submitting the mortgage as a part of the bill, and the references to it now by counsel for appellant and the printing of it as an appendix to their argument must be regarded as a concession by them that it ought to have been before the court below as a part of the pleadings in the case. Through failure to make it a part of them, the court was unable to pass upon the plaintiff’s right to file his bill, which was the fundamental question in the case, and the demurrer was properly sustained for this reason alone.

After the appointment of the receivers had been vacated they filed their account, charging themselves with the receipts of the road during their management of it and taking credit for certain disbursements. The credits taken for moneys paid out for the operation of the road were not objected to, but exceptions were filed and sustained to the items making up the legal expenses of the receivership. These items were for counsel fees, receivers’ compensation, etc., amounting to $1,561.57, and the second complaint on this appeal is that Wagner, the appellant, was directed to pay them. When the court below passed upon the petition to impose the expenses of the receivership upon him there was before it a clause in the mortgage providing that no holder of any of the bonds secured by it should have the right to institute any proceedings for the appointment of a receiver until certain conditions had existed, no one of which existed when the bill was filed. Among these conditions precedent to the right to file a bill for the appointment of a receiver was one providing that default in payment of interest on the bonds should have continued for six months, that written notice of such default should have been given to the trustee named in the mortgage, and holders of twenty-five per cent in amount of the bonds secured by it, and then outstanding, should have made written request upon the trustee to proceed to exercise the powers granted to it by the- mortgage. This bill was filed four days after default in the payment of interest, and, on the ex parte application of the complainant, without notice to any one, the temporary receivers were appointed. In view of the plain and unambiguous terms of the mortgage, with which the complainant is conclusively presumed to have been familiar, and which he deliberately disregarded in filing his bill, there is no conceivable reason why the costs and expenses of the receivership should be borne by the railway company. On the contrary, costs in equity being always in the sound discretion of the court, there is every equitable reason why the complainant should pay the costs and expenses that resulted from the filing of his bill, which he ought to have known from the terms of the mortgage he had no right to file. If the court below had been informed of the terms of the mortgage at the time the bill was filed, the receivers would not have been appointed. Among the many authorities which sustain the decree imposing the costs and expenses of the receivership upon the complainant are: High on Receivers (4th ed.), sec. 796; Cassidy v. Harrelson, 1 Colo. App. 458; Myres v. Frankenthal, 55 Ill. App. 390; Couper v. Shirley, 75 Fed. Repr. 168; Hickey v. Parrot Silver and Copper Co., 32 Mont. 143.

The assignments of error are overruled and the decree is affirmed at appellant’s costs.


author: Mr. Justice Elkin,

text:
    Dougherty v. Welshans, Appellant.

      Real estate — Adverse possession — Uncultivated lands — Legal title.

    1. Where lands are wild and mountainous, and have never been the subject of an actual pedis possessio, proof of actual possession is not required to show the right of possession, inasmuch as the legal title to such lands draws to it the possession.

      Real estate — Deed—Presumption of grant — Quieting title — Ancient Deeds — Recitals—Ejectment.
    2. After a great lapse of time and a series of circumstances disclosing the enjoyment of an unchallenged title to land during such period, the courts will presume whatever grant may be necessary to quiet the title; and such presumption may be invoked not only against a mere •intruder, but also against one claiming under color of title.
    3. If an outstanding title in a third party is set up as a defense in an action of ejectment, it must be a present subsisting one, otherwise it will be presumed to have been extinguished by a conveyance to the one who has asserted title to and exercised rights of ownership over the land for a long period of years.
    4. Recitals in ancient deeds, where possession accompanies the deed, are prima facie evidence of the facts recited even against third persons.
    5. In an action of ejectment it appeared that the plaintiff’s predecessor in the line of the record title had purchased the land sixty-years before the institution of the suit at an orphans’ court sale for the payment of a decedent’s debts. In the deed from the administratrix to the purchaser there was a'recital that the title of the original patentee from the state “by sundry conveyances became vested in” the decedent. There was nothing on the record and no evidence otherwise to show how the title had passed from the original patentee to the decedent. The defendants in the ejectment claimed title under a tax sale made years after the date of the deed. Held, (1) that the deed was admissible in evidence; (2) that the recital in the deed, while not conclusively showing title in the decedent, was evidence in connection with the other facts and circumstances to be considered as a foundation for the presumption of a grant to the decedent; (3) that the recital could be considered as evidence to raise a presumption, although by the form of its offer it was to show title in the decedent.

