Irwin v. Patchen , 164 Pa. 51 ( 1894 )

Opinion by

Mb. Justice Green,

' We think it very clear that the will of Mary A. Irwin did not work a conversion of the land therein described as situate in the borough of Burnside and containing about 43 acres. The clause of the will which devises this land is as follows: “ I own a piece of land in Borough of Burnside, as a deed in my possession will show, from Aaron W. Patchen and wife, containing about forty three (43) acres, bought on the 9th day of November, 1883. This piece of land I want disposed of as follows : the valuation of it when sold is to go to my brother Orin G. Irwin, and my cousins, Harriet Elizabeth Irwin, Daniel Wilson Irwin and William Paul Irwin to share and share alike; and it is my sincere wish and desire that this piece of land be not sold until William Paul Irwin become fourteen years of age, and not then unless three fourths of the heirs, together with the executors, are agreed. ... In case of the death of any of the cousins, their share or shares of the piece of ground in Burnside Borough is to go to whichever one of their parents that may be living and if both be living they are to share it equally.”

In the case of Hunt and Lehman’s Appeal, 105 Pa. 128, it was said by Mr. Justice Paxson, delivering the opinion: “ It ought to be settled by this time that, in order to work a conversion, there must be either: 1st. A positive direction to sell; or, 2d. An absolute necessity to sell in order to execute the will; or, 3d. Such a blending of real and personal by the testator in his will, as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the! said fund as money.”

In Perot’s Appeal, 102 Pa. 235, the words of the will were: “ I further authorize and empower my said executors to make sale in their discretion of any real estate for the purposes of this trust and to make deeds to the purchaser or purchasers thereof without any liability on the part of the purchasers to see to the application of the purchase money.” We said: “ This is a mere discretionary authority and under the authorities doeá not work a conversion: Peterson’s Appeal, 7 Norris, 397 ; Jones v. Caldwell, 1 Outerbridge, 42.”

In Stoner v. Zimmerman, 21 Pa. 394, the words of the will were: “ I direct that my executors either sell all my real estate (which I hereby fully empower them to do, and convey in fee simple), and divide the amount arising therefrom between, my wife, etc., or to have it proportioned and valued by three judicious and disinterested men, so as to accommodate as many of my children as it will allow of, if it be their wish at that time to have it done so.” We said of these words, Knox, J.: “ To convert land into money, the direction to sell must be absolute and unconditional. In this case, the sale by the terms of the will depended upon the choice of the widow and children of the testator. In the absence therefore of a positive direction to sell, the estate retained its original character as land, and so passed under the will.” 'J

In Anewalt’s Appeal, 42 Pa. 414, we said, Thompson, J.: “ The following, taken from the books, may be received in the aggregate, as a full statement of every requirement urider the doctrine: ‘ To establish a conversion the will must direct it absolutely or out and out, irrespective of all contingencies'.’

“ ‘ The direction to convert must be positive and explicit, and the will, if it be by will, or the deed, if it be bjr contract, must decisively fix upon the land the quality of money.’’ ‘It must be an imperative direction to sell; ’ ” citing a number of authorities. Proceeding, Justice Thompson further said: “ The sale directed here depended upon several contingencies; in such case the rule is that no conversion results from the law, and does not take place until it is actually made.”

