Kramer v. Goodlander , 98 Pa. 366 ( 1881 )

Mr. Justice Trunkey

delivered the opinion of the court,

Having proved by the witness who owned the Smith tract about thirty years ago, that he then employed David Ferguson, a surveyor, to trace the lines, and that said Ferguson is dead, the following offer was made: “ The defendants propose tb prove by the witness on the stand, Jacob Kuntz, what David Ferguson, a surveyor, who made the survey on the ground, since dead, said, when on the ground at the time of making the svrvey for Kuntz, the owner of the J. B. Smith warrant, as to what the beech, testified to by Kuntz was, also as to what he said the line on which he found it was, that is, the north and south line. The parties being then on the ground searching for the west line of David Kennedy, No. 1434, as the eastern boundary of Jonathan B. Smith.” This was rejected as purely hearsay, the surveyor not having examined the line or corner to ascertain its age never having been on tbe ground before. Had be ascertained its age, what he said respecting the line would» have been admissible, yet purely hearsay. From an early day in this state, in litigation respecting boundaries, it has been competent to prove, after the death of a surveyor who had examined a line, what lie said respecting it at the time and on the ground. The more careful and thorough his examination the greater weight his testimony would have if living, or what he said at the time, if dead. But if lie examined the line, he is a competent witness, and after his death his statements respecting the line, made at the time of the examination, may be proved.. The offer should have been admitted.

We are of opinion that there was error in the answer to defendant’s sixth point and in the charge upon the same subject. The question presented in the. last three assignments is substantially the same as was considered in tbe preceding case between the same parties upon a similar point. If the land was properly assessed on the seated list a sale of it as unseated was Aroid. It is not a qnestiou of payment of taxes before tbe date of the sale, but whether the land sold was part of a seated tract which was assessed as seated. The defendants did not allege that they included the land in dispute or any part of it, in order to make tip Y35 acres ; but they did allege that they returned and had assessed as seated a body of land defined by certain boundaries, with improvements thereon; that it was bounded on the east by tract No. 1434, and that the land in dispute was included within said bounds. To show that the number of acres named in the assessment exceeded or fell short of the actual number within said bounds, by no means determines the question. If the quantity in the assessment was too great it does not follow that the disputed laud was included ; nor if not enough, that it was excluded. The quantity returned and assessed would be a fact to consider in ascertaining if the land in dispute was a part of the tract assessed. The defendants claim their tract extended to No. 1434, and that No. 1434 is east of the land in suit.

Judgment reversed and venire facias de novo awarded.