McDermott v. Hoffman

The opinion of the court was delivered, November 6th 1871, by

Siiarswood, J.

The 1st assignment of error has been abandoned, it having been ascertained that it was not founded on fact. The 2d assignment is to the rejection by the court below of the certified copy of an agreement between the original owners of the surveys, or the lands in controversy, produced by them before the board of property upon a caveat dated April 6th 1795, to the acceptance of the returns of certain surveys. It was offered as evidence of location and boundaries. It is too clear for argument and, indeed, has not been disputed, that this agreement could not shift the actual location of the tracts in controversy, as asceriained by the original surveys made on the 24th and 25th August 1794 — returned into the office of the surveyor-general, and patents thereupon issued to the owner of the warrants on February 23d 1796. But it is contended that this agreement is evidence of an admission by William Barton, the patentee, of the location of the surveys, which ought to have been allowed to go to the jury to be considered by them with the other evidence in the cause upon that subiect. The agreement upon its face appears to have been made upon the basis of a draft or plat by Daniel Turner, “ which said draft,” it recites, “is now before them,” the parties. This draft or plat was not produced, and its non-production is not attempted to be accounted for except by the mere allegation that it is not to be found in the land office. From nothing before us can we infer that it was an official paper which ought to have been in the land office — although it is not improbable that it was — for Daniel Turner was an assistant of Col. Canan, a deputy surveyor at that time. “ He made numerous surveys, and Col. Canan returned them to the office7 Barr 72. Without that draft, to argue from an agreement, which at the most settles the boundary line of the surveys belonging to John Hannum and Charles Dilworth, as described in it, should have any legal operation in determining the proper location on the ground of the surveys of the Philip Wager and Hillery Baker warrants, belonging to William Barton, was a pure matter of speculation, and would be much more likely to mislead the jury than to assist their inquiries. With the draft before them upon which, perhaps, the surveys upon these very warrants were laid down, it might have been of some assistance; for the agreement expressly provides “ that the surveys made or to be made for the before-mentioned parties to these presents (including those of William Barton, the patentee), as the same are laid down in the general draft aforesaid for the other parties therein named, shall be and remain as they are therein laid down and described.” It is evident that no alteration was intended to be made in the location of these other surveys, and without Daniel Turner’s draft we are thrown necessarily upon other sources from which to determine their location. In Collins v. Barclay, 7 Barr 67—a case heard and decided in this court more than twenty-four years ago — an ejectment for one of the tracts in this block of surveys in which this agreement was in evidence, it was determined that it could have no effect upon the question of location, as I understand the opinion of Mr. Justice Burnside, either in fact or in law. He says: “ No regard was paid to the calls of the warrants, for that would have made them interfere with each other; nor to the agreement ; but the returns were generally if not altogether made by Turner’s draft. The owners of this large body of warrants never complained. Those returns were received and have remained accepted in the land office for more than half a century; and whether there was a subsequent agreement of the parties changing the former arrangement before the board of property, is at this distance of time immaterial. The tract in question, as well as the lands in general, have been long since patented. The original owners have all paid the debt of nature; neither their representatives nor any subsequent intruder will be allowed to disturb their returns.” As indeed the agreement proposed merely to settle the boundary line of the Hannum and Dilworth surveys, with which there seems to have been some interference, and to be a quit-claim or release by the owners of these surveys “ to all other lands included or described in the aforesaid draft (namely of Daniel Turner), lying to the northward and north-eastward of the before-mentioned line (namely the agreed boundary of Hannum and Dilworth), running the course of south 30 degrees east;” it is not easy to perceive how this agreement can legitimately be considered as an admission by William Barton, that the compromise line or the Spanish oak at the corner where it starts were monuments, which had anything to do with determining the particular location of the Philip Wager and Hillery Baker surveys which by concession lie at a considerable distance from it. We are of opinion, therefore, that there was no error in the rejection of this paper.