      Ejectment — Tax title — Unseated lands — Seated lands.

    6. In an action of ejectment a verdict and judgment for plaintiff will be sustained, where the plaintiff produces evidence to show that he had paid the taxes upon the mountain land in controversy assessed on the seated list for 1891, and that the lands had been assessed on the seated list for more than twenty years prior to that time, while the defendants show that they had bought the lands at a tax sale upon taxes assessed against them on the unseated list for 1891, there being no satisfactory evidence to show how they came to be assessed as unseated lands in that year.
    Argued Feb. 13, 1911.
    Appeal, No. 312, Jan. T., 1910, by defendants, from judgment of C. P. Lycoming Co., Sept. T., 1909, No. 2, on verdict for plaintiff in case of W. A. Dougherty v. William T. Welshans et al.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Ejectment for 430 acres of land in Limestone township. Before Hart, P. J.
    At the trial it appeared that the lands had been warranted to one Jacob Sailor, and subsequently, on July 2, 1795, granted by the commonwealth by patent to one John Kantner. There was then a break in the chain of the record title until May 3, 1849, when Margaret Sharp, as administratrix of Anthony Sharp, deceased, conveyed the lands to one Mathias Baier. The lands had been sold under an order of the orphans’ court to pay the debts of Anthony Sharp. The deed from the administratrix to Baier contained the recital that the title of John Kantner “by sundry conveyances became vested in Anthony Sharp.” The plaintiff claimed under a direct record title from Baier. The defendants claimed under a sale for taxes assessed in 1891.
    At the trial the following offer was made:
    Counsel for plaintiff offer in evidence deed, Margaret Sharp to Mathias Baier, dated May 3, 1849, for all that certain tract of land situate in Limestone township, bounded and described as follows: “Beginning at a post, thence by land of Jacob Sailor, south sixty-five degrees east, 368 perches to stones; thence by vacant lands north sixty-five degrees east, 200 perches to a pine; thence by land of Thomas Reed and surveyed land, north sixty-five degrees west, 368 perches to a post; thence by Nicholas lands south sixty-five degrees west, 200 perches to the place of beginning, containing 433 and % acres and allowance, being the same tract of land.”
    Counsel for defendants object to counsel for plaintiff reading the contents of this deed to the court and jury until the deed has been admitted by the court, and request that counsel for plaintiff now state the purpose of offering this deed.
    To which counsel for plaintiff reply that this deed is offered for the purpose of showing a conveyance from Margaret Sharp to Mathias Baier for the John Sailor warrant; also for the purpose of showing title in Anthony Sharp, deceased, by the'following recitals in said deed: “which said tract of land was patented by the Commonwealth of Pennsylvania by patent dated the 2nd day of July, 1795, and enrolled in Patent Book No. 28, page 396 unto a certain John Kantner and by sundry conveyances became vested in said Anthony Sharp, deceased, and by virtue of an Order of the Orphans’ Court of Lycoming County, sold by public outcry on the 28th of April, 1849, to said Matthias Baier, this sale so made was confirmed by said Court as by reference to said proceeding will fully appear.”
    Counsel for defendants object to the deed now offered:
    1. Because no title to the warrant in question has been properly shown out of the commonwealth.
    2. Because the deed offered in evidence is not competent for the purpose for which it is offered.
    3. Because the deed purports to be made by an administrator under authority of the orphans’ court of Lycoming county, and cannot be introduced in evidence until proof of authority by the orphans’ court has first been introduced.
    4. Because there is no title shown in Anthony Sharp, the person for whom Margaret Sharp, the grantor, was administrator.
    5. Because incompetent and irrelevant.
    The Court: Before this deed is admitted plaintiff should shew title in Anthony Sharp.
    To which suggestion by the court counsel for plaintiff reply that the only way they can show what is intimated by the court is by the recital in the deed; that that is the best evidence they can give and is the strength of plaintiff’s title; that plaintiff has been unable to find the title deed and the next best evidence is the recital in the deed and for that purpose plaintiff offers the deed in evidence.
    Defendants further object to the admission of this deed because plaintiff does not offer the precedent conveyance from Kantner or Sailor, or any of the intermediate steps, by which title became vested in Anthony Sharp, if it became vested in him at all, but simply offers a deed which says “by virtue of-sundry conveyances became vested in Anthony Sharp, deceased,” which is a common thing when people have not a good title, and that titles cannot be manufactured by inserting in a deed that title was vested “by virtue of sundry conveyances.”

