Putnam v. Tyler , 117 Pa. 570 ( 1888 )

Opinion,

Me. Justice Claek :

The first question presented in this case is, as to the effect of the outstanding tax title in Jones, Warner & Andrews. Why was not that title a valid defence against the plaintiff’s recovery ?

The lands in controversy are admittedly embraced within the lines of the Wilhelm Willink survey, which, in the years 1826 and 1827, was assessed in the unseated list as tract No. 4897, 100 acres, situated in Fox township, Clearfield county, surveyed in the name of Wilhelm Willink ; for 1826, county tax, six cents, road tax, six cents; for 1827, county tax, five cents, road tax, six cents. For these taxes the tract was subsequently sold at treasurer’s sale, and purchased by Ebenezer Hewitt' to whom a deed was acknowledged and delivered under date of December 1, 1828. The owner failing to redeem, Ebenezer Hewitt, by his deed dated July 26, 1836, conveyed the same to Jones, Warner & Andrews, who, on August 11, 1836, placed both of the deeds mentioned upon record. The tract contained about 1000 acres, whilst it was assessed as containing only 100 acres; but there is nothing to indicate that a portion only of the tract was intended to be covered by the assessor’s return. The return was of tract No. 4897, in the name of Wilhelm Willink, and the “ 100 acres,” is but matter of description. At the time of the assessment, Martin Nichols held a conveyance for 750 acres off the west end, and Jonathan Nichols for 300 acres off the east end, the residue of the tract; but the whole was unseated, and it does not appear that the owners had made known their separate ownership, as required by the act of 1806, in order that their respective portions might be taxed separately. The Willink survey of 1794, was located across the surveys of 1785; the earlier surveys having previously appropriated all the land covered by No. 4897, exceptizig about 126 acres at the northwest corner, and 144 acres at the southwest corner; and, as the division line was afterwards run between Martin and Jonathan Nichols, the 126 acres at the northwest corner, and about 36 acres of the piece izi the southeast corner fell to Martizi, and the residue, being 100 acres, more or less, to Jonathan. It does not appear that there was any indication, at the time of the assessmezit, that any portion of the tract was laid upon lands already appropriated, or that the owners of the tract 4897 reeogziized the superior right of any earlier warrant. The conveyazices from Alexander Boyd to Martin and Jonathan Nichols were of the whole tract, and nothing appeared on the land or otherwise to show any relinquishment- on the-, part of the holders of the Wilhelm Willink warrant. On the other hand, as we have said, the assessment was of the whole tract by its proper number in the name of the warrantee. It-does not even appear that the lands covered by the warrants of 1784 were assessed, or that the taxes thereon were paid for the years 1826 and 1827, and if they were not, the tax deed of 1828 would, under all the cases, be effective to convey all the lands embraced within the lines of tract 4897.

It is only essential to the validity of a tax sale that the land be so designated in the assessment as to lead the owner to a knowledge of the fact that it is his land which is assessed: Dunn v. Ralyea, 6 W. & S. 475; McDermott v. Hoffman, 70 Pa. 31. The tract being unseated, the assessment by its proper number in the name of the original warrantee was sufficient, notwithstanding the misstatement of the number-of acres: Williston v. Colkett, 9 Pa. 38; it is enough that the name in which it is assessed has been linked to the land by some known claim of title: Glass v. Gilbert, 58 Pa. 266.

