Biddle v. Noble

• Decision Date: 08 May 1871
• Citation: 68 Pa. 279
• Parties: Biddle <I>et al. versus</I> Noble <I>et al.</I>
• Court: Pennsylvania Supreme Court

68 Pa. 279

Biddle et al. versus Noble et al.

Supreme Court of Pennsylvania.

March 29, 1871.

May 8, 1871.

March 29th 1871.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Warren county: No. 147, to January Term 1870.

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J. R. Clark and W. D. Brown, for plaintiffs in error.—The intention of an occupant as to the land he intends to seat determines whether it is seated or not: Ellis v. Hall, 7 Harris 292; Schaeffer v. McKabe, 2 Watts 421; Campbell v. Wilson, 1 Id. 503; Wallace v. Scott, 7 W. & S. 249; Miliken v. Benedict, 8 Barr 169. The contract with Middleton, the adoption of the river, and the surveys of Richardson and Hunter for boundaries were sufficient to sever the land for taxes, id certum est quod certum reddi potest: Erwin v. Helm, 13 S. & R. 151; Burns v. Sutherland, 7 Barr 103; Clement v. Youngman, 4 Wright 341. No particular mode of severance is necessary: Foster v. McDivit, 5 W. & S. 362; Crum v. Burke, 1 Casey 377. An uncertainty in a grant is remediable by the grantee as a grant is to be construed most favorably for him: Coxe v. Blanden, 1 Watts 533; 2 Bacon's Abr. 441, Election; 2 Washburn on Real Property 662.

C. H. Curtis and R. Brown (with whom was _____ Stone), for defendants in error.—The separation by an intruder must be by lines distinctly marked on the ground: Jackson v. Sassaman, 5 Casey 106; Erwin v. Helm, 13 S. & R. 151; Green v. Watson, 10 Casey 332; Ellis v. Hall, 7 Harris 292; Dietrick v. Mason, 7 P. F. Smith 40.

The opinion of the court was delivered, May 8th 1871, by AGNEW, J.

Nothing is better settled than this — that an entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purchase of residence or for cultivation, makes the tract seated and prevents a sale for taxes: Campbell v. Wilson, 1 Watts 504; Kennedy v. Daily, 6 Id. 269; Wallace v. Scott, 7 W. & S. 247; Mitchell v. Bratton, 5 Id. 451; Wilson v. Watterson, 4 Barr 214. The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes illegal: Sheaffer v. McCabe, 2 Watts 421; Nash v. Bum, 5 Id. 441.

That the tract known as 5278 was seated before the year 1826 is beyond all dispute. James Middleton had an improvement on the tract for many years before his purchase with no defined boundaries, except that as between him and Hunter and Richardson, also occupants of the tract, they had corners to mark their respective claims on the river side of the tract. It is therefore perfectly clear that the 600 acres sold in 1834 for the taxes of 1832 and 1833 were seated, unless the contract of Maybin with Middleton itself severed the 200 acres sold to Middleton from the remainder of the tract, or the boundaries of the 200 acres were sufficiently defined by actual lines on the ground to sever it at some time before the assessments of 1832 and 1833.

The question of fact, whether the Middleton 200 acres were at any time severed by survey or lines, was most distinctly submitted to the jury by the judge. He says: —

"Middleton took a contract for 200 acres to include his improvements on the river, dated April 11th 1826. Was there any, and if any, a sufficient designation of these 200 acres to sever it from the rest of the tract? No survey or lines were run at the date of this contract. The improvement it included had been commenced sixteen years before, as the evidence informs us, and appears to have been kept up without interruption. Improvements had also been made and occupied prior to this, perhaps, on other parts of this lot, afterward appropriated to Hunter below, and Joshua Richardson above. But independently of them, the Middleton improvement had clearly, for many years, made No. 5278 a seated tract. Was there such a demarcation of the Middleton 200 acres as to throw out or cut off the balance of the tract, and make it unseated? If so, when and by whom?"

Here, then, the question is most distinctly put to the jury, and not restricted to time or person. It is the simple question, Was there a demarcation, in point of fact, at any time or by any person?

Upon the facts the great controversy was, whether a survey was made by William Connelly in 1827? "Both parties," says the judge, "seemed to have spent their energies and industry mainly on this part." Henry McGee was the witness relied on by the plaintiffs to prove a survey. The judge proceeds to discuss the testimony on this point, and then winds up thus: —

"If Magee is true, and such a survey was made, and lines run at the time alleged in 1827, then it would and did work a severance of the seated from the unseated parts of the tract, and subject the balance to assessment and sale as unseated. This would entitle the plaintiffs to recover so far as this question controls the right."

Now I do not see how it was possible to submit the question of separation of the 200 acres as a fact more fairly. The jury were left to say whether at any time and by any person the demarcation was in fact made. The verdict is a distinct answer, therefore, that the two hundred acres were never severed by survey or demarcation at any time, by any person.

This left but a single question — Was the agreement of sale by Maybin to Middleton ipso facto a severance? It will not do now, after the verdict has answered that no separation in fact was made, at any time or by any person, to run back to the ground, and to claim lines, corners or anything else, as adjunct to or to help out the terms of the agreement. The land was not severed on the ground. Was it severed by the terms of the writing?

The agreement recites that Middleton owns an improvement on which he now resides on the land of Maybin, and on the east side of the Allegheny river, in Deerfield township, and then proceeds to sell to him 200 acres of said land for the sum of $400, to be paid as thereinafter mentioned; to be bounded by the Allegheny river westwardly, and to include the said improvement, but not to interfere with the improvement-claim of any other person on the lands of the party of the first part. This is the whole description, and it is clear it defines no land, nor could a surveyor take the agreement and run out the 200 acres according to any terms set forth in the agreement. So cautious was the counsel of the plaintiff in error of this fact, that he fell back upon the right of Middleton himself to make a survey under the contract. But this is an immaterial question, for if we concede his right to lay off his own 200 acres, even without notice to Maybin, the mere right to do so does not separate the 600 acres. Did he exercise his right, did he lay off his own land? If he did, then there was a severance; if he did not, there was none. The verdict of the jury answers this question. Middleton never exercised his right, and his right concerned only his own land, not the 600 acres. The error of the judge, in construing the contract rights of the parties to it, if there were an error, did not touch the question. But the judge did not wholly...