Recurring now to the language of the will we are considering, it is to be observed that there is no direction to sell given to any person. The only mode in which a direction to sell can be deduced from the words of the devise is by implication. The only source of the implication is the words “ The valuation of it when sold is to go to my brother,” etc. Sold when ? Sold by whom? Sold in what circumstances and upon what occasion? A sale might be made by the devisees jointly, consistently with this language, but there are no words conferring upon them such a power. There is absolute^ nothing upon which to found any implication that the executors were to sell or might sell. The only connection in which they are even alluded to is in a prohibition of any sale, “ until after William Paul Irwin becomes fourteen years of age, and not then unless three fourths of the heirs, together with the executors, are agreed.” The only function possessed by the executors is a right to agree to a sale conjointly'with three fourths of the heirs. But if that proportion of the heirs do not agree, the executors have no function at all. They could not sell if they desired to, because the will, instead of permitting them to sell of their own motion, positively prohibits them from selling without the consent of three fourths of the heirs, and does not authorize them to sell even in that event. In addition to the absence of any order to sell, the will particularly directs that there shall be no sale until at least three contingencies have happened, all of which are of uncertain character. (1) William Paul Irwin must have attained fourteen years of age. (2) Three fourths of the heirs must have agreed to the sale, and (3) the executors must also agree. Who the persons are who are heirs, is altogether indeterminate. There are four persons who are devisees of this land. Whether the testatrix considered that these were her heirs because they were her devisees of this land, we cannot tell. It might be so or it might not. They were a brother and three cousins. She names in her will as legatees an uncle Matthew Irwin, an aunt Susan Eason, and she refers to parents of her cousins who are devisees, and gives them the interests of the cousins in the “ piece of ground in Burnside Borough,” in the event of the death of the devisees or any of them. In this last clause of the will the shares of the cousins are described as “shares of the piece of ground,” and the devise over to the parents of the cousins is a devise of the land itself and not of shares of valuation money. As the possible sale was not to occur except with the consent of three fourths of the heirs and also of the executors, it follows that if these consents or either of them are withheld there could be no sale, and therefore the very existence of the power depends upon a contingent and an uncertain event. In point of fact the land never was sold, up to the bringing of this suit, and the suit was brought by the devisees because it was still land and they alone had airy interest. We are bound to assume therefore that the contingencies mentioned in the will never transpired, that the prerequisite consents never were given, and hence no conversion under the will was possible. The cases above cited cannot be reconciled with any possible theory of conversion.

As to the proposition that the plaintiffs had not actual possession of the laud and therefore could not maintain trespass for cutting the timber, it is sufficient to say that, under all the authorities, if they were the owners of the title, the land being unimproved and unoccupied in any way, the title carried with it the possession, and such possession was sufficient to maintain the action. In Miller v. Zufall, 113 Pa. 317, we said : “ It is Avell settled laAv that the owner of wild and uncultivated land is to be deemed in possession so as to maintain trespass until an adverse possession is clearly made out: Mather v. Trinity Church, 3 S. & R. 513 ; Ward v. Taylor, 1 Pa. 238 ; Baker v. King, 18 Id. 138.” Speaking of the plaintiff’s right in that case we said : “ He had an indubitable right of possession, and in contemplation of laAv was in the actual possession. This gave him a right to maintain trespass for injury done thereon. It lies not in the mouth of a trespasser to defend by reason of the plaintiff owning only an equitable estate: McCurdy v. Potts et al., 2 Dallas, 98. His equitable title was sufficient to maintain the action against a wrongdoer. ... A warrant for unimproved land gives to the owner of it a constructive possession of the land, which will enable him to maintain trespass for digging ore thereon, against one who has not an actual adverse possession of the land: Baker v. King, 18 Pa. St. 138.”

We are of opinion that, so far as the construction of the will of Mary A. Irwin, and the question of possession in the plaintiffs as affecting their right to maintain the present action are concerned, there was nothing in the way to prevent a recovery, if on the other questions arising their right of action could be sustained. In reference to these matters the facts are of a somewhat complicated character, but after a patient and careful reading of the charge of the learned court below, we are satisfied the case was correctly tried. Much of the controversy arose over the deed of November 9, 1893, from A. W. Patchen to Mary A. Irwin. It is certainly true that when that deed was made Patchen had nothing to convey except the naked legal title. Notwithstanding the rather numerous sales of the land or the timber, made in the interval between 1864, when A. W. Patchen acquired his title, and November 9,1893, when he executed the deed to Mary A. Irwin, there never had been any actual conveyance of the legal title. Of course he held it in trust for the lawful owner, as was said in the charge. When he made a parol sale of the land to W. J. Kime, in 1864 or 1865, no writing of *any kind passed between him and the grantee, who testified explicit^ to that effect on the trial. Nevertheless he says he paid most of the purchase money to Patchen and cut timber, pine, oak and hemlock on the land and then sold to Gressly by a written article of agreement which was lost and not given in evidence. Gressly sold to Smith by article of agreement dated January 9, 1867, which was put in evidence on the trial. Kime testified, that when he sold to Gressly he reserved all the pine, oak and hemlock on the tract, and when Gressly sold to Smith he reserved the “ pine, white oak and hemlock,” and this appears on the face of the article. This agreement therefore operated only on the land and not on the timber, the title to which, or so much as had not been cut off, was still in Kime. Up to this time no one had questioned the validity of the verbal sale by Patchen to Kime; on the contrary the transactions of the parties fully recognized it, and proceeded upon the presumption of its validity. On the back of the article between Gressly and Smith there was the following writing : “ I sold the within named piece of land to W. C. Irwin in August about the 10th, 1868, for a consideration of $75.00 cash and transferred this article to W. C. Irwin. Robert Smith, Sr.”