Nor can the title of Jones, Warner & Andrews be regarded as an abandoned and derelict title. It is a general rule in ejectment, subject to well known exceptions, that the defendant may protect his own possession by showing an outstanding title in a third person; but it must be a subsisting title, such as would sustain an ejectment, and be available in favor of the party in whom it is alleged to exist. The effect of the tax sale after the lapse of two years, was to pass the-title of the real owner to Ebenezer Hewitt. The conveyance from Plewitt to Jones, Warner & Andrews, was, therefore, of the absolute legal title to the land with all its incidents. It was not such a title as. might be abandoned by mere delay in instituting an action. A man may abandon an improvement or a right of pre-emption, Whitcomb v. Hoyt, 30 Pa. 403, because continuity of possession is essential to its existence ; or-he may abandon a location by neglecting to follow it up by a. survey in a reasonable time; or he may abandon an equity in lands; but Jones, Warner & Andrews were invested with the-full legal title, and of such a title they could only be divested by an abandonment, the circumstances of which were sufficient-to raise an estoppel, or when the possession is acquired by one in consequence of the abandonment, and held by him under claim of title for the period of the limitation.' When there is neither estoppel nor limitation there can be no abandonment,, no matter how formal the act short of a conveyance, which can affect the rights of the holder of the legal title: Watson v. Gilday, 11 S. & R. 337. In Hoffman v. Bell, 61 Pa. 444, land warranted and surveyed in 1794 was sold to the county for the taxes of 1820; the treasurer made a deed in 1826, bufas it was made after he had gone out of office it was void; the purchaser from the county paid the taxes for forty-eight years, and during that time the warrantee neither made claim nor paid taxes; held, that this great lapse of time without claim or payment of taxes by the warrantee was not an abandonment. “The owner’s non-payment of taxes,” says Mr. Justice Shabswood in the case cited, “ cannot be considered as an abandonment of his title. The doctrine of abandonment does not apply to lands held by a perfect title, but only to imperfect titles by warrant and survey.” So in Bunting v. Young, 5 W. & S. 188, where warrants were obtained from the commonwealth in 1793, the purchase money paid, surveys promptly made and accepted, it was held, that there could be no such thing as abandonment by which the title would be lost, and that it was error to submit that question to the jury. If this were an ejectment by Jones, Warner & Andrews, we can discover no reason why the tax deed to Hewitt and the conveyance from Hewitt to them, would not be available in their favor; and, if this be so, they should have been available in this case to protect the defendants’ possession, for the plaintiff must recover on the strength of her own title.

Under the testimony of the surveyors, Read and Mitchell, the question of location should have gone to the jury. Phoebe Tyler, as we have said, must recover on the strength of her own title, and if it be true that one half or more of the lots of Putnam and Scates were in fact not within the lines of the 36 acres conveyed to her by David Tyler, she has shown no title which would justify her recovery of any land outside those lines. It will not do to say there never was any dispute as to the line of the Hutchinson survey; there is a dispute now, and the true location of the dividing line between the tracts was, under all the evidence, for the determination of the jury.

But as the difficulties we have suggested may be removed at the next trial, we come next to consider the question of estoppel. The defendants allege that David Tyler, and Phoebe Tyler, who holds under him, are in equity estopped from asserting title to this land. The doctrine of equitable estoppel is well settled under our decisions, and, so far as it applies to this case, is stated substantially in the cases folio whig: Positive acts tending to mislead one ignorant of the truth, and which do mislead him to his injury are grounds of estoppel, though the party estopped were ignorant of his rights: Chapman v. Chapman, 59 Pa. 214. But the acts of a party, done in ignorance of his rights, will not operate as an estoppel, unless others have acquired rights on the faith of them: Newman v. Edwards, 34 Pa. 32; Duncan’s Appeal, 43 Pa. 67. One who by a positive act induces another to purchase land of a third party, of which the former is the true owner, is estopped from setting up his title against the purchaser, though all parties acted in good faith, and in ignorance of the true state of the title: Miller’s Appeal, 84 Pa. 391. When a person 'actually encourages or induces another to enter upon land and invest money or expend labor, he cannot afterward call in question such title, though he acted in ignorance of his own right: Woodward v. Tudor, 81* Pa. 382.

