Schuylkill & Dauphin Improvement & Railroad v. McCreary & Jones , 58 Pa. 304 ( 1868 )

The opinion, of the court was delivered, July 2d 1868, by

Thompson, C. J.

Of the twenty-nine assignments of error we have on this record, I shall confine my attention almost exclusively to those embraced by the oral argument of the counsel for the plaintiffs in error; not regarding any of them as having been abandoned, however, but because after a careful examination of them, I am not able to discover any grounds to suspect error in the ruling of the learned judge below in regard to them, or which requires discussion.

1. The exemplification of the record from Berks county, received in evidence, which is the "first specification of error, was undoubtedly admissible by force of the certificate under the seal of the court that it was as full and entire a copy as remained of record in the office: 3 S. & R. 135; 16 Id. 106; 7 W. & S. 211, and 11 Casey 111. It was evidence; and if there remained a doubt of its effect in the shape it was .received, the court should have been requested to charge upon that. This assignment of error is therefore not sustained.

2. The 2d specification of error is to the admission in evidence of a deed from John Bartsche to Ludwig Schwartz, dated August 14th 1806, and the answers of the court in connection therewith to the 8th and 10th points of the defendants.

There is no doubt, both of the relevancy and admissibility of the deed, if there was sufficient evidence of its delivery, or if it was proposed to be followed by such testimony. This was undoubtedly the offer, and the court could not reject it. It was a step towards showing the foundation of the title to the plaintiffs, as also that of the. defendants. When it was offered, no court would in that stage have been justified in rejecting it. It was regularly executed to Ludwig Schwartz by John Bartsche, acknowledged and attested as “signed, sealed and delivered” to the grantee, and was in his agent’s possession when the latter contracted to sell the land to Snavely. Its acceptance by Ludwig Schwartz, made its recitals evidence against him. This was important as a step to show that Snavely knew, and had notice that the land was bound by a judgment against Christian Bartsche, when the latter conveyed to John Bartsche. That the testimony did not establish notice of this deed to Snavely, was no reason why evidence preparatory to the proof of that fact should not be received.

But the effect of the testimony was decided by the léarned judge in answer to the plaintiffs’ 4th point. The court there ruled, without qualification, that there was no evidence of notice to Snavely, and consequently none to affect his grantees, and that so far as this deed was concerned, the plaintiffs were entitled to recover, unless the defendants had title by the Statute of Limitations. This threw out of view all testimony on the point, in regard to which the deed was offered and received, and placed the controversy on the question of the Statute of Limitations alone.

The answer of the court to the defendants’ 8th point was exactly right, and what the plaintiffs cannot complain of. It conceded full effect to the recitals in the deed as against Ludwig Schwartz, but not as against a bon& fide purchaser from him, the deed not having been recorded. This did the plaintiffs no harm that we can see, if, as they contended, no such notice was proved to Snavely; and this the court held to be the case in answer to the plaintiffs’ 4th point, as already noticed. The answer to the defendants’ 10th point, which had relation to the effect of this deed to Ludwig Schwartz, just as carefully guarded its effect on third parties without notice, as did the answer to the 8th point. For these reasons we see no error either in the reception' of the testimony under the accompanying offer, nor in the answers of the court to the 8th and 10th points of defendants.

3. The next thing to be considered is the 3d specification of error, and it involves the validity of the seizure and sale of the land in controversy as the property of Joseph Keffer, a defaulting collector. Keffer was a purchaser of the land from Green ; Green had purchased it at sheriff’s sale, as the property of Christian Bartsche,who, it was alleged, had purchased from Ludwig Schwartz, as the last-mentioned deed showed. This was Keffer’s title.

The objection of the plaintiffs to the testimony,-the subject of this specification, seems, in part at least, to be founded in misapprehension. It was not a sale of land for taxes, which passed Keffer’s title. It was a sale, pursuant to the Act of the 11th April 1799, on process against a defaulting collector. The sale was made by the sheriff on -a warrant issued, pursuant to the act, by the county commissioners, for a debt due the county; and the law regulating the sale of unseated lands for taxes had nothing to do with it whatever. The authorities cited by the plaintiffs in error, relate to such sales, and are irrelevant to the question before us.

