Dikeman v. Parrish

Bell, J.

As a leading subject of inquiry, this record first presents the question, whether the plaintiff below exhibited such aprima facie title to the land in controversy; as put him in a position to call upon his adversary to show a better, in bar of his claim to recover the possession. The validity of the warrant and survey, by virtue of which an estate in three thousand acres, situate on the waters of the Meshoppen, was acquired by Andrew Allen and his associates, Benjamin Chew, Samuel Meredith, Edward Shippen, Joseph Shippcn, and Robert-Yfilson, is not questioned; nor is the fact disputed, that this land was afterwards sold, as unseated, by James Wheeler, the then sheriff of Luzerne county, to Roswell Wells, for non-payment of taxes assessed on the track in the name of Andrew Allen, and a deed therefor, duly executed and delivered by the sheriff to Wells, from whom the plaintiff deduces title, on the 29th of August, 1807. But the validity of this sale, as a means of passing the title of. the warrantees, is impeached on two grounds. First, that the particular tract, the subject of this action, was actually seated when a portion of the taxes, for the non-payment of which it was subsequently sold to Wells, was assessed upon it. And, secondly, that the plaintiff failed to show a strict and literal adherence to the directions of the several statutes which then regulated the taxation of unseated lands, and the sale of them for non-payment. The first of these objections may be disposed of in a few words. It appears from the evidence adduced on the trial, that the large tract covered by the Allen warrant and survey, comprehending the land now in dispute, and designated in the survey as lot No. 10, was first assessed for taxes in Luzerne county in the year 1796, and again in the years 1799, 3801, 1802, 1808, and 1804. The whole tract remained vacant until the autumn of 1799, when an individual named Tar-box intruded on lot No. 10, cleared a small portion of it, and in 1800, and the following year, sowed about seven acres of grain. He, however, abandoned the possession in the winter of the latter year, after soiling the grain in the ground to one Torrey, who reaped it the' next year. From this time, the land was abandoned until about the year 1810, when one Graytraeks took possession of the clearing, and subjected it to a course of culture. In the mean time, it had, as we have seen, been sold for the payment of the taxes assessed upon the whole track for the years already mentioned, as appears by the sheriff’s deed. It is certain, that in 1796, and when the tax was assessed for the year 1799, the land presented an unbroken forest, uninhabited by man. This, of itself, was sufficient to justify its subsequent sale Tor non-payment of taxes, at a time when no person was in the actual occupancy of it. But in addition to this, there is evidence, which was fairly submitted to the jury, that after the year 1802, it was totally abandoned, and suffered to relapse into its original condition of wildness, uncultivated and uncared for, until re-occupied by one wholly unconnected with the original possession, in the year 1810. If this" were so, the taxes assessed upon it in the intermediate time, as an unseated tract, were properly laid; and the non-payment of these fully warranted its sale by the public authorities, in compensation of the

delinquency of its owners. On the trial, however, several bills of exceptions were sealed at the request of the defendant, to the evidence introduced by the plaintiff, for the purpose of establishing some of the facts to which I have adverted. These exceptions may, not inconveniently, be now considered. The first, second, third, and fourth relate to certain official books and papers kept in, and belonging to the office of the commissioners of Luzerne county, duly proved by official persons connected with the office and its records. Certainly, no objection could be raised against them on the score of irrelevancy; for they went to prove the important facts of the taxation and sale of these lands as unseated. Nor are they liable to the' imputation of incompetency, as instruments of proof. It has long been the practice to receive, as legal evidence, documents of this character, when sufficiently identified, in which are recorded the public transactions of the county commissioners, as public functionaries, intrusted with the discharge of important duties. The rule that admits them as testimony is indeed indispensable to the safety of the community, and, therefore, springs from necessity; for to exclude them would be, in a large class of cases, to shut out the light from the only source whence it could be derived. It is, indeed, but the long-established law of evidence, which regards official papers of public agents, as proof in themselves of the subject to which they relate: Lewisburg v. Augusta, 2 Watts and Serg. 69: the application of which, in the present instance, is fully sustained by Foust v. Ross, 1 Watts & Serg. 501. But the competency of these documents does not altogether rest upon the common-law rule; for the 20th section of the act of the 15th April, 1884, requires the county commissioners to appoint a clerk to keep the books and accounts of the board ; to record and file their proceedings; and the 21st section makes copies thereof evidence. Of course, within the spirit of the act, the original papers are also evidence: 10 Watts, 76. The fifth bill of exception is directed against the-ruling of the court below, admitting as evidence a certified copy of a warrant of sale, purporting to have been issued by the commissioners