      To which objection counsel for plaintiff reply that this is the title upon which plaintiff and his predecessors have relied for years and years, and that the muniments of title precedent have been lost and the only record plaintiff has is the citation in this deed now offered, which was made in 1849.
    The Court: In order that there may be no delay in this matter, I will overrule these objections for the present and admit the deed in evidence; to which the defendants except and at their request an exception is noted and bill sealed. [1]
    The court charged in part as follows:
    [Now we say to you these various conveyances have vested in this plaintiff a sufficient paper title upon which this action of ejectment may be sustained, and that he would be entitled to recover in this action, were it not for the defense set up here showing, or tending to show, that this title, prior to the time that it became vested in William A. Dougherty, was divested by a tax sale.] [4]
    Plaintiff presented this point:
    4. That if the jury are satisfied from the evidence in this case that the land shown on the seated list to be taxed in the name of John B. Dougherty, David Dougherty, William Kilday and D. and H. Dougherty, is the same land as that taxed in the unseated list in the name of the said John Sailor warrant, then the plaintiff is entitled to recover. Answer: This point is affirmed. [5]
    Verdict and judgment for plaintiff. Defendants appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2) refusal of binding instructions for defendant; (4, 5) above instructions, quoting them.

      W. C. Kress and Seth T. McCormick, for appellants.
    A deed from one who is not shown to have had either right, title or interest in the land, or possession thereof, is not admissible in evidence to show title in the grantee: Bonafon v. Peters, 134 Pa. 180; Warner v. Henby, 48 Pa. 187; Crist v. Boust, 26 Pa. Superior Ct. 543.
    The recital should not have been considered: Reinboth v. Zerbe Run Imp. Co., 29 Pa. 139; Pox v. Thompson, 31 Pa. 172; Olewine v. Messmore, 128 Pa. 470; McGrew v. Harmon, 164 Pa. 115; Dorff v. Schmunk, 197 Pa.- 298; Bright v. Allan, 203 Pa. 386; Lake Winola Assn. v. Mott, 1 Pa. Superior Ct. 304.
    We believe that an examination of all of the Pennsylvania cases, in which the subject of the presumption of a grant has been discussed by the courts of last resort, will show, either that the principle stated was not essential to a recovery by the plaintiff, or that, where a recovery was allowed under such circumstances, the defendant was a mere intruder without color of title: Galloway v. Ogle, 2 Binn. 468; Garwood v. Dennis, 4 Binn. 314; Taylor v. Dougherty, 1 W. & S. 324; Kingston v. Lesley, 10 S. & R. 383; Baskin v. Seechrist, 6 Pa. 154; Garrett v. Jackson, 20 Pa. 331; Fox v. Thompson, 31 Pa. 172; Warner v. Henby, 48 Pa. 187; Burke v. Hammond, 76 Pa. 172; Carter v. Tinicum Fishing Co., 77 Pa. 310; Brown v. Day, 78 Pa. 129; Wallace v. Fourth Presbyterian Church, 111 Pa. 164; Townsend v. Boyd, 217 Pa. 386.

