Brown v. Day

• Decision Date: 10 May 1875
• Citation: 78 Pa. 129
• Parties: Brown <I>et al. versus</I> Day <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 129

78 Pa. 129

Brown et al. versus Day et al.

Supreme Court of Pennsylvania.

March 15, 1875.

May 10, 1875.

March 15th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Monroe county: Of July Term 1874, No. 1.

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H. Green and W. Davis for plaintiffs in error.—As to the sufficiency of the search for the letter of Day and Saylor: 1 Greenl. Ev., sect. 558; 4 Phillips Ev. (n. 246 to p. 230) 441; U. States v. Doebler, Baldwin R. 519; Sweigart v. Lowmarter, 14 S. & R. 200; McConahy v. Turnpike Co., 1 Penna. R. 426; Parkins v. Cobbett, 1 Carr. & P. 282; Judson v. Eslard, 1 Alab. 71; Parker v. Wilson, 1 Harr. 461. As to the plaintiffs' title by possession, they cited Warner v. Henby, 12 Wright 187; Hoffman v. Bell, 11 P. F. Smith 444; Wheeler v. Winn, 3 Id. 131; Orr v. Cunningham, 4 W. & S. 294; Coxe v. Sartwell, 9 Harris 480; Miller v. Shaw, 7 S. & R. 142; Carlisle v. Stitler, 1 Penna. R. 6; Adams v. Robinson, 6 Barr 271; Hole v. Rittenhouse, 1 Casey 493; Young v. Herdic, 5 P. F. Smith 176. Mere payment of taxes by one having no title will not give such actual possession as to oust the holder of the legal title: Naglee v. Albright, 4 Whart. 291; Urket v. Coryell, 5 W. & S. 83; Sorber v. Willing, 10 Watts 142. Color of title is applicable only to the tract actually occupied, not to contiguous tracts: Baker v. Findley, 8 Harris 168; Hole v. Rittenhouse, 7 Id. 305; Wright v. Guier, 9 Watts 172. The legal title cannot be ousted by mere constructive possession: Hawk v. Senseman, 6 S. & R. 21; McArthur v. Kitchen, 27 P. F. Smith 62.

S. Holmes and H. W. Palmer, for defendants in error.—An absent deed in a chain of conveyance, may be supplied by a long-continued claim of title, with acts of ownership uncontested by adverse pretensions from him who is supposed to have conveyed: Hastings v. Wagner, 7 W. & S. 215; Warner v. Henby, 12 Wright 187; Fox v. Thompson, 7 Casey 172. The warrantee name is of itself no evidence that the title belonged to the person named in the warrant: Glass v. Gilbert, 8 P. F. Smith 287; Strimpfler v. Roberts, 6 Harris 283. Against a naked intruder upon wild land a conveyance will be presumed from a warrantee who has not been heard of for a long time, to one who has been taxed, and the taxes paid by him and those claiming under him Taylor v. Dougherty, 1 W. & S. 324; Kite v. Brown, 5 Barr 291; Hoey v. Furman, 1 Id. 295; Bell v. Hartley, 4 W. & S. 32; McCall v. Coover, 4 Id. 151. When several contiguous surveys become vested in one owner, they are to be treated as one tract; so that an entry upon any part under color of title is a disseisin of the whole: Hole v. Rittenhouse, 1 Casey 499; Nearhoff v. Addleman, 7 Id. 279. Naked possession is a good title against one putting occupant out of possession and showing no better title: Woods v. Lane, 2 S. & R. 53; Turner v. Reynolds, 11 Harris 199; Shumway v. Phillips, 10 Id. 151; McCalmont v. Venango C. & O. Co., 22 P. F. Smith 221. Although Amos Moore had been there by mere color of title, yet, having died in possession, those coming in under him had a better title than he by reason of the descent cast: Green v. Kellum, 11 Harris 259. The evidence of the loss of the letter was sufficient: Spalding v. Bank of Susquehanna, 9 Barr 28; Lee v. Lee, Id. 172; Flinn v. McGonigle, 9 W. & S. 75; Whitesell v. Crane, 8 Id. 369.

Chief Justice AGNEW delivered the opinion of the court, May 10th, 1875.

The argument in this case took a wide range, involving questions of abandonment, seisin, possession, casual entries, and other matters often important in determining questions of title. But the true attitude of this case presents only a single principal question, to wit: Whether the two plaintiffs, Israel Day and Samuel Saylor, had, in the year 1860, such claim or color of title to the Samuel Harvey tract as enabled them rightfully to pay the taxes. If they had, then the taxes being paid, and accepted by the treasurer in fact, and the misapplication of the money to the wrong tract being wholly his fault, as found by the jury, he had no right or authority to sell the land; the tax sale to S. J. Hollinshead, after payment of the taxes, was void, and the plaintiffs were entitled to recover: Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 315.