of Luzerne county, to the sheriff, dated September 4, 1805. As it does not appear this paper was certified in the form prescribed by the act just cited, it was possibly obnoxious to the objection of being insufficiently proved; but as it was exhibited merely to lay a foundation for the introduction of the sheriff’s deed, which was admissible without it, its reception is not such injurious error as calls for the reversal of the judgment. It is indeed said, that the acknowledgment of this instrument being proved only by the certificate of the prothonotary endorsed upon it, it ought not to have been received in evidence, upon the rule established by Bellas v. McCarty, 10 Watts, 21, and Patterson v. Stewart, Ibid. 470. But.thi's objection overlooks the act of 5th April, 1842, making such certificates sufficient' evidence of the sheriff’s aéknowledgment. • Having thus disposed of the exceptions to evidence, we may approach, unembarrassed by them, the consideration of the second objection raised against the sheriff’s sale and conveyance to Wells, as an effective assurance. This objection is based upon the oft-repeated decisions of this court, that such a tax sale, made prior to the act of 1815, conferred- no title on the purchaser, in the absence of proof of a strict and minute adherence to the various directions ,of the’statutes regulating the subject: the onus of showing-which rested on him, who' claimed by virtue of the sale. But the application of this rule, -productive as it was of much inconvenience, if not positive injustice in a great variety of instances, is said to have always been restrained in its apjffication, to the protection of the title of the original owner. It was never permitted to intervene, to shield a mere intruder on the land sold; and the principle is now firmly established, that as against a trespasser without right, the constructive' possession with vfhich the law clothes a purchaser at a tax sale, is 'sufficient. “ All that is necessary,” says Mr. Justice Rogers, in Foster v. McDivit, 9 Watts, 344, * to. a plaintiff in. ejectment, in the first instance, after showing title out of the Commonwealth, as against an intruder, is to prove an actual possession; or where the land is sold for taxes, to exhibit the. deed from the commissioners, or treasurer. This is sucha primá faeie title, as is'sufficient to'put the defendant on proof of a better right. ■ The action of ejectment is intended to try the fight to the possession; and from this -it follows, that an actual possession, or a constructive possession, which results from a purchase at a treasurer’s sale, and' the subsequent payment of the county rates, is good against a'person who enters without right.” This doctrine is fully sustained by the late case of Foust v. Ross, supra, in which the remarks I have extracted- are cited with' approbation. In our case, the plaintiff below, after showing the Commonwealth had parted with the land, and that it had been assessed for tax in the name of the warrantee, gave in evidence the deed of the sheriff, which was, at least, potent -enough to put a stranger to the original title . on. his defence. But the plaintiff went far beyond the simple exhibition of the deed, for he gave proof that immediately- after the conveyance from Wells to Parrish, tie elder, the latter entered into the actual possession of the land by his tenants, which was continued down to the year 1828, commencing with Graytracks, who entered, as Parrish shows, under a verbal lease from himself, and including the occupancy of the McMillans, father and sons, the latter as volunteers standing in the shoes of their father, and therefore subject to his disability to deny the title of his lessor. If, then, it be conceded, that as against the defendants below, who claimed by colour of title, acquired upon a valuable consideration, something must be added to the sheriff’s deed to give it sufficient solidity, and firmness to support an estate — though I am inclined to think that, without this, it would afford a competent foundation — we have that, which, for such a purpose, is much more than equivalent to the payment of county rates; for that, at best, amounts to but a constructive possession; while here there was an actual possession, and that, too, in the persons of those under whom the defendants claim. In this state of fact, they cannot bo permitted to treat the deed made to Wells as a nullity, only because the lapse of time, in its progress, has swept away, one by one, the evanescent instruments employed to effect the,sale, and, with them, the only means of proof that the requirements of the older statutes were obeyed. Standing in a position, not within the overshadowing protection of decided cases, the defendants possess no such peculiar merit as should make us seek to place them there, by an extension of the principles of those,decisions. .There is, certainly, nothing in the rule established by them, to recommend an extension of its applicability. On the contrary, considerations, as well of private right as of public policy, may be invoked as opposed to any attempt to enlarge the circle within which its operation has hitherto been confined: considerations, which, it is known, caused legislative interference prospectively destructive of the doctrine of the earlier cases. The defendants can advance no other claim to favour, so far as the point now under consideration is involved, than that they have paid, in good faith, their money for the lands of which they have the possession; but this, if true, places them in no better category than with those who, from ignorance, carelessness, or mistake, buy