      James B. Krause and C. LaRue Munson, for appellee.
    A tax sale is void if the taxes were actually paid: Montgomery v. Meredith, 17 Pa. 42; Brown v. Day, 78 Pa. 129.
    A naked possession is sufficient to recover in ejectment against one who enters afterwards without title: Shumway v. Phillips, 22 Pa. 151; Hoey v. Furman, 1 Pa. 295; Smith v. Lorillard, 10 Johns. 338.
    The case was for the jury: Williams v. Hillegas, 5 Pa. 492; Taylor v. Dougherty, 1 W. & S. 324.
    Recitals of title in a deed more than thirty years old, where possession accompanied the deed, are prima facie evidence against persons claiming by title under the grantor previous to such deed: James v. Letzler, 8 W. & S. 192; Olewine v. Messmore, 128 Pa. 470.

      October 9, 1911:
    The plaintiffs and their predecessors having claimed the land, paid taxes, etc., for so long a time without an adverse claimant, a presumption of title was established: Hastings v. Wagner, 7 W. & S. 215; Brown v. Day, 78 Pa. 129; Carter v. Tinieum Fishing Co., 77 Pa. 310; Fox v. Thompson, 31 Pa. 172.
   Opinion by

Mr. Justice Elkin,

The question upon which this controversy depends is whether the deed of the administratrix of Anthony Sharp to Mathias Baier was admissible in evidence. No paper title was shown in Anthony Sharp who at the time of his death in 1847 was a resident of Schuylkill county, but his widow as surviving administratrix presented her petition first to the orphans’ court of that county and subsequently to the orphans’ court of Lycoming county asking leave to sell the real estate of decedent for payment of his debts. This petition recited the necessary jurisdictional facts and described the John Sailor warrant patented to Kantner in 1795 as part of the real estate of which Anthony Sharp died seized. The sale was ordered to be made and pursuant thereto the property was subsequently sold at public outcry to Mathias Baier for $346.46. The sale was confirmed by the court and the deed in question here was executed and delivered in compliance with the terms thereof in 1849. This occurred more than sixty years ago and the appellee holds an unbroken chain of title from that time to the present. The offer of this deed in evidence was objected to upon the ground that no title was shown in Anthony Sharp, and, further, that there was no offer to prove the precedent conveyances, if any, connecting the title of Kantner, tiie patentee, with that of Sharp, the decedent. The land in question was warranted in the name of John Sailor in 1793 and patented to John Kantner in 1795. The plaintiff at the trial in the court below first offered in evidence the patent to Kantner and then offered the deed from the administratrix of Anthony Sharp to Baier which is the one to which objection is made. There is nothing to connect the grant to Kantner with the title in Sharp except the record of the . proceedings in the orphans’ court above referred to and the recital in the deed made pursuant thereto. There is an unbroken chain of title from Mathias Baier in 1849 to W. A. Dougherty, the appellee in the present case. Moreover, the title became vested in Daniel Dougherty, the ancestor of appellee, in 1857, and has remained in the Dougherty family from that time to the present. It was wild uncultivated mountain land but possession such as could be taken of such lands was taken by the Dougherties. Logs were cut, a small clearing made, some fences at one time built, taxes were assessed and paid for a long period of time, certainly extending back to 1870, as shown by the testimony and presumptively for years prior to that time. Daniel B. Dougherty testified that he was familiar with the John Sailor warrant and remembered