Goundie v. Northampton Water Co.

Coulter, J.

There is nothing in the first bill of exceptions to evidence. The deeds therein mentioned were properly admitted. The objection made by the defendant, that they were not relative or pertinent to the issue, is not sustained in point of fact; because they are material in making out the chain of title, by which the claim of the plaintiff below is sustained. The argument of the counsel for the plaintiff in error here, was as to the legal effect of the deed when connected with other facts. But whatever that might be was a matter of law, subject to instructions from the court when the whole case ivas submitted to the jury, and afforded no ground whatever for their exclusion as evidence. In McDill v. McDill, 1 Dall. 63, it was ruled, that any deed, when duly proved, might be given in evidence. But in subsequent eases—Faulkner v. Eddy, 1 Binn. 190, and Peters v. Condron, 2 Serg. & Rawle, 80—Chief Justice Tilghman said, that decision carried the law too far. It is now settled, that'to entitle a deed to be received in evidence, the grantor must have some interest, either in law or equity : 3 Watts, 95. But any evidence of title, however small, is sufficient: Zeigler v. Hautz, 8 Watts, 380. The grantors had some interest, undoubtedly: even the plaintiff in error admits it.

, The second bill of exception’ is of the same character. The grantor in the deed therein specified had an interest in the land in dispute, and the plaintiff below claimed under that deed.

The third bill of exceptions is also in the same category, precisely. The deed therein mentioned was part of the chain of title under which the plaintiff below claimed the land in dispute, and the legal effect of that deed was the subject of instruction from the court to the jury.

The certified copy of an old connected draft of adjoining surveys, found in the land-office by Jacob Sallade, surveyor-general, being admitted in evidence, and also a certified copy of a survey of a tract of land, in the name of Joseph James, certified from the land-office, furnish the fourth bill of exceptions. These copies of old connected drafts of the adjoining surveys found in the land-office, although they could not be operative as distinctive evidence of title, or any evidence of title, might be extremely -useful in fixing boundaries, and as illustrative of old lines; and we perceive nothing improper in their admission under the circumstances of the case. It is true that a survey cannot be given in evidence, without showing an authority to make it, or that it had existed and has been lost; but that is when it is offered as part of the process of acquiring title. Nothing is more common, however, than to receive the drafts of a surveyor in actions of ejectment, when the controversy is about boundaries, although he was employed by the party. And the courts appoint artists to survey the disputed part, and make drafts of the contiguous and adjoining surveys, when the dispute is in relation to boundaries. These drafts are not evidence of title, but they are evidence of locality, and, connected with other evidence, go to the jury for their value. A connected draft from the surveyor-general’s office is evidence not to make title, but to show whether there be any, and what, interferences: Robeson v. Gibbons, 2 Rawle, 45. Certified copies of papers in the land-office are admissible: Vickroy v. Skelley, 14 Serg. & Rawle, 372.

The fifth bill of exceptions is as to evidence rejected, which was offered by the defendant below. The offer did not go far enough. The record offered in evidence did not show that the Water Company was a party, but the contrary, and the defendant did not offer to show that it was privy. The evidence was therefore rightfully rejected, under the well-established rule, that records are only evidence between parties or privies. It was not even offered to show, in connection with the record, that the Water Company had any notice of the proceeding.

The court below could not have instructed the jury as prayed for, in the two first points submitted by the defendant, without committing the most flagrant error.

The partition did not convert the title to all the lands assigned to Mrs. Tilghman and her husband, by the operation of that partition to a title in fee-simple. There was no owelty, no bargain and sale, no creation of title or estate, nothing but a mere separation of the share of one party from the share of another. A partition leaves the title of the parties as it was. Mrs. Tilghman had the same title after the partition which she had before. That a partition was not conclusive upon the title of any one was ruled by this court, in a case decided at the last Pittsburgh Term, and not yet reported : Costen v. Merchants’ and Mechanics’ Bank. This alone would have been sufficient to justify the court in refusing the instruction prayed for.

But there was a mist thrown over this part of the case by the elaborate argument of the experienced and sagacious counsel of the plaintiff in error, which a short statement of the facts will clear away. By the will of the elder Allen he devised to each of his daughters portions of real estate in severalty, and also a portion to his son James in severalty, and then devised all the residue of his estate to his. children as tenants in common. James died intestate, and his part descended to his sisters as tenants in common. So that Mrs. Tilghman held a certain part in severalty, and of this part, or a portion of it, she joined in a deed with her husband to Davis, who conveyed back to William Tilghman in fee — and these were the two first deeds which the defendant below wished to shut out. But she also held,'in common with her sisters, certain other portions of the estate of her father, which fell to her by the death of James, and of this part they agreed to make partition, and as one of the sisters was dead, leaving minor children, an act of Assembly was procured and persons appointed to make partition, wbicb was done, and in the deed, as there was some difficulty about boundaries of those parts devised to the sisters in severalty, there was assigned to each their portion of that held in common, and also that held in severalty by metes and bounds, so as to fix exactly the boundaries — a clumsy mode, doubtless, for such persons to adopt, but it was such as they chose. The attempt of the defendant below is to make that deed of partition revest in Mrs. Tilghman the tract of land which she and her husband sold to Davis, and Davis conveyed back to William Tilghman in fee, and which he transferred for a valuable consideration in her lifetime, and to establish, that after the death of Mrs. Tilghman her husband was only tenant by the curtesy. But we are of opinion that the partition and the act of Assembly, in point of law, as they were clearly intended in point of fact, left the title of William Tilghman undisturbed, on his own right, as tenant in fee, and that the sale of it by him vested the title in fee in the purchaser. There is nothing in the third point submitted: The deed from Tilghman to the bank was upon record before Livingston sold to Miller, and afforded the notice which the law requires.

The fourth point of the defendant below has nothing in it. If the bank or Water Company, during the time they held the land, encouraged the defendant to purchase the title of Livingston, and encouraged him to make large improvements on the faith of that title, there might be something in it. But not giving actual notice of their title, even if they knew of defendant’s purchase, when they had put their title on record, and thus given the notice which the law requires, could not prejudice them. The last two points put, together are, that, as there is no evidence that the Northampton Bank acquired this land, to secure a debt, or for the use of carrying on their operations, it could neither hold nor sell, and that Tilghman’s deed to the bank, and that of the bank to the Water Company, were null and void, and that therefore the plaintiff cannot recover.

But these positions are as invalid as the others taken by the counsel for plaintiff in error. A corporation could not hold lands in Pennsylvania without a license by law; but it had the capacity to contract for them and pay for them, and a deed for full value would doubtless have divested the estate of the grantor, and vested it in the corporation, subject to the rights of the Commonwealth. And the grantee-might convey, subject to the right of the Commonwealth, who by virtue of the right of sovereignty or eminent domain, would be entitled to the fee. These principles are fully recognised in Leazure v. Hillegas, 7 Serg. & Rawle, 320. There is neither any rule of reason or of law that would assist Livingston or his alienee in their attempt to assume the land sold by Tilghman to ' the bank for full value. The Commonwealth alone, as ultimate owner of the fee, can interpose, and she only on a state of facts different from any disclosed in this case.

Judgment affirmed.