a worthless title, but whose mouths are closed by the maxim, caveat emptor. The plaintiff was then entitled to require the defendants to establish a right superior to that he had prima,facie shown in himself. Responding to this call, they gave in evidence a deed of conveyance of the land in question, from Oliver Graytracks to Daniel McMillan, dated September 3, 1817, acknowledged and recorded on the 5th of the same month; a deed in consideration of natural love and affection, from McMillan to his sons John and Angus McMillan, dated April 30,1822, acknowledged and recorded May 15, 1822, and two deeds made for valuable considerations? from John' and Angus McMillan, to Elkanah Tingley, for their respective undivided moieties of the land, bearing date the 16th of April, and 1st of- May, 182.3, and acknowledged and. recorded on the 3d of the last-mentioned month. Besides these conveyances* they exhibited a judgment-confessed on the 7th of August, 1820, by Daniel McMillan, John McMillan, and Alexander McFarland, upon which leg^l process was issued, and the land sold, as, the property of McMillan, to Tingley, by the sheriff,’ who conveyed it to the purchaser by deed, dated January 19, 1824; and from Tingley a regular chain' of title is deduced, by legal conveyances, down to the present defendants, or gomé of them. Conceding the plaintiff’s.title to be good in its inception, the defendants insist, they have acquired an indefeasible estate in the premises, by operation of the statute of limitations. It is pretty certain, however, they can derive no benefit -from the previous póssession pf Graytracks and the McMillans, father and sons; for' it appears to be very clearly established that they held the land, not adversely to Parrish, the elder, but in subserviency to his title; or, if any doubt should exist as to the nature of .Graytrack’s possession, it' cannot be questioned that McMillan by his- agreements, first for a purchase of the land, and afterwards by his submission to an award, fully recognised Parrish’s superior right; and his final attornment, as tenant, disarmed him of the power to impeach the title of his lessor, and still more, to assert a hostile possession, which in the end might prove destructive of it. . An attempt was made on-the argument, to assimilate his course, in this particular, to that pursued by the parties in possession of the lands litigated in -Sailor v. Hertzog, 4 Wh. 259, and Bell v. Hartley, 4 Watts & Serg. 32; but it was in fact so broadly dissimilar -as to forbid any attempt to institute a parallel. Those, were, at most, confessions that the true titled were not held by the occupants, accompanied by offers to' purchase a compromise.. This was an unequivocal acknowledgment of a . paramount right* followed by a distinct agreement to hold the possession subservient to and in dependence upon it. ' There, there was nothing to create a false confidence, inducing the true owners to sleep upon their rights. Sere there was every thing to lull the landlord into a feeling of security, naturally'leading him to rely on the agreement of one .who occupied the lands but by his sufferance and permission. To suffer the latter'to convert this permission into a weapon of offence against the elder right, would be to assist hiru in the perpetration of a fraud, upon the faith which sprung from his own solemn contracts. But we are of opinion, that the relative position of Parrish and Tingley, after McMillan’s conveyance to the latter, was very different. So far as is shown, there was no circumstance attending his entry on the land, operating to limit him to the assertion of a merely subordinate possession. It is undoubtedly true, as a, general rule, that one entering by the sufferance and permission off the tenant of another, will himself hold that relation to the lessor. And the law will not permit him to assume an attitude hostile to the title under which his occupancy commenced: Graham v. Moore, 4 Serg. & Rawle, 467. Having placed himself in the shoes of the tenant, he is bound by the allegiance a lessee owes his lessor, and cannot throw it off at will. And the case is the same, where an adverse claimant, by tampering with his adversary’s tenant and seducing his fidelity,' gets into possession, or by collusion with the latter, recovers a judgment in a possessory action: Cooper v. Smith, 8 Watts, 536; Stewart v. Roderick, 4 Watts & Serg. 188. But where one enters without knowledge of the tenancy, and irrespective of it, in the assertion of a title on its face adverse to the lessor, though derived, as here, from the tenant; his possession will be hostile, if unequivocal acts and declarations manifest an intention to hold in despite of all others. Nor is it necessary, in order to engraft the elements of exclusiveness and hostility upon such a possession, a party should expressly declare his intention thus to hold. As in the case of tenants in common, the character of the entry and subsequent possession may be as conclusively established by the attending facts, as by the most formal proclamation. • Where these demonstrate an adverse intent, continued for a sufficient length off time, it is equivalent’ to actual ouster; and this, though in contemplation of law, the entry of the co-tenant is prima facie the entry of all. Of the facts that have been recognised as indicative of hostile intent, none are'perhaps more decisive than the exhibition of a paper title, independent of that residing in the original owner, by colour of which the party justifies his entry. Thus it has been held, that if one tenant in common sell the whole of the land, and possession be taken of the