It appears to be undisputed that at the time of Putnam’s purchase of the land in dispute in 1875, and for some time before and after that time, Tyler was ignorant of the real condition of the title; he had taken the timber off the thirty-six acres some years before, and thought the land was embraced in his mortgage to Wallace. If the land should prove to be vacant, however, as it was then supposed to be, it would still be available for Putnam. It was to ascertain this fact that the parties went to Plarrisburg. Finding that the lands were patented, Putnam said to Tyler on his return home, “ What shall I do now.” Tyler replied, “ I don’t know.” Putnam said, “ I will go and see Mr. Wallace and have him look it up.” Putnam says, he did see Mr. Wallace, and- under his advice purchased the Coxe title. Subsequently improvements were made to the value of $10,000 or thereabouts. In 1879 or 1880, Tyler told Putnam he had found a deed to himself for this piece of land; it was the deed from Martin Nichols. An ex-animation showed that the thirty-six acres had not been embraced in the Wallace mortgage. Now, if the acts and declarations of Tyler were snch as to induce Putnam to make the purchase, and as matter of fact, upon the faith thereof, the purchase was made, Tyler would be estopped from afterwards setting up the true title against Putnam, although he may have been ignorant of his own rights at the time. What the actual inducement is to a purchase of real estate often involves an operation of the mind, which cannot always be shown, and in some cases, perhaps, the existence of certain facts will raise a presumption of injury. But, in this case, there is no pretence that Tyler encouraged the purchase of the Coxe title, or indeed of any other title. Putnam himself testifies, that he purchased the Coxe title under the advice of his attorney, whom he had employed to look the matter up. A question of fact is thus distinctly raised, viz.: Whether Putnam purchased relying in whole or in part upon Tyler’s implied disclaimer, or upon the advice of hiscounsel. This question was, we think, one for the jury. The learned judge instructed the jury as follows: “ It is just as you find the weight of the evidence in these particulars that turns your verdict for the plaintiff or defendants. Did Tyler mislead Putnam or did Putnam buy the Coxe title, independent of what Tyler had said or done, intending to assert a superior or better title, as he believed, and hold the land ? If he did, then Tyler’s acts and silence did not hurt him. If, however, he acted on whatever Tyler said or did, then he was misled, and that by the man who ought to have had the knowledge and given him (Putnam) notice of it, and the plaintiff is estopped.” The verdict was for the plaintiff, and the inference is irresistible that the fact submitted was found for the plaintiff.

Nor do we find in the evidence any positive act of Tyler which can be treated as an inducement or encouragement to make improvements on the property after the purchase. The testimony upon this point is certainly very slight indeed. It is said, however, that he lived within half a mile, saw the improvements made, and gave no notice of his claim; but mere silence will not estop a party having title ; it will postpone only when silence is a fraud, which cannot be imputed to one who is ignorant of his rights: Folk v. Beidelman, 6 W. 339; Robinson v. Justice, 2 P. & W. 19; Owens v. Meyers, 20 Pa. 134; Davidson v. Barclay, 63 Pa. 406; Lawrence v. Luhr, 65 Pa. 236.

It is further contended, however, that although the plaintiff may be entitled to recover the land, he can only do so upon payment to Putnam of the value of his improvements; that the defendant has an equitable lien for his improvements, and a right of possession till that lien is satisfied; that Putnam was a bona fide occupant under claim of title, and made useful and permanent improvements in betterment of the estate, believing himself to be the owner, and that he is entitled to-have the value thereof before he can be obliged to surrender the possession. We have no statute in Pennsylvania upon this subject, except as to the recovery of land sold for taxes: Act of April 3, 1804, 6 Sm. L. 301 [4 Sm. L. 201]; Act of April 12, 1842, P. L. 265. The principle of the common law is, that the rightful owner is under no obligation to pay for improvements which he never authorized: Gregg v. Patterson, 9 W. & S. 209. It is now an established principle, however, to allow a bona fide occupant, under color of title, to-mitigate the claim for damages and mesne profits by introducing proof of the value of permanent and useful improvements.. This principle was engrafted upon the common law through the medium of equity: Sedg. & Waite on Trial of Title, 691; Walker v. Humbert, 55 Pa. 407; Morrison v. Robinson, 31 Pa. 456. The general policy of the law, where no statute intervenes, is to allow the value of improvements only by way of set-off against or in mitigation of damages for the detention of the land, and the value of betterments cannot, therefore, usually exceed the amount of the plaintiff’s damages and mesne profits: Sedg. & Waite, 698.

It is a well settled principle of equity, moreover, that when a bona fide possessor of property makes meliorations upon it,, in good faith and under an honest belief of ownership, and the real owner is for any reason compelled to come into a court of equity for relief, that court, applying the familiar maxim that he who seeks equity -must do equity, will compel him to pay for' those improvements, as far as they are permanently beneficial to the estate and enhance its value: Story’s Eq., 779; Pomeroy’s Eq., 1241; Skiles’s Appeal, 16 W. N. 246. This is the extent to which the courts of this state have gone in allowing for improvements, and it will be seen that the claim of the defendants cannot in this case be sustained.

The second, third, seventh, eighth, ninth and tenth assignments are not sustained; but upon the first, fourth, fifth, sixth and eleventh the judgment is reversed, and a venire facias de novo awarded.