This was the origin of the title of W. C. Irwin. No deed had been made by A. W. Patchen up to this time, August, 1868, to any one. Smith being examined as a witness on the trial, testified that he sold the land to W. C. Irwin, in August, 1868, and also that when the deed came to be made he would be willing it should pass over him and be made directly to Irwin. He testified: “ I said that if when the deed came through Kime and Gressly, that I had no objection for it to pass me, as it would save me the trouble of making it to Irwin. By signing the article in full I gave him full possession of what I owned. I bought it in full and paid for it and I received payment for it.” Gressly testified that when he bought from Kime he bought for $100, which he paid, only the land and not the timber, that he sold the part in question to Robert Smith, and that he agreed that as Kime had not made the deed to him he might make it to the person he, Gressly, sold it to.

We think it entirely clear therefore, that the parol sale from Patchen to Kime was recognized and observed all the way through from Patchen to W. C. Irwin, that the reservations of the timber were made, not to assert any new right but merely to enforce the original reservation made by Kime, and because the subsequent purchasers of the land considered they had no title to the timber. This was said by the learned court below in the charge and answers to points with entire correctness as we think. It results, then, that when Smith sold to W. C. Irwin, Kime remained the owner of the timber if it was not cut off, or of so much timber as was merchantable at the time of the reservation, and was not cut off. This raised two questions of fact which were carefully left to the jury, whether- it had all been cut off, and, if not, whether any, and how much, that was merchantable, at the time of the reservation, which was in 1866, 1867 or 1868, was still left. If there was any of the latter which was cut by the present defendants, the jury were instructed it was rightfully cut, and there could be no recovery for it in the present action. A considerable amount of testimony was given on this subject and it was all left correctly and with careful instructions to the jury. Now W. C. Irwin died in March, 1870, having acquired his title in August, 1868. He left two children, Mary A. Irwin and her brother Orin G. Irwin, and to these two the land descended under the intestate law. Mary A. Irwin subsequently acquired her brother’s title by a purchase at sheriff’s sale. No conveyances of the land were made between August, 1868, and November 9, 1883, and at the latter date A. W. Patchen made the deed to Mary A. Irwin. The deed contained the reservation of the timber in the following words: “ The said party of the first part hereby reserving all the oak, pine and hemlock timber on the above described .tract of land, having previously sold the said timber to William J. Kime, with the period of fifteen years to cut and remove the same free of charge.” As a matter of course this was not a reservation in favor of Patchen as he had sold everything, land and timber, to Kime in 1864 or 1865, and he did not assume to reserve anything to himself. The reservation was.for the benefit of Kime or his grantees if he had any, but .as he never sold the timber to any one prior to November 9, 1883, he was the sole beneficiary. But if he had removed all the timber that was merchantable at the time of the reservation made by him, there was nothing upon which the reservation in the deed from Patchen to Mary A. Irwin could operate, and it was of no effect as against her. If there was any of that kind-of timber still left it belonged to the defendants under the subsequent deed .made by Kime to Horace Patchen in December, 1883, and to this effect the court below instructed the jury correctly, as we think.

These views dispose of all the assignments of error except those which relate to admission and rejection of testimony. As to the first, we think that when one of the parties to the instrument testified to the fact of execution by himself and the other party, and that both the subscribing witnesses were.dead, and that he had some acquaintance with the handwriting of one of the witnesses from having seen him sign for him, and that he had seen, some of the handwriting of the other witness, who wrote the paper in question which the witness signed, it is sufficient to justify the admission of the paper. He testified to the fact of his own signature, and that he was present when John Fulton, one of the subscribing witnesses, signed it, and that the other witness wrote the body of the paper. The reception of the instrument in evidence was largely in the discretion of the trial judge, which we see no occasion to question: Wilson v. Van Leer, 127 Pa. 371.