whole by the purchaser, he will be considered as entering adversely to the co-tenant; because he entered under an adverse title, and not as co-tenant :• Cullen v. Motzer, 13 Serg. & Rawle, 356. And the doctrine of this, case has been applied even in the absence of documentary evidence of title; for where A. and B. were tenants in common by agreement and payment of equal parts of the price of land, and B. took possession and died; whereupon his children entered upon the land and occupied it as their own, without knowledge of the title of A., they were held to have such an adverse possession, as, by lapse of time, barred the claim of A.: Brown v. McCoy, 2 Watts & Serg. 307, in note. The principles announced in these and other cases are of easy application to the case in hand. Unaware of the transactions between Parrish and McMillan, which attached upon the possession of the latter, modifying and controlling its character, Tingley, looking only to the apparent title of Graytracks, which seemed to have commenced in 1810, and was regularly transmitted by conveyances, duly recorded, to the McMillans, purchased it for a valuable consideration, and, asserting it as the evidence of his right, entered • into possession of the land conveyed to him. This entry must be considered as adverse to the title of Parrish; because made under colour of adverse title, and therefore admitting of no other construction. Nor is it of any value as an antagonist fact, that Wells’s deed to Parrish was of record in Luzerne co.unty, thus visiting Tingley with constructive notice of that conveyance; for an adverse holding is necessarily only invoked as productive of a legal title, springing by the operation of time, from what, in its origin, was a tortious intrusion; and it may exist as well where the intruder has notice of a superior title, as when he acts in ignorance of it: nay, notice of another right, if it be unacknowledged, but adds vividness to the colour of title with which the disseisor invests the disseisin, and impresses upon it still more distinctly the sign of hostility. I have said that Tingley purchased and accepted a conveyance, unaware of the previous private arrangement and agreements between Parrish and McMillan. Such upon the próofs must be taken as the fact; for we cannot agree with the court below, that the registry of Parrish’s deed affected those claiming through the McMillans, with notice of all the incidents attending that title. The registration was notice of nothing but that which appeared on its face, or to which it naturally pointed the'inquirer; and this cannot be affirmed of it, in reference to the secret transactions of Parrish and McMillan. In addition to the almost unerring test of Tingley’s intent, furnished by the deed under which he claimed, the case abounds with evidence, that the original exclusiveness and hostility always characterized the subsequent possession. He, and those claiming under him, have at all times exercised the highest acts of dominion over the property, by leasing, devising, and conveying it; by extensively improving it, and by receiving the issues and profits; nor is there a seintilla of proof; that for a moment, during the lapse of twenty-one years, which ran between the inception of their title and the impetration of this suit, they faltered in their claim of absolute and exclusive ownership, or that Parrish and those deriving title from him, at any time during that period, brought the asserted ownership into question. It is almost impossible to believe he was ignorant of the pretensions of the actual occupants; but whether he had notice of them or not, is of ho consequence, so far as the question of adverse possession is involved. The character of adverse possession, says Mr. Justice Sergeant, is given, not by proving notice to persons interested, but by the nature of the acts done by the party. To constitute disseisin, it was never held to be requisite, that noticé should be sent to the disseisee, or that it must be proved he had,knowledge of the entry and ouster committed on his land: Lodge v. Patterson, 3 Watts, 77. From what, has been said, it will be perceived, the court below committed an error in saying to the jury that the defendants, « as purchasers under Daniel McMillan, cannot set up twenty-one years’ possession, under title derived from him, ’as a bar to plaintiff’s recovery.” The instruction should have been, that if the jury believed Tingley’s original entry was exclusive of and adverse to, the title of Parrish, and this adverse possession continued uninterruptedly for twenty-one years from the inception of his claim in 1828, of whiqh there is very satisfactory proof; it constituted a constructive ouster, and, by the operation of the statute of limitations, conferred an- indefeasible estate in fee, against which the plaintiff was not entitled to recover. In arriving at this conclusion, we are not unmindful of the case of Stockwell v. Robinson, 1 Barr, 477, which, superficially examined, might seem to point to a different doctrine. But that case did not turn upon the efficacy of the statute operating upon a possession so com-’ menced; nor was it determined upon the point we have last Considered.

It will be perceived, nothing hks been said on that part of the case depending on the attainder of Andrew Allen for high treason, as it was not made matter of exception here. Though the errors assigned have not been discussed in detail, it is believed, what has been said covers them all, rendering further notice unnecessary. For the error pointed out in the charge of the court;

The judg’ment is reversed, and a venire de novo awarded.