The objection that the sheriff did not sell on the day mentioned in the warrant, is not sustained by the citation of authorities to prove that a sale made after the return-day of a writ is void. This warrant had no return-day, and it was valid and effectual as long as the commissioners might choose, notwithstanding a day was mentioned for its execution. The officer was simply the agent of the commissioners in making the sale. Besides this, nobody but Keffer could take advantage of it, if it were an irregularity. It was nothing more, certainly. Nor of any supposed insufficiency of description. Nor does it matter in this issue whether Hammer, who purchased the tract, was treasurer or not, provided he bought it in for the county, and the commissioners recognised his act for the benefit of the county, and took his deed to themselves for the county. The conditions of sale were, as between these parties, not of the smallest consequence, after acknowledgment in court by the sheriff of the deed to the purchasers without objection on the part of the defendants. We think the county having thus become the proprietor of the land, it could lease or sell it at pleasure, and that the deed of the commissioners to Becker and others, was not void for want of authority to sell. The right to order the sale of land to secure the county against a loss of 'taxes collected, necessarily implies the right to do everything else necessary to render the security effectual. The commissioners could levy, or authorize an agent to levy, and if the county could thus acquire, it ought certainly to be able to dispose of property so acquired, or the right would be worthless. The right exists under circumstances like these, ex necessitate rei. Northampton County’s Appeal, 6 Casey 305, makes valid acts of county commissioners against the objection of strangers to the transaction. But I regard Vankirk v. Clark & Graham, 16 S. & R. 286, as entirely conclusive, as to the power of the commissioners in this case, to purchase and sell the property to secure the debt due the county. I cite the case without quoting from it. It covers in principle the entire' ground of this objection. In this view it is scarcely worth while to allude to, or invoke the effect of the acceptance of a lease from the county by Keffer, of the land seized and sold as his, for his default as collector. This was a waiver of objections on his part to irregularities, if any; and no stranger to the proceedings could make any.

4. I may notice here the assignment of error to the answer of the court to the defendants’ 6th point. The answer affirmed as law what it seems difficult to raise a doubt of, viz., that a tenant holding over, after the expiration of his lease, continues tenant. He undoubtedly does, and his ‘possession is the possession of the lessor, with like effect as possessed by the lessee, so far as the Statute of Limitations is concerned. This is so directly the result of fixed legal principles, that authorities are not needed to prove it. There was no error in the assignment.

5. The next error which we shall notice, is that assigned to the rejection of parts of the deposition of John Schwartz. It seems to us the court would have been justifiable in refusing the deposition altogether, had the objection to the manner in which it was alleged to have been taken been established. It is certainly objectionable, and seriously so, to take the deposition of the witness the day before the time appointed in the rule, in the absence of the other side, and then produce it before the witness and examine him from it. I presume, however, it-was not excluded on that ground, because the proof of the fact was not sufficient.

The most material parts of the deposition were admitted, and those parts rejected upon special objections, constitute the exception and assignment of error. It is sufficient to say of these, after a careful examination, that we think the court was entirely right in sustaining the objections. Objection having been made to the questions at the time they were propounded, and so noted when the deposition was taken, this should have put counsel on their guard against asking leading questions. It had not that effect, and if any injury has ensued to the plaintiffs from the ruling of the court, it is neither'the fault of the law, the court nor defendants’ counsel. We think the court committed no error in the matter of this specification.

The charge and answers of the court to points relating to the possession necessary to make title under the Statute of Limitations, have been examined. Whether it was upon the land in question, whether adverse, notorious and continuous for twenty-one years, were all questions for the jury, and properly submitted to them upon evidence, the sufficiency of which was necessarily for them, and their action is not before us for review.

The answer of the court to the plaintiffs’ 18th point, complained of as error, was in exact accordance with the point. The point was, “ That if during any one of the years, commencing from the 1st of April 1821, and ending April 1st 1824, Joseph Keffer did not occupy or cultivate the land as tenant for the county, and the county had no other possession, the chain of possession under which the defendants claim is wholly broken, and the verdict of the jury must be for the plaintiffs.” The point, on its face, as well as on the position assumed by the counsel for the plaintiffs in another part of the ease, which we have noticed, was predicated of the idea that if Keffer occupied the premises during either of the years between 1821 and 1824,- but without a lease from the county, the possession of the county as a proprietor was not continued. Hence the language “ if during any one of the years between 1821 and 1824.” The answer is, “Affirmed. If the possession was broken and finally suspended, without tenancy or occupancy, for one whole year before the period of twenty-one years’ continuous adverse possession elapsed, defendants cannot claim title under the Statute of Limitations.” This was a direct answer to what was asked, in view to the question of tenancy. It was not possible for the jury to have understood the court, that in order to break the continuity of possession, so as to defeat the statute, a whole year’s dereliction of possession must have occurred; for the learned judge had not only told the jury that the main question, in order to make title under the statute, was whether there had been “ a continuous' occupancy of the tract of land for the period of twenty-one years,” and had on this subject not only stated the necessity for continuous occupancy for that period, but referred to the requisites to be found stated in Groft v. Weakland, 10 Casey 304, in which uninterrupted continuous possession as a requisite, is distinctly asserted. If the answer misled the jury at all, which I cannot believe, it is chargeable to the point. The answer was right.

We see nothing in the record which requires correction;

And the judgment below is affirmed.