when his father purchased it in 1857. He helped to make a survey and run certain lines of the tract in the early sixties, a few years after the purchase by his father. They cut some logs from the woodland and raised rye in an old field prior to 1862. These facts show that the elder Dougherty held a deed and claimed title to the land at that time and had taken actual possession soon after his purchase. The possession of the Dougherties was never disputed and no one has claimed any adverse title until appellants set up the tax title upon which they stand. The record is silent as to the Kantner title from 1795 to 1849 when the proceedings in orphans’ court and the deed to Mathias Baier recite the facts that by sundry good conveyances it became vested in Anthony Sharp and that he died seized of the same. It was sold under decree of court as the property of Sharp and for the payment of his debts. The highest bidder was awarded the property upon payment of the purchase price and the title thus conveyed has remained unchallenged for more than sixty years by anyone claiming adversely from or through John Kantner. No proof was offered to show that Anthony Sharp died in actual possession of the land, but as we view the record this was not imperatively required. The lands were wild and mountainous and at that time no doubt had never been the subject of an actual pedis possessio. In such cases the rule does not require proof of actual possession: Taylor v. Dougherty, 1 W. & S. 324; Foust v. Ross, 1 W. & S. 501. As Chief Justice Lewis said in Hole v. Rittenhouse, 25 Pa. 491: “If any principle in the law of Pennsylvania can be regarded as well settled by argument and authority, it is that which affirms that the legal title to uncultivated lands draws to it the possession, and that this possession is to be deemed actual, for all purposes of remedy. . . .” If the legal title was in Anthony Sharp it passed to Mathias Baier under the sale authorized by the orphans’ court for the payment of debts, and the lands being unseated possession would be deemed actual for the purposes of remedy in the holder of the legal title. But it is said appellee failed to prove legal title in Anthony Sharp, which is true. The answer to this position is that under the facts disclosed by the orphans’ court record, the deed in question here, and other circumstances of the case, the presumption is that Anthony Sharp at the time of his death was seized of the title to this land. This presumption stands as prima facie evidence of the fact until overcome by countervailing proof which was not attempted. The claim of title in Anthony Sharp is much strengthened by the proceeding in the orphans’ court, the regularity and validity of which have never been questioned. Of course a decree of court cannot breathe life into a title that never existed, but all presumptions are in favor of judicial proceedings. These presumptions when not rebutted make out a prima facie claim of title in the person asserting the same, especially when applied to ancient transactions, which have not been questioned for a long period of years. The claim of title in Anthony Sharp has been spread on record since 1849 when the land in controversy was sold for the payment of his debts. No one has ever appeared to contest the title so asserted, nor to question the proceeding under which the sale was made. Under these circumstances the law will presume the facts to be as averred in the record upon which the judicial proceeding was founded. Of course, this is only a presumption subject to rebuttal by proof of facts sufficient to overcome it, but nothing of this kind appears in the present case. We think the deed was properly admitted.