The 3d error assigned is to the rejection of the record of a suit, William Barton against Jacob Smith, in the Court of Common Pleas of Huntingdon county. This suit was between other parties, and for other lands, though it may be,lying in the same block with those now in dispute. This record could certainly not have been given in evidence by William Barton or the plaintiffs below claiming under him against the defendants below; why then should it be admissible in their favor and against him ? I understand the contention now to be, that it may be evidence to show what were the grounds upon which he rested his claim in that case, and the location he then set up; and this by the notes of the testimony attached to the bills of exceptions which form part of the record. I pass entirely the question whether the bill of exceptions though attached to the record, is strictly any part of it, or if it is, whether the signature and seal of the judge, diverso intuitu, to certify his rulings to the court of errors, is a sufficient authentication, and can supply the oath of a witness that the evidence is the full substance of what the witnesses said. These notes of testimony are offered, it is said, as admissions by William Barton himself. But this is to carry the doctrine of admissions much further than it ever has been done. No decision can be found, which holds that the evidence of a witness produced by a party on the trial of a cause can be used against him as an admission in any subsequent suit between other parties, and relating to another subject of controversy. See Ayres v. Wattson, 7 P. F. Smith 360. It would be perilous, indeed, to any party to produce and examine a witness in court, if all that he might say could afterwards he used in evidence against him as an admission. He admits, indeed, by producing him, that he is a credible witness but only pro hae vice, so far as that case is concerned. He does not admit that everything he says is true either in that or any other proceeding. A party in the same suit may give evidence which contradicts his own witness or shows that he was mistaken, though he cannot directly impeach his veracity. The case of Truby v. Seybert, 2 Jones 101, cited in the paper-book of the plaintiffs in error, does not sustain their contention. The point ruled in that case was, that if a party or his counsel in his defence make a concession of a fact within his own knowledge, which is pertinent in another issue with another plaintiff, the record of the first suit as introductory to evidence of the concession, and the concession itself, though proved by parol, are good evidence for the new plaintiff; and what is said by Mr. Justice Bell in that case is certainly true that a record between other parties may be admissible in evidence whenever it contains a solemn admission or judicial declaration by any of such parties in regard to the existence of any particular fact. But this certainly falls far short of holding that what is declared by a third person, produced as a witness, is to be received and treated as an admission by the party producing him.

The 4th assignment of error is to the rejection of a certified copy of the caveat of Richardson and Norney, dated September 26th 1794, against the acceptance of the surveys known as the Barton surveys, which was accompanied with a re-offer of the agreement of April 6th 1795, before referred to. The same reasons which have been given to show the irrelevancy of that agreement, standing by itself, apply equally to this offer, and this' assignment is therefore dismissed.

The 5th error assigned is to the admission of the testimony of James L. Grwinn, a witness called by the plaintiff below for the purpose of proving that the location claimed by the plaintiff on a former trial in the United States court in 1857, the record of which was in evidence, was the same as alleged in the present trial. That former suit was clearly admissible as persuasive evidence in this: Koons v. Hartman, 7 Watts 20; Levers v. Van Buskirk, 4 Barr 309. At all events it was in evidence, and we are not now dealing with the question of its admissibility. When the record of a former suit is in evidence it is settled that a party may give parol evidence of what transpired on the former trial, in order to show that it was the same subject-matter, and the same title which was then passed upon: Brindle v. McIlvaine, 10 S. & R. 282; Haak v. Breidenbach, 3 Id. 204; Carmony v. Hoober, 5 Barr 305. This of course is not to contradict the record hut to explain it.

The 6th assignment of error is to the admission in evidence of the assessment of unseated lands in Allegheny township, and the treasurer’s deed for the Philip Wager tract. The book produced was proved by one of the commissioners of the county to be the original assessment. This book contained the name of the warrantee, the number of acres in the tract, the valuation and the rate. The amount of the tax was not carried out, but that was a mere matter of calculation. The land becomes debtor for the tax by being returned assessed and valued, and the rate per cent, fixed: carrying out the amount of the tax is merely clerical: Heft v. Gephart, 15 P. F. Smith 510.

