Hancock v. McAvoy , 151 Pa. 439 ( 1892 )

Opinion by

Mb. Justice Stebbett,

This action of trespass was brought by George W. Hancock v. Thomas B. McAvoy to recover damages alleged to have been done by the latter to certain cemetery lots claimed by plaintiff. Both parties claimed title in said lots under John W. Tilford, who, in 1848, by deed duly recorded, acquired title in fee to the twerity-two acre tract of land on part of which said lots and others were located.

To maintain the issue on his part, plaintiff gave in evidence deed, May 6, 1850, recorded September 17, 1850, from said Tilford to John M. Lisle, granting unto the said Lisle his heirs and assigns “ the exclusive and entire right of interment and sepulture in all and every of those two hundred lots in the Philadelphia Cemetery, situated,” etc., “to have and to hold,” etc., “ for the uses and purposes of sepulture only, 'and to and for no other use, intent and purpose whatsoever.”

The above mentioned lots include those alleged to have been damaged by defendant.

For the purpose of tracing title to himself, the plaintiff gave in evidence deed, September 16, 1850, recorded November 13, 1858, from said Lisle to Francis Troubat, and from said Troubat, by sundry conveyances, etc., the last of which is October 10, 1887, recorded April 26, 1888, from Edwin L. Fisher to said plaintiff. He then introduced evidence for the purpose of showing that some of said cemetery lots were damaged by defendant.

For the purpose of tracing title from said Tilford (the common source of title) to himself, the defendant gave in evidence sundry deeds, etc., viz.:

1. Declaration of trust, as to the undivided fourth parts of said twenty-two acres of land, embracing, inter alia, said cemetery lots, May 11, 1848, recorded January, 1849, from said John W. Tilford to said John M. Lisle, George Wood and George B. Zieber.

2. Deed, January 23, 1851, from said Tilford to Leo T. Salaignac.

3. Deed, March 15, 1851, from said Wood to said Salaignac.

4. Deed, April 9,1851, from said Zieber to said Salaignac.

5. Deed, April 30, 1851, from said Lisle to said Salaignac.

The four last mentioned deeds were all recorded August 23, 1855, and are the same that are mentioned in the first four specifications of error, respectively.

6. Deed, October 23, 1857, recorded December 26, 1857, from said Salaignac to Samuel Grant, who died in 1872.

7. Deed, February 23, 1886, recorded March 3, 1886, from William G. Grant and others, heirs at law of said Samuel Grant, deceased, to the Philadelphia Cemetery Company.

8. Record, Court Common Pleas No. 2 Philadelphia,—decree amending charter of Philadelphia Cemetery Company, etc.

9. Deed, February 24, 1886, recorded March 3, 1886, from said Cemetery Company to defendant Thomas B. McAvoy.

Tilford’s deed to Salaignac, January 23, 1851, recorded August 23, 1855, for said twenty-two acres of land, including the land on which lots in controversy are located, contains the following express reservation: “ Excepting out of this grant all lots which have heretofore been granted by the said John W. Tilford to any person or persons or bodies politic for burial lots.” The warranty clause in the deed contains substantially the same exception. Lisle’s deed to Salaignac, for his equitable interest under Tilford’s declaration of trust, purporting to convey his “then right, title, interest, property, claim, demand,” etc., in and to same land, contains a recital of said exception, of all lots theretofore granted by Tilford for purpose of sepulture. The same recital is also contained in the respective deeds of Wood and Zieber aforesaid. Lisle had theretofore conveyed the cemetery lots in controversy to Troubat in September, 1850; but his deed to Troubat was not recorded until November 13, 1858, more than seven years after the conveyances from Tilford and others to Salaignac were made, and more than three years after said last mentioned conveyances were recorded.

It thus appears, on the face of the four deeds by which Salaignac acquired title, that all lots which had theretofore been granted by Tilford, in whom the legal title was, for purposes of sepulture, were expressly excepted from the operation of those deeds. They were not intended to be conveyed, nor were they, in fact, conveyed to Salaignac. He acquired no title to them; and, so far as they are concerned, he had no title thereto which he could convey to his vendee.

The paper, dated April 26, 1851, executed by Salaignac, shows it was well understood by him that he acquired no title to the lots now in controversy. After reciting that Lisle had executed and delivered to him “ a deed conveying his interest in the land now occupied 'as the Philadelphia Cemetery Company,” he says : “ It is hereby agreed and acknowledged that the said deed is and shall in nowise affect or impair the right of said Lisle to two hundred burial lots in the said cemetery, particularly described in a certain deed of John W. Tilford to said Lisle, dated the sixth day of May, A. D. 1850, recorded September 17, 1850, but that the right of the said Lisle to the said lots shall remain in like manner as though the said deed to the undersigned had not been executed and delivered.”

This paper was not recorded, nor does it appear that any of the parties, claiming through or under Salaignac, knew of its existence; but that is of no consequence. It shows what Salaignac’s own title papers and the record of Tilford’s deed to Lisle show, and that he then knew he was acquiring no title to the lots in controversy, part of the lots theretofore conveyed by said Tilford for the exclusive purpose of sepulture. Tilford’s deed to Lisle, as we have seen, has been on record since September 17, 1850. Salaignac and everybody about to take title under or through him, down to and including the defendant himself, had record notice that those lots, at least, had been conveyed by Tilford as and for burial lots; and, on the face of the deeds by which Salaignac acquired title to other portions of the land, they had the same kind of notice, that those lots and all others theretofore granted by Tilford for same purpose, were by the very terms of the deeds to him excluded from their operation.

We fail to see that there was any question of fact to be sub mitted to the jury, in relation to notice or knowledge that said lots were not embraced in the deeds to Salaignac. The jury should have been instructed that Salaignac and all persons claiming through or under him had' at least constructive notice that the cemetery lots, in question, were excluded from the operation of the deeds of Tilford and others to him.

The ninth and twelfth specifications are therefore sustained. The first to sixth, inclusive, are not sustained. There could be no harm done by admitting the deeds in evidence. The court could not determine, in advance, that they were immaterial or irrelevant.

The testimony referred to in the seventh specification should have been excluded. It was irrelevant.

There was no error in refusing to charge as complained of in the eleventh specification. Whether the lots in question were injured by any act of the defendant, and, if so, to what extent, were questions for the jury.

The remaining specifications are not sustained.

Judgment reversed and a venire facias de novo awarded.