Naglee v. Albright , 1839 Pa. LEXIS 207 ( 1839 )

The opinion of the Court was delivered by

Sergeant, J. —

The points of law arising in this case may be more conveniently considered as they have been argued in this Court, than by taking up one by one the numerous subdivisions in which they present themselves in the defendants’ specification of errors.

1. It is insisted that the Court ought to have instructed the jury, that the sheriff’s deed not being recorded in the office for the recording of deeds, is void and insufficient as against subsequent purchasers. But it has always been held in the case of sheriffs’ deeds, that their acknowledgment in open Court, and the minute taken of them of record by the prothonotary, is a. sufficient recording within our recording acts; differing in this respect from other deeds and conveyances, which may be acknowledged before a judge, justice, or other officer, and must be recorded in the recorder’s office of the proper county. This distinction has existed in Pennsylvania ever since the passage of the act of 1705, relative to executions, and the act of 1715 establishing a recorder’s office; and sheriffs’ deeds have, it is believed, been r arely recorded in the latter. It is true that this may be an inconvenience to purchasers and others, in examining titles; but they have the opportunity of ascertaining sheriffs’ conveyances, by resorting to the minute books of the Courts, in which an abstract of the contents of sheriffs’ deeds acknowledged there, is regularly kept, and a copy of which is evidence after showing the loss of the original. The point was expressly determined as long ago as the year 1782, in Shrider v. Nargan, (1 Dall. 68,) where the objection was made, that a sheriff’s deed of the sale of lands under a writ of venditioni exponas, not being recorded in the rolls’ office according to the act of assembly of 1775, could not be read in evidence, but it was not allowed, because, said M'Kean, C. J., it was acknowledged in Court ■, and the registering it in the prothonotary’s office, as is always done, is a sufficient recording within the act. This decision has never been contradicted, but the usage has been in accordance with it, and the decision is recognized as late as 1814, by Judge Yeates, in M'Cormick v. Meason, (1 Serg. & Rawle, 96,) who said it had been determined that an acknowledgment by the sheriff in open Court, and a minute of this on the record, was equivalent to recording, and that this was before he came upon the bench. The point certainly ought now to be considered as beyond dispute.

2. It is urged that trespass quare clausum fregit cannot be maintained without actual entry by the the sheriff’s vendee, and that .although the Court directed the jury that it was necessary for the plaintiffs actually to enter in order to get possession, and that if neither they nor their father under whom they claim ever took, possession before the putting up of the fence by the defendant, the plaintiffs cannot maintain this action, yet they erred in leaving it to the jury to presume in the absence of any express evidence of the fact, that the father did enter by virtue of his sheriff’s deed dated in 1796. What was the legal effect of this sheriff’s deed to Michael Albright in vesting the possession of the lot in him either by its own efficiency, or by virtue of any presumption of entry under it into a lot supposed at that time and long after to be vacant, was a question undoubtedly very material in the determination of this action of trespass. • It seems to be rightly admitted by the counsel for the plaintiff in error that if this had been an ordinary conveyance which had been duly recorded in the recorder’s office agreeably to the provisions of recording acts, then it would have transferred to the grantee not only the co mplete title, but also the actual possession, if the lot were at that time vacant. For by the act of 1715, “ all deeds and conveyances made or to be made and proved or acknowledged and recorded, &c. shall be of the same force and effect here for the giving possession and seisin, and making good the title and assurance of the said lands and tenements and hereditaments as deeds of feoffment with livery and seisin, or deeds enrolled in any of the King’s Courts at Westminster are or shall be in the kingdom of Great Britain.” But it is contended that these acts do not apply to sheriffs’ deeds, which are provided for by an earlier act of assembly (1705) and are differently acknowledged and recorded. I am inclined however to think, that where the land or lot sold by the' sheriff is vacant, there is no such distinction in the effect of a sheriff’s deed, and that of another person, and that whatever differences there may be in the phraseology or dates of the act of assembly or the modes of acknowledging and recording deeds, a sheriff’s deed conveys not only the title of the defendant but also the actual possession to the purchaser, in case there is no other possession at the time, either in the defendant, or any other person, in the same -manner and as fully as an ordinary deed. I can see no reason under the law and practice of Pennsylvania, why a sheriff’s deed. should be more limited in its effect than an ordinary deed, and why it should in all cases require an actual entry to give .possession, though it is not necessary in other deeds of vacant land, as it accompanies the title. But without deciding this point, I am clearly of -opinion, that after a lapse of forty years from the date of a sheriff’s deed for a vacant lot in the city of Philadelphia an entry by the sheriff’s vendee in pursuance of that deed may fairly be presumed to have been made. It would be very, difficult and indeed in most cases impossible now to prove the fact; and after a-.length of time presumptions are often made to support a right, founded on the natural course which things would have taken among parties so situated. See the cases cited 17 Serg. & Rawle, 352 ; 1 Phill. Evid. 129 notes.

3. The defendant relies on the evidence of his payment of taxes, as showing an adverse possession for more than twenty-one- years, and therefore giving him a better title than the plaintiffs by virtue of the statute of limitations. Mere payment of the taxes assessed on a vacant lot by a person having no title, cannot be considered as giving such person actual possession in contemplation of law, especially of that notorious adverse kind which is necessary to constitute an ouster of the party having t.he legal title. It could not be pretended that trespass or ejectment would lie against such a person as defendant, to recover the land itself or damages for entering and treading down the grass or other injury. Payment of taxes is of itself evidence of a claim of title and no more; and where a person has actually entered on a surveyed tract of land and occupied but a part, payment of taxes for the whole tract has been considered as evidence showing a colour of title to the whole, and making adverse possession of part amount to adverse possession of the whole. But it has not been considered as of itself constituting possession where the party never actually entered at all. And such will be found to be the cases referred to, of disputes between the owner of warranted land and persons entering and occupying it adversely. It was allowed to explain the character of the possession and to extend it, but not of itself to constitute it. It may serve to show who claimed to be owner, but not who was actually occupying it: for lands and lots are assessed in the supposed owner’s name, whether he occupies it or not. It would be of mischievous consequence to hold that a person having no title to a vacant lot, could by merely undertaking to pay the taxes or some of them, though even assessed in his name, put himself in the position of an actual possessor, in hostility to the real owner, and thus divest the title of the latter by force of the statute of limitations, without any visible possesion or act amounting in law to an ouster. The owner’s non payment of taxes 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 the imperfect titles by warrant and survey. Nor is it alone an admission of ouster: though, in connection with other circumstances, it might be deemed to have that effect.

The opinion formed on this point, renders it unnecessary to examine the points involved in the bills of exceptions; for if the purposed evidence had been received, it would not. in our opinion make any difference in the result.

Judgment affirmed.