Floyd v. Kulp Lumber Co.

Opinion by

Mr. Justice Stewart,

To defeat plaintiffs in their action, defendant relied upon a title which had its origin in a treasurer’s sale of the land in dispute for unpaid taxes, assessed for the year 1838 on the land as unseated. No question was raised as to compliance with legal requirements in connection with this sale, or that the defendant had legally succeeded to the title acquired thereby. The one question in the case was, whether this particular tract was assessed for the year 1838 as seated land as well. It was conceded that if assessed as seated land for that year, it was not liable to sale for taxes assessed as unseated land, and that a purchaser under such a sale could acquire no title. The defendant having exhibited a title derived from a treasurer’s sale for taxes assessed on the land as unseated, entirely regular in form, and long subsequent to the acquisition of the title exhibited by plaintiffs, derived from a like sale, the prima facies was with the defendant, and the burden was on the plaintiffs to prove the alleged defect in the later title; that is, that the land was assessed in the year 1838 as seated land, and therefore exempt from sale. To this end they offered the assessment lists for the years 1837, 1838, 1839, 1840. All were embraced in one offer. The relevancy of the list for 1838 is obvious; but how the other lists could reflect any light upon the question at issue is not apparent. If they had any relevancy, it certainly was not disclosed in the offer, and we see nothing in the case that made them pertinent, at least in the connection in which they were offered. Had prejudice resulted from their admission, it would have been sufficient ground for reversal under the first assignment of error; but so far as we can see the error was harmless. The lists show that in each of these years this particular tract, distinguished as the land included in the George Hill warrant, containing 400 acres in Barree township, was assessed as unseated land. The title to the tract was admittedly in Henry Steely, who died in 1838. The lists of seated land during these same years showed several tracts assessed in the name of Henry Steely, one of them being for 400 acres in Barree township, but without any other description whatever. The mere fact that the assessments are upon tracts of land of equal acreage, would not of itself warrant an inference that the tracts were one and the same. To establish their identity, plaintiffs were allowed, under objections to be considered later on, to introduce in evidence the record as it appears in the continuance docket of a former action of ejectment brought to No. 38, January Term, 1845, for the same tract of land, between Adam W. Benedict plaintiff, and David Milliken and Samuel Milliken defendants, with the writ and other papers filed in that case; “for the purpose” — so runs the offer — “of showing that the land in controversy in No. 38, January Term, 1845, is the identical land of which the land in the present suit is an undivided one-half part; and for the further purpose of showing that on the trial of that case David and Samuel Milliken, under whom the defendant claims title, proved that the land in controversy in this suit,, which was assessed on the unseated list in Barree township in 1838, is the identical land assessed in Barree township on the seated list to Henry Steely for the year 1838, and that the taxes on the seated list for 1838 were paid before the sale to David Milliken in 1840.” That the evidence included in this offer had tendency to prove the fact contended for, is quite apparent; and the only question was as to the weight and force to be allowed it. The effort on the part of the defendant in that action was to defeat the plaintiff’s claim of title under the treasurer’s sale to Benedict, by showing that in the years 1839 and 1840 the tract now in dispute was assessed as seated land. This was one of the" questions submitted to the jury and the verdict was for the plaintiff. On appeal to this court— Milliken v. Benedict, 8 Pa. 169 — the judgment was reversed with a venire, upon considerations which do not here concern us, and which therefore need no further reference. The last entry in the continuance docket under this particular number is, “Now, 15 Nov., 1851, plaintiff becomes nonsuit. Judgment.” It thus appears that there was no judicial determination of any matter in that case which could in any wise prejudice the defendant in this. The effect of the reversal of the judgment was to place the parties to the action in the same condition as they were before the judgment was rendered; their respective rights after reversal were just what they would have been had the case never been tried. How or why the plaintiff “became non-suit,” does not appear, nor is it of any consequence to inquire. It is enough to know that it could not have been because of anything the defendants had done. That judgment followed non-suit is immaterial; for neither judgment nor verdict helps in any way to identify the land in controversy as the land that was assessed as seated. No facts were established by either side through any judicial inquiry touching the merits of this controversy. It follows that the verdict and judgment being wholly irrelevant, were improperly admitted. Not so, however, with respect to the papers in the case — the pleadings, the requests for instructions, and the assignments of error. These were offered as extrajudicial admissions on the part of the Millikens that the land they were claiming was in fact seated land in 1838. It may be that the requests for instructions and assignments of error show more or less of an inconsistency between the positions taken by the defendants in that cáse and those taken by the defendant in this. If there is anything in them which can properly be construed as an admission by the Millikens, either express or implied, of the fact here asserted by the plaintiffs — that the land was seated in 1838 — they were certainly admissible in evidence. Touching this matter, it is quite enough for us to say that in our opinion this test was met. True, it may be, and doubtless is, that these requests and assignments were drawn by counsel; but in such case the law makes no distinction. “The concessions of attorneys of record bind their clients in all matters relating to the trial and progress of the cause:” Truby v. Seybert, 12 Pa. 101. “ That the pleadings in prior causes must be treated as the parties’ admissions, usable as evidence in later cases, must be conceded:” Wigmore on Evidence, sec. 1066. Nor does the fact that the action in which these papers were used was brought by other parties than the plaintiffs here, without privity between them, make them inadmissible. Between the defendants in that suit and the defendant in this, there is unquestionable privity of title, and this is quite sufficient. “In the case before us,” says Kennedy, J., in Gibblehouse v. Stong, 3 Rawle, 437, “the testimony offered and rejected was not of that character, which, in a technical sense, comes under the denomination of hearsay. It comes under what is considered the declarations or admissions of the party to the suit or his privies, that is, those under whom he claims; in respect to which the general rule of law is just as well settled that they shall be received in evidence as that hearsay shall not. All a man’s own declarations, acts and also the declarations and acts of others to which he is a privy, are evidence so far as they offer, any presumption against him, whether such declarations amount to an admission of any fact, or such acts and declarations of others to which he is privy afford any presumption or inference against him. . . . And this rule admitting the confessions and declarations of the party, extends not only to the admission of them against himself, but against all who claim or derive their title from him; in other words, between whom and himself there is a privity. . . . Privities in estate, such as vendor and vendee, assignor and assignee, stand upon the same footing in this respect to each other that privities in blood do. I know of no distinction.” Cowan & Hill, in Notes to Phillips on Evidence, No. 481, p..644, state the rule as follows: “The owner’s estate or interest in the same property afterward coming to another by descent, devise or right of representation, sale or assignment, in a word, by any kind of transfer, whether it be by act of the law or an act of the parties, whether the subject of the transfer be real or personal estate, corporeal or incorporeal, choses in possession, choses in action, the successor is considered a claimant under the former owner; but whatever he may have said affecting his own rights, before parting with his interest, is evidence equally admissible against his successor claiming from him, either immediate or remotely.' And in this instance it makes no difference whether the declarant be alive or dead; for though he be a competent witness, and present in court, his admissions are receivable. This doctrine proceeds upon the idea that the present claimant stands in the place of the person from whom his title is derived; has taken it cum onere; and as the predecessor may have taken a qualified right, or sold, charged, restricted, or modified an absolute right, and as he might furnish all the necessary evidence to show its state in his own hands, the law will not allow third persons to be deprived of that evidence by any act of transferring the right to another.”