Again, we have concluded after a careful consideration of the whole record and an exhaustive examination of the authorities that the doctrine of a presumptive grant applies to this case. The principle has been recognized and sustained by our courts since the early days of the commonwealth. It has been approved in a long line of cases and the only question for decision here is whether it should be applied under the facts of the present case. An examination of the following cases will show not only the foundation of the rule but the extent and limitation of its application: Galloway v. Ogle, 2 Binn. 468; Taylor v. Dougherty, 1 W. & S. 324; Kingston v. Lesley, 10 S. & R. 383; Hastings v. Wagner, 7 W. & S. 215; Garrett v. Jackson, 20 Pa. 331; Fox v. Thompson, 31 Pa. 172; Carter v. Tinicum Fishing Co., 77 Pa. 310; Brown v. Day, 78 Pa. 129; Wallace v. Presbyterian Church, 111 Pa. 164; Townsend v. Boyd, 217 Pa. 386. The contention of appellants is that the presumption of a grant can only be invoked' against an intruder without color of title. While it is true that in many of the cases in which the presumption of a grant was held to apply the defendants were intruders without color of title, nothing said or decided by this court warrants the conclusion that the rule is thus limited in its application. No case has been called to our attention nor have we discovered any after exhaustive examination that so holds. The exact question does not seem to have been decided, but many judicial expressions found in the decisions in which the rule was discussed clearly indicate that no such limitation was intended. As far back as Kingston v. Lesley, 10 S. & R. 383, Chief Justice Tighlman said- “The rational ground for presumption is, when the conduct of the party out of possession cannot be accounted for, without supposing that the estate has been conveyed to the one who is in possession.” In Taylor v. Dougherty, 1 W. & S. 324, above cited, Chief Justice Gibson in discussing the question, said: “The execution of a deed is presumed from possession in conformity to it for thirty years; and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to determine.” The same chief justice, in Hastings v. Wagner, supra, remarked: “These presumptions conduce to repose; and there is a growing tendency to encourage them not only here but elsewhere.” Mr. Justice Sergeant also observed: “The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined until time has involved them in uncertainty and obscurity, and then ask for an inquiry:” Foulk v. Brown, 2 Watts, 209. It was said in Baskin v. Seechrist, 6 Pa. 154, that: “It is true that a defective claim of title may be amended by presuming a conveyance from one shown to have title, where the presumptive grantee has exercised, for a long course of years, such acts of dominion over the lands as can only indicate a claim of beneficial ownership unchallenged by any counterclaim of the supposed grantor.” In Warner v. Henby, 48 Pa. 187, Mr. Justice Thompson, in discussing presumptive grants, said: “ These presumptions, when ripened by time, and the silence of the warrantee, supply the place of a conveyance when there have been continuous acts of ownership on the part of the claimant. That period is not less than twenty-one years.” Mr. Justice Clark in Wallace v. Presbyterian Church, supra, in discussing the necessity of the rule as a security of title, said: “Witnesses will die, papers will be lost or destroyed, and the exact proof of an ancient transaction thereby often becomes exceedingly difficult, sometimes impossible. The rule of law which authorizes the presumption is therefore founded' in necessity and should be applied in all proper cases.” In a late case, Townsend v. Boyd, above cited, our Brother Potter expressed the view of this court in the following language: “After a great lapse of time and a series of circumstances disclosing the enjoyment of an unchallenged title during such period, the courts will presume whatever grant may be necessary to quiet the title.” In that case the right to invoke the presumption against one claiming under color of title, indeed an ancient outstanding title, was expressly recognized. We there adopted the view of Chancellor Kent to the effect that if an outstanding title in a third party is set up as a defense in an action of ejectment, it must be a present subsisting one, otherwise it will be presumed to have been extinguished by a conveyance to the one who has asserted title to and exercised rights of ownership over the land for a long period of years. There is nothing said in any of these cases, or in any other case in which the rule has been discussed, sufficient to warrant the deduction that the presumption of a grant can only be invoked against an intruder without color of title. The presumption .depends upon the facts of each particular case and not upon the kind or character of title set up as a defense. In the present case the facts all point in one direction, and not a single fact indicates anything to the contrary. Anthony Sharp at the time of his death claimed this land. It was sold for the payment of his debts. Record notice was given that the purchaser at that sale took title from the estate of Sharp who held under claim of title from Kantner by sundry conveyances. That purchaser and those holding under him have had the constructive or actual possession since 1849. The Dougherties have paid the taxes assessed against it for a period of forty years at least. They have exercised dominion over it for more than fifty years. During all these years no one asserted an adverse claim of title under John Kantner, and no one asserts such a claim in the present case. There is a break in the chain of title from Kantner to Anthony Sharp, but from the time his title passed to Mathias Baier to the present, the successors in title have stood upon this ancient title unchallenged by any adverse claimant. If anyone else ever claimed adverse title under John Kantner, and there is nothing to even remotely indicate that such a claim was ever made, he hauled down his flag and fled the field long ago. The presumptions are all against any such claim and in favor of those asserting the Sharp title under the orphans’ court sale in 1849. The elder Dougherty purchased this title in 1857 and the Dougherty family have relied on it ever since. They have been in the actual or constructive possession during all these years. They have exercised dominion over the land to the exclusion of others and have borne their share of the public burdens by the payment of taxes assessed against it. No one else has done any of these things. Surely under such circiimstances a conveyance to Anthony Sharp, under whom the Dougherties claim, will be presumed. The facts of this case bring it within the very spirit and purpose of the rule.