' The 7th assignment of error is to the admission of several other treasurers’ deeds for other tracts in the same block for the purpose not of showing title but location. This was objected to specifically because the offer was not preceded or accompanied with evidence that there was an assessment and valid sale for taxes. Undoubtedly had these deeds been offered to show title under them, the objection would have been a good one. But if they would have been admissible if shown to have been founded upon valid sales to prove location, they were equally admissible without such preliminary proof: Sample v. Robb, 4 Harris 319; McCausland v. Fleming, 13 P. F. Smith 36.

The 8th and 12th assignments of error may both be considered together, as they relate to the defence set up of the bar of the Statute of Limitations. There was no evidence of possession by the defendants of any part of the Philip Wager and Hillery Baker tracts, which were the premises claimed in this ejectment. There was no evidence, as the learned judge instructed the jury, that the field cleared within the Roop survey was within that portion of it which interferes with the Philip Wager and Hillery Baker surveys; nor has any such evidence been pointed out to us upon this record. The burden of establishing an adverse .possession to create the bar of the statute is undoubtedly upon the party who sets it up. The evidence given by Anthony Meyers and Luke Maguire is of the vaguest kind. They prove at most only an improvement upon some part of the Thomas Roop survey, but there is nothing in what they say from which an inference can be drawn that it was within the lines here claimed by the plaintiff below. If so, the evidence of the assessment of taxes to Michael McDermott for seated lands was clearly inadmissible. It was no evidence of title or possession, and while it might have been corroboration of other evidence on that subject, if any such had been given, in its absence it was totally irrelevant.

As to the 9th assignment of error, that after the court had ordered the cause to be tried by a struck or special jury, no special venire facias was issued to summon the jury so selected, it is enough to say that no Act of Assembly requires it. The learned counsel for the plaintiffs in error falls back upon the common law of England, and he may be right in regard to that law; for in England when a special jury is ordered, the sheriff attends with his freeholders’ book, from which the prothonotary of the court selects indifferently forty-eight names, from which the jury is struck and a venire issues to summon them: 3 Bl. Com. 357. But we have in this state a common law of our own, founded on uniform usage, and adapted to our habits and principles. Special jurors are not required to be freeholders, and a special jury is always struck from the panel returned to the general venire issued for the court, containing the names “which shall have been drawn from the proper wheel for the ensuing court.” A special venire is only required in case of a view: Act of April 14th 1834, Pamph. L. 368. Be this as it may, the defendants "did not challenge the array, which was the only proper mode of raising the objection. At all events, the exception should have been taken before the jury were sworn. They went to trial without objection, and it is too late for them now to complain.

The 10th assignment of error is, that the court allowed the plaintiff to challenge peremptorily one of the jurors upon the struck list. The words of the Act of Assembly of March 29th 1860, Pamph. L. 344, are: “ on the trial of all civil suits now pending, or hereafter brought in any of the courts of this Commonwealth, the plaintiff and defendant shall each have four peremptory challenges.” However it may have been, had the question been res integra, it must now be considered as set at rest both by inveterate practice, and the early recognition of that practice by this court in Schwenk v. Umsted, 6 S. & R. 354.

The 11th assignment of error is grounded upon what was evidently a mere lapsus linguae of the learned judge in stating the date of the surveys on the Philip Wager and Hillery Baker warrants to have been December 1794 instead of August of that year. In the connection in which the mistake occurred it could not have misled the jury, and even if it might, it was the duty of the defendants’ counsel to have called the attention of the learned judge to it at the close of his charge, when no doubt it would have been at once corrected. %

The remaining assignments of error are to the charge of the learned judge upon the principal question in the cause — the proper location on the ground of the Philip Wager and Hillery Baker surveys. This was a question of fact for the jury, and so they were distinctly instructed. The views of the learned judge upon the evidence expressed upon this point did not trench upon their province. Upon a question of this character, to be determined upon a great mass of complicated testimony, alleged to be contradictory and conflicting, it was not only his right but his duty to assist the jury by his knowledge and experience in threading the maze. We see no just ground which the plaintiffs in error have to complain of any part of the charge, which was certainly both learned and lucid — two qualities which do not always go together.

Judgment affirmed.