Watson v. Jones , 1877 Pa. LEXIS 232 ( 1877 )

Mr. Justice Gordon

delivered the opinion of the court, October 1st 1877.'

The treasurer’s deed, for tract No. 768, to the commissioners of Warren county, having been lost, its delivery and contents were properly proved by the books found in the custody of the proper officers. In the case of Halsey v. Blood, 5 Casey 319, the minute of acknowledgment, made by the prothonotary, -was held to be competent for such purpose, but this evidence would certainly not be superior to that furnished by the records kept by the officers who made the sale. It is urged, however, that the treasurer’s sale-book offered was not competent, forasmuch as it contained but transcriptions of the sale lists, and was therefore not an original document. But we do not so regard the matter. The book appears to have been kept by Thomas Clemons, the treasurer for the year in which .this land was sold, and admitting that it contained but transcriptions from his temporary lists, yet* being made by himself, no doubt in order to put the evidence of his own work in a safe and convenient form, quoad that work, however it might be as to that of others found with it, it must be regarded as original evidence. As well might objection be made to the continuance docket, found in the prothonotary’s office, because many of the entries therein contained have been transcribed from the court minutes and appearance docket. Neither can we treat with more favor the exception to the deed of the county commissioners to Alexander. Technically there can be no deed without a seal, for it is the seal which makes the deed; nevertheless we well know that a valid conveyance of land may be made without it. As- long ago as McDill v. McDill, 1 Dall. 66, it was held, that the signing of a deed was the material part of its execution, and that the act of sealing had become a mere form. And in Huston v. Foster, 1 Watts 477, an objection to a commissioners’ deed, that it was sealed with the private seals of the commissioners and not with the corporate seal, was not sustained. It would be difficult, however, to point out any substantial difference between the private seals of the officers mentioned in the above case and no seals at all, for they certainly were of no significance whatever, in passing title to county lands. Indeed, it is apparent from the opinion, that the matter was so ruled in order to avoid a technicality the maintenance of which would have been pi’oductive of more harm than good. Following the same line of thought thus indicated, and we cannot but approve of the action of the court in avoiding a barren technicality by permitting the sealing of the deed by the county commissioners at the time of trial.

On the theory of the dividing line between tracts 4822 and 4824, we must dissent from the court below. As these surveys were made on warrants of the same date for the same party (the Holland Land Co.), -were returned at the same time, and were, as is conceded, chamber surveys, we can give neither precedence from an apparent difference of time in location. The problem then is, to find the dividing line between two tracts of land, which as to their exterior lines, are to be treated as a single block. Were it not for the adoption of the pine of the Mead survey as the southwest corner of 4822, our task would be a simple one; for that out of the way, the black oak, the common corner for Nos. 4837, 4819 and 4888, adopted for 4824, would be the only original corner found on either tract and must govern the whole survey. Wo would have then, but to run south from this black oak on the line of No. 4838, 265 j®0- rods, and a line wrest from the point thus reached would definitely resolve the question. In such case it is obvious neither the interference of the Mead survey nor the calls on the west could in anywise influence the matter, for we would have to do only with the position of the division line of the two lots. Having, however, the white pine of the Mead surveys as the southwest corner of 4822, as well as the black oak corner of 4824, we have two fixed original marks found upon the ground by which the block must be governed.

The court below rejected the black oak as a dominating mark, and adopted the white pine, instructing the jury that from this point the northwest line of 4822 was to be run, and the distance 583 rods on this line would reach and fix the northwest corner of that tract, from which point the division-line was to be determined by running due east to the western boundary of 4838. But why not as well determine this line by running 265 rods south from the black oak ? The only reason given by the court for its preference is that the patent for tract No. 4824 indicates, as the initial point of its description, the post at the northeast corner of the Mead survey, No. 5250 ; that is, at the end of the lino 583 rods northeast from the pine. But this is not sound; for the patent but follows the survey. If there is an error in the survey, it is repeated in the patent; and at all events, the marks upon the ground must control as well the description found in the patent as that found in the survey. Suppose, however, we adopt the patent description, and, commencing at the post, we travel around the tract in due order; where do we find the point from which to project the closing line? Certainly the patent fixes this point 265 rods south of the black oak; but if from that point we run the line on the course called for, we shall still strike the Mead line some ninety or one hundred rods southwest of the initial post corner, thus completely inverting the result arrived at by the court. But neither will this do, for it adopts the black oak corner to the exclusion of the pine.' It is thus apparent that the true solution of this question is to be found in the adoption of both these corners; remembering, at the samé time, the inflexible rule that courses, calls and distances must give way to the marks found on the ground. Proceeding on this theory, we ascertain the northwest corner of 4822 and the southwest corner of 4824, by running the line north 45° east, 583 rods from the pine; and we find the southeast corner of the one and the northeast corner of the other at the end of the line, 265fV rods south of the black oak, then a protraction from the one point to the other gives us the required division-line. We have not, in this discussion, considered the subdivision surveys made by Dale for the Lancaster Land Company, as they in no manner affect the lines of the warrants in controversy.

The judgment of the court below is reversed, and a venire facias de novo is awarded.