But it is contended that the recital in the deed from the administratrix of Anthony Sharp to Mathias Baier was too general in its terms to be evidence of a conveyance from John Kantner, and that the learned trial judge committed error in admitting it. We have already said that the deed was properly admitted in evidence, but did not discuss the effect of the recital. The general rule is that recitals in a deed are evidence against the grantor and all persons claiming under him, but are not evidence against a stranger, or other person claiming under a title derived from the grantor before the deed containing the recital. This rule which applies to recent conveyances has a well-established exception in the case of an ancient deed. Recitals in ancient deeds, where possession accompanies the deed, are prima facie evidence of the facts recited even against third persons. James v. Letzler, 8 W. & S. 192. The rule as applied to ancient deeds generally is not disputed, but it is contended that the recital in the deed in question here is not specific enough to be admitted as evidence of the fact. The recital is that- the title of John Kantner “by sundry conveyances became vested in Anthony Sharp.” It is argued that to make such recitals competent evidence they must contain the names of the parties and give the dates of the lost deeds, also that there must be proof of the existence and loss of such deeds before offering the deed containing the recital. If such were the rule it would be almost impossible to meet its requirements in offering ancient deeds in evidence. As for instance, in the present case Mathias Baier took title in 1849 and there is perhaps no living person who could be called as a witness to testify that he knew of the existence of prior conveyances, or that they had been destroyed or lost. In many instances such a rule would place an impossible burden upon the holder of an ancient title, and one which might result in doing great injustice. The law only requires the production of the best evidence possible under the circumstances and never demands an impossibility. The rule as to the admission of ancient deeds and papers in evidence is one of necessity and grows out of the recognized difficulty and frequently the impossibility of proving the actual facts connected with old transactions. It is a wholesome rule and should not be frittered away by technical refinements in its application. The position of appellants in this respect loses sight of the real question involved. It was the deed which was offered in evidence to which objection was made. We have already said that the deed was properly admitted as a link in the chain of title. When admitted it was proper to read its contents for the information of the court and jury, and this necessarily included the recital. The recital is only evidence of the facts recited. When the facts are specifically recited, giving names of parties, dates of deeds, and other information in detail, the evidential value of the recital is greater and more conclusive. We do not deem it necessary to put this case on the ground that the general recital in the Mathias Baier deed was sufficient to conclusively show the vesting of the John Kantner title in Anthony Sharp. It was some evidence of it and taken in connection with all the other facts and circumstances laid the foundation for the presumption of a grant to Anthony Sharp. We think it was proper for this purpose at least, and in the disposition of the present case it is not necessary to go further. But it is argued that it was not offered for this purpose and therefore cannot be so considered. This objection is purely technical and does not go to the merits on the question of the admissibility of the deed containing the recital. While there is force in the argument we do not think it is necessary to reverse the judgment on this narrow and technical ground. The offer was for the purpose of showing a conveyance from the administratrix of Anthony Sharp to Mathias Baier and by the recital to show title in Anthony Sharp. We have already decided that the deed was properly admitted as a link in the chain of title and when admitted it could be used for any evidential purpose. It did show a conveyance to Mathias Baier and this was one purpose of the offer. The recital was some evidence of title in the estate of his grantor and as such could be offered and considered in connection with other facts tending to establish that title. It would be sticking in the bark to hold that the recital, although otherwise admissible, was improperly admitted because the offer did not specifically state that it was to be used in connection with other facts to lay the foundation of a presumptive grant. It was offered as evidence of title in Anthony Sharp, whether by presumptive grant or otherwise was not stated. The recital being part of the contents of an ancient deed it was at least an item of evidence in support of the offer.

