Covert v. Irwin , 3 Serg. & Rawle 283 ( 1817 )

Tilghman C. J.

The errors assigned in this case, are in the charge of the Court below, to the jury. We have not the evidence, except as it is stated in the charge, so that we must take it as there stated. It appears, then, that the heirs of John Covert, (the plaintiffs below,) claim under an improvement made by the said John. The defendants claim under Thomas Procter, whose title was by warrant and survey. The defendants also allege that John Covert was the tenant of Procter, and therefore if any improvement was made by him, it enured to the use of Procter. And further, they allege that this land was sold by the sheriff, as the property of Procter, and that it was represented at the sale, that John Covert was in possession, as Procter’s tenant, which was not contradicted by Covert.

The plaintiff’s counsel prayed the Court to charge the jury on four points, as follows.

1. That if the jury believe, there were no lines marked on the ground, on the survey for Procter, under whom the defendants claim, then there was no legal appropriation by Procter, of the land in question, and the jury ought to find for the plaintiffs.

2. That it is the duty of a deputy surveyor to mark the lines and corners of a new survey, even where it adjoins old surveys, if such marking be necessary to identify the tract, and can be done without defacing other marks of survey.

3. That John Covert’s residing upon the premises, was notice to the defendants- of his claim, so as to put them upon inquiry to ascertain it.

4. That a party agreeing to contract, under mistake, or under circumvention, is not bound by it.

1st. As to the first point, the plaintiffs’ counsel asked too much : Because, although no appropriation of the land had been made by Procter, it did not follow that the plaintiffs were to recover. In order to entitle the plaintiffs to recover, it was necessary to shew, not only that Procter had made no appropriation, but that John Covert had made an appropriation, because the plaintiffs cannot recover on the weakness of the defendant’s title : he must shew title in himself. '1 he Court charged-the jury properly. They directed them to consider, whether Procter’s survey was made on the ground. If it was, there was an end of the business, because this survey was prior to Covert’s improvement. But if it was not made on the ground, the jury were next to consider, whether John Covert had made an improvement for his own use, and if he had, as I understand the charge, the verdict was to be for the plaintiffs.

2d. The opinion of the Court, on its second point, was, that where a new survey is made, calling for the lines of an old survey, there is no occasion to mark the trees anew. The law is so ; double marks are apt to make confusion, and the new survey is as well identified by referring to the old lines, as if each boundary tree was marked over again. Whether the new survey was actually made on the ground. the Court submitted to the jury as a fact to be decided by them, and that was as much as the plaintiffs’ counsel could ask.

Sd. The plaintiffs’ counsel supposed, that the circumstance of John Covert's residing on the land, was, at all events, notice of his claim. Granting that, in general, possession is notice of claim (a principle not necessary to be now decided), there may be circumstances which throw a duty on the tenant in possession; such for instance as are alleged in this case; a sale of the land by the sheriff, as the property of Procter, whose tenant Covert was said to be, Covert standing by, and not contradicting it. The Court had a right to take this circumstance into consideration, in delivering their charge, and I think they were right in the opinion, that if Covert did so stand by, knowing that he was represented as Procter’s tenant, and not contradicting it, he could not after-wards contest the title of Procter with the purchaser.

4th. It appears to me, that the 4th point was proposed in so general and so abstract a form, that the Court were not bound to answer it. They are bound to answer no question which is not pertinent to the issue, and fairly arising out of the evidence. But there is no evidence appearing on this record, which could give rise to a question of mistake or circumvention. If there had been, it was the business of the plaintiffs’ counsel, in stating their proposition, to mention and refer to it. Not having done so, this Court cannot take notice of it.

These are the principal objections urged on the part of the plaintiffs ; and they embrace all the points on which the opinion of the Court of Common Pleas was asked. Some minor points were made in the argument here, into which I do not think it necessary to enter. My opinion on the whole, is, that no error appears on the record, and therefore the judgment should be affirmed.

N. B. Judge Yeates (deceased) concurred in this opinion, but died before it was delivered. Gibson J. concurred. Duncan J. concurred.

Judgment affirmed..