Then, had these plaintiffs such claim or color of title as authorized them to pay the taxes on the tract warranted in the name of Samuel Harvey? Had they such a title as the law would enable them to protect by payment. This must be determined by the facts in evidence. A warrant was issued in the name of Samuel Harvey, on the 17th September 1792, for four hundred acres of land on Trout creek, near the Lehigh, in Northampton county, upon which a survey was made on the 19th of November 1792, of four hundred and thirteen and three-quarter acres and allowance, the same land now in controversy. Wayne county was cut off from Northampton in the year 1798, by a line from the Delaware river to the mouth of Trout creek, on the Lehigh, running by this tract, and leaving it, as it was supposed, until recently, in Wayne county. It is found that a small portion only, probably ten or twelve acres, lie in Wayne county. In the year 1806 this Samuel Harvey tract and the Mary Harvey tract adjoining it on the northwest, another Samuel Harvey tract, and seven other tracts in the same vicinity, were sold as unseated lands for taxes by the sheriff of Wayne county, and conveyed together in one deed to Silas Kellogg. In 1807, Silas Kellogg conveyed two of these tracts (the Mary Harvey and the Samuel Harvey, the one in controversy) to John Stoddart. By deed dated in 1814, Joseph Tyson conveyed to James Tyson the undivided half of these two tracts, reciting a deed poll from John Stoddart, dated 24th May 1808, endorsed on the deed to Silas Kellogg for the same two tracts to Joseph and Jonathan Tyson. Jonathan Tyson also conveyed his undivided half to James Tyson in the year 1813. Before Jonathan had parted with his title he had built a saw-mill on the Mary Harvey tract, within a few perches of the northwestern boundary of the Samuel Harvey tract. James Tyson built another saw-mill on the site of the old one, a few years prior to his sale to George Craig, and several houses also, which were occupied from time to time by tenants. The testimony tends to show that the boundary line between the Mary and Samuel Harvey tracts had not been marked on the ground. The pool of the saw-mill dam extended beyond this boundary into the Samuel Harvey tract, and the evidence shows that timber for the mill was cut on both tracts. In 1847, James Tyson conveyed to George Craig the two tracts, Mary and Samuel Harvey, and a third small parcel, surveyed in the name of George Solliday, containing thirty-four acres, all together, and described as one tract of eight hundred and fifty acres and twenty-five perches, and allowance. In 1851, George Craig conveyed the same property described as one tract to Amos Moore. In 1858, Amos Moore devised one-half of his property in Monroe county to Stephen B. Moore, and the other half to be sold by his executors. In 1859, Stephen B. Moore conveyed his undivided half of eight hundred and fifty acres and twenty-five perches to Israel L. Day and Samuel Saylor, and on the same day the executors of Amos Moore conveyed the other undivided half of the same property to Day and Saylor. Thus it appears that these two tracts, Mary and Samuel Harvey, passed together into a single ownership so early as the year 1814, and have so continued until the time of the treasurer's sale in 1860 to S. J. Hollinshead. From 1847 they were not only held together as a single ownership, but were with the small tract of thirty-four acres conveyed together as a single tract of eight hundred and fifty acres and twenty-five perches. The mill and houses on the Mary Harvey tract have been occupied under the several owners down to the time of trial, and timber cut on both tracts. No claim has been made by Samuel Harvey, the warrantee, or taxes paid by him or any one under him or his title. He is wholly unknown, except as his name appears in the warrant. So far as taxes are shown to be paid by any one, it has been under the name of James Tyson and his successors, while the continued possession of the Mary Harvey warrant and joint ownership and use of it with the Samuel Harvey warrant, raise the presumption that all the taxes have been paid under that title. Here then was a bonâ fide claim of title under a sale supposed to be valid of the two tracts warranted in the names of Mary Harvey and Samuel Harvey, without molestation or interference of any one for a period of fifty-six years, and a joint ownership of the tracts as one, and control of both together as one body of land, conveying them together, and using them together by actual possession and improvement of one, and by backing up the water, and cutting timber upon the other. If such a claim of right cannot be protected from divestiture, by payment of taxes to prevent a sale, it is difficult to conceive of any interest in land but an absolute title, which can be so protected by payment. Had the division of Northampton county in 1798 thrown the Samuel Harvey tract entirely into Wayne county, as for many years it was believed to be, there would be no doubt of the right. Then the limitation of five years in the Act of 1804 would have confirmed the sheriff's deed. Clearly it was color of title, and would give effect even to the general statute of limitations in case of actual possession, such as there was of the ...