The fourth assignment raises a nice question and one not free from difficulty. The instruction complained of was: “Now we say to you these various conveyances have vested in this plaintiff a sufficient paper title upon which this action of ejectment may be sustained, and that he would be entitled to recover in this action, were it not for the defense set up here showing, or tending to show, that .this title, prior to the time that it became vested in William A. Dougherty, was divested by a tax sale.” It is argued that this was a binding instruction to the jury in favor of plaintiff upon all questions of evidence in the case and left nothing open except the validity of the tax title held by appellants. In this connection it is not improper to remark that in law and in fact this is the only question involved in real controversy here. More than seventy years ago Chief Justice Gibson, in discussing the effect of evidence in a similar case, said: “On every principle of authority and reason, this was sufficient not only to be left to'the jury, but in the absence of conflicting evidence, to command a verdict:” Taylor v. Dougherty, 1 W. & S. 324. To instruct the jury that under the evidence the plaintiff is entitled to recover ünless the validity of the tax title set up is established, is a very mild form of “commanding” a verdict. The jury were instructed that the action may be sustained and that the paper title was sufficient to entitle plaintiff to recover. All of which is true when considered in connection with other facts and circumstances of the case. In other parts of the charge the legal status of the title relied on by appellee was more accurately and fully stated. There was no conflicting evidence relating to the title of appellee. Appellants did not undertake to set up an outstanding ‘title in anyone claiming under John Kantner. They relied on their tax deed and contended that appellee had failed to show a good title by reason of the missing link. The learned trial judge thought the evidence was sufficient to account for the missing link and so do we. The jury were so instructed. Under all the facts we have concluded that the fourth assignment does not constitute reversible error.

The fifth assignment relates to the affirmation of the fourth point submitted by counsel for plaintiff at the trial. By affirming this point the jury were instructed that if they found from the evidence the land in dispute was taxed in the name of the Dougherties on the seated list for 1891, and was the same land as that taxed on the unseated list in the name of the John Sailor warrant, the plaintiff would be entitled to recover. This point standing alone might be confusing and even misleading, but when taken in connection with the whole eharge as well as the other points affirmed, we cannot believe the jury were misled by it. It was intended to and did narrowly and sharply define the real question in the case. Appellants relied on a tax title derived from the sale of the land for taxes assessed against the John Sailor warrant on the unseated list for 1891. If this was a valid tax title appellants could hold under it no matter how perfect or imperfect the paper title of appellee might be. Appellants did not claim under John Kantner nor did they set up any adverse outstanding title in conflict with that of appellee. They simply relied on their tax deed. If the tax title was valid the land was theirs; if invalid, it did not belong to them. This was the whole question. In this connection the remarks of Mr. Justice Woodward in Fox v. Thompson, 31 Pa. 172, are pertinent: “If he has title, he should have permitted the prima facie case, presented by the plaintiffs, to have been received by the court, and then shown his own right. The question raised upon the plaintiff’s title could have been contested with better advantage, after showing his own, if he had any to show, than upon the competency of the evidence.” The position of appellee was that the tax title set up by appellants was void because these same lands were taxed on the seated list to the Dougherties in 1891 and the taxes so assessed were paid. If so, no valid title passed under the tax sale. The evidence if believed was ample to sustain such a finding. The Dougherties did pay taxes upon mountain land assessed on the seated list for 1891. These lands had been assessed on the seated list for more than twenty years and why they were also assessed on the unseated list for 1891 does not satisfactorily appear. All these facts were for the jury. It was a question of identifying the lands and the jury were so instructed. This was the real question in the case and it was carefully submitted. All other questions were but incidental. The jury found in favor of appellee upon ample evidence.

There are some technical errors in this record, but as we view it appellants had a fair trial on the merits of the case and the matters complained of in the assignments of error do not affect the real question in controversy which is the validity of the tax title. On this question the jury found against appellants and this should be an end of the controversy.

Judgment affirmed.