This, then, was the state of the evidence — there was nothing outside the requests for instructions and assignments of error in the case of Benedict v. Milliken, which in the remotest way tended to identify the land in dispute with the land that was carried on the assessment list of 1838 as seated. We have not overlooked the charge of the court in that case, or what was offered as the judge’s notes of the evidence. The former was not admissible to prove what had been testified to on the trial; and the latter were not proven. The objection to each should have been sustained. The plaintiff’s case in rebuttal rested wholly upon the alleged admissions in the requests for instructions and the assignments of error. Whatever these admissions were; however definite and unqualified they may seem, they were open to explanation or correction; in other words, they were controvertible. It was not a question of construction of the legal effect of the writings; but a question of probative effect of the alleged admissions contained in them. Did these admissions identify the land then in dispute with the land on the seated list in 1838? This was a question which the jury alone could determine; and it was equally for the jury to say what weight the admissions were entitled to in this action. “Where a writing is not a dispositive instrument, but is put in evidence merely to show an extrinsic fact, it will be for the jury to say what inference is to be drawn therefrom. When documents are offered in evidence as the foundation of an inference of fact; whether such inference can be drawn from them is a question for the jury:” 11 Ency. of Plead, and Prac., p. 80. In giving binding instructions in favor of the plaintiff, the learned trial judge used this language, to indicate the ground upon which he based his conclusions: “The record of the case of A. W. Benedict v. David and Samuel Milliken, brought to No. 38, January Term, 1845, for the George Hill tract, showing that in that case David and Samuel Milliken, the then owners of the alleged tax title, proved that the taxes for 1838 on the George Hill tract, assessed to Henry Steely on the seated land of Barree township for that year, were paid before the sale to David Milliken in 1840; David Milliken and Samuel Milliken and their successors in title are therefore estopped from alleging the contrary. This we say to you is the law and controls this case, and it was thoroughly established by the testimony that has been adduced.”

As we have already said, the record in the case referred to shows nothing as proved; the verdict having fallen with the reversal of the case, it was inconclusive with respect to everything on which it rested. If in the course of the trial the Millikens asserted, either in'requests for instructions, or in their assignments of error, that the land was seated in 1838, or any fact which would warrant such inference, it was entirely competent to prove the fact as an admission binding on the present defendant. If they introduced the evidence of witnesses to the same end, it was entirely competent to show this fact also, for like reason. But whether they did one or the other, or both, were questions of fact for the jury in the present case to pass upon. The court could assume nothing with respect to them. And even though the admissions were established, still their effect would be for the jury. There being here no estoppel by record, to say that the alleged admissions might have such effect, would be to misapprehend entirely the nature and purpose of estoppel. Admissions work estoppel when they have been made to influence the action of others and have been acted upon. But how does it appear that Benedict in purchasing the tax title to the land in 1842 was influenced in any way by admissions made by the Millikens? Even if such fact were shown, there is no privity between the present plaintiffs and Benedict that would enable them to have any advantage from what Benedict himself might assert in this regard. Any fuller discussion of the several assignments of error is unnecessary. In what we have said, we have indicated certain specific errors to which the assignments have directed our attention; and these assignments are sustained. With the evidence confined within proper limits the case was for the jury.

The judgment is reversed and venire facias de novo awarded.