Several assignments relate to the admission of certain assessment books and tax receipts. Of course such testimony cannot prove title, but they are some evidence of claim, and are more or less efficient as a basis of inference, acéording as the opposing evidenceof asimilar characteris weaker or stronger, andthe other facts.in the case -are more or less consistent with the claim made.

In Hockenbury v. Snyder, 2 W. & S. 240, speaking of a claim under the statute of limitations, we said: “ The assessment is-resorted to not as giving him a right but to show the extent of his claim and possession. ... I apprehend then that, where paying taxes for a tract, or the whole tract, is spoken of, it has reference to the extent of the claim, and is referred to as evidence of that extent.”

The present litigation is chiefly a contest about timber, or land with timber on it. Some of the assessments are for land only, others are for timber land. How far they would affect the question of the plaintiffs’ claim for timber or timber laud would be for the jury. Three of the tax receipts for 1885, 1886 and 1887 were receipts to Mamie Irwin, and were .objected to, because the payment of the money was not proved by the person who paid it, or the one who received it, but the court held that, not being evidence of title, but only evidence of the bona fides of the claim to the property in dispute, the papers were sufficient^ shown to be for taxes levied and assessed upon the land. We think there was no error in this. The other payments were proved by the person who made them. That'person was Henrietta Irwin, one of the plaintiffs, whose competency was objected to on account of the death of Horace Patchen, uir der whom the defendants claimed. He died December 23,1885, and these payments were all made after that time. The court below was of opinion that under the act of June 11, 1891, P. L. 287, she was competent, as she was not testifying to any-1 thing that occurred between her and Horace Patchen but in' the presence or hearing of other living or competent persona. In this we think there was no error. The act authorizes the admission of testimony of one of the parties to facts transpiring before the death of the deceased party or person, if the relevant matter occurred between the witness and some other living and competent person.

We do not see how the testimony as to the extent of the timber cutting, and the growth of timber after the right reserved was exhausted, could have been withheld from the jury. There was sufficient evidence of the facts to submit to the jury, and upon the plaintiffs’ theory of their right to recover, the testimony was competent.

We think the learned judge of the court below was entirely right in charging the jury that A. W. Patchen had nothing to convey but the bare legal title, when he made the deed of Nov. 9, 1883, that he could not bind W. J. Kime by any reservation he chose to put in the deed, that Kime’s right to take off the standing timber was limited to the merchantable timber on the land at the time he sold to Grossly, and that any timber which grew into value on the land after 1868 was the timber of the plaintiffs.

The fact that Henrietta Irwin saw the defendants hauling timber from this land past her door, without objection, would not divest her title if she had it, and it was therefore immaterial. So too the fact that Mary A. Irwin told Dr. Prowell that Patcheu’s estate owned the oak, pine and hemlock timber, could not divest her title if she had one, nor could it create a title in Patchen’s estate. As for the recognition of the deed of November 9, 1883, that was abundantly done in her will, but, as we have already said, Patchen could not convey anything but the legal title, and he could give nothing to Mary A. Irwin by reservation or in any other way, more than the naked legal title. Therefore there was nothing upon which the proposed declaration could operate. It was Kime’s reservation and the effect of it, that was in controversy, and that was not, and oould not be, affected bjr these rejected declarations. We think the answer to the defendant’s fourth point was entirely correct. Mary A. Irwin could certainly not be estopped from claiming the timber by any manner of recognition of the Patchen deed if she was otherwise entitled to it. She had a right to have the deed for the conveyance of the legal title, and it was not in Patchen’s power to take away her title to the timber if it arose extrinsically to the deed.

We see no error in the answer to the defendants’ fifth point. The defendants’ right could not be greater than a right to cut such timber as belonged to them, and. that the answer gave them. Certainly they would be liable if they cut timber not within their reservation, and that was the whole substance of the court’s ruling, and it is fully sustained by our decision in Shiffer v. Broadhead, 126 Pa. 260.

Judgment affirmed.