Dikeman v. Parrish
| Citation | 6 Pa. 210 |
| Parties | DIKEMAN <I>v.</I> PARRISH. |
| Decision Date | 27 June 1847 |
| Court | United States State Supreme Court of Pennsylvania |
Little and Streeter, for plaintiffs in error.—The tax sale under which plaintiffs claim, having been made prior to the act of 1815, should have been supported by proof of all the pre-requisites to such sale: Rex v. Clarke, 1 Cowper's Rep. 26; act of 1784. Here was no proof of the proper assessment of taxes for any year, nor that the warrant for the sale was issued by a legally constituted board of commissioners, nor that the sheriff, who (about two years after its date) seems to have executed it, was properly qualified for that purpose; nor that the land was advertised; nor, indeed, of any of the steps then required by law to give validity to such a sale. There was no such proof of loss of, and search for the original, warrant, as justified the court in admitting a paper purporting to be a copy, and which was without force from any fact, except that it happened to be found in the commissioners' office. The deed to R. Wells was not properly received, without better evidence of its acknowledgment than a memorandum of that fact made upon it. The docket of the court should contain such an entry, and, containing it, should be produced. Besides, on its face it shows a sale for taxes due in 1796, 1799, 1801, 1802, and 1804. The proof by us was, that this land was seated and cultivated by one Tarbox, as early as 1799. This sale was not until 1807, and that, (with perhaps the exception of 1796,) for taxes accruing while it was seated land, and therefore exempt from sale. Upon this question of seating, we gave much evidence; and it was manifest error in the court to charge the jury that defendants could not impeach this deed and title.
The case of Foust v. Ross, 1 Watts, 501, does not rule this. There the defendant gave no evidence whatever, and was a mere intruder, without rights of any sort. Here the defendants present a case of clear right, a title upon which they could maintain an ejectment; for the statute of limitations confers a title as much favoured by our law, as any other. Now, it was ruled in Foster v. McDivit, 9 Watts, 344, that, as between the former owner and purchaser, the doctrine of Foust v. Ross could not apply; nor is there more reason why it should operate here.
Did the transactions between McMillan and Parrish (two hostile claimants) take from the possession of the former its adverse character? First, they rely upon the contract of purchase. This was afterwards waived, and cancelled, by the agreement of submission made by those parties; and cannot, therefore, be now used for any purpose, by either party. Its implied admissions of title could not thereafter affect Daniel McMillan; much less E. Tingley, a bonâ fide purchaser, without knowledge even of its spent existence. The submission and award were but efforts to compromise their conflicting claims in this land.
They argued, that Elkanah Tingley acquired a title from the McMillans, which the lapse of twenty-one years would for ever quiet and repose. Graytracks, the improver, sold to Daniel McMillan.
This recorded title, Tingley bought; a title, upon its face, hostile to the whole world; and, with his successors, adversely held it twenty-one (and more) years longer. He paid for a title that reached many years back of the unknown negotiations between McMillan and Parrish, and began before the claim of Parrish had an existence. He, therefore, is not to be affected by the relation of landlord and tenant (even if that existed) between McMillan and Parrish, of which he had no notice. The court concede this, if it were not for the recording of the Parrish deed in Luzerne county, which they say is to us constructive notice! Constructive notice of what? Simply, at most, of the fact that such a deed and claim was so outstanding.
To E. Tingley, that Luzerne county record could be no notice of the separate and independent fact alleged, of tenancy by McMillan. The doctrine of constructive notice has never been pushed into such monstrous injustice. Knowledge of the one fact would by no means lead to knowledge of the other. And the principle now contended for is distinctly ruled in Moyer v. Zieber, 3 Barr, 242.
Butler and Ward, contrà.—We claim the land in question under a sheriff's sale for taxes previous to the act of 1815. In an action of ejectment founded upon such title against those who hold under one who had entered without right, it is sufficient to show that the title to the land in dispute was out of the Commonwealth, and that it is held by a deed from the sheriff, who sold for the non-payment of taxes. This is such a prima facie title as puts the defendant to the necessity of showing a better right; 1 Watts & Serg. 501. In this case, at most, but one individual fifth of three-fourths, or three-twentieths of land, was vested in Andrew Allen, at the time of his attainder for high treason; and by such attainder no more than that interest returned to the Commonwealth. So that the land claimed here (except as to this three-twentieths) was rightfully subject to assessment and sale for taxes; and even as to the excepted interest, under the intimation of the Supreme Court, 4 Watts, 151, from the length of time which the Commonwealth has neglected to assert its claim, the jury had a right to presume a grant. Having thus acquired a recorded title, the land is entered upon under us, by one under whom the plaintiffs in error claim; articles of agreement of sale and purchase are subsequently made; these followed by a written submission and award with regard to the possession of the land; and finally, a leasing of the same. The statutes of limitation do not, under these circumstances, apply to this case.
June 27. BELL, J.
As a leading subject of inquiry, this record first presents the question, whether the plaintiff below exhibited such a prima facie title to the land in controversy, as put him in a position to call upon his adversary to show a better, in bar of his claim to recover the possession. The validity of the warrant and survey, by virtue of which an estate in three thousand acres, situate on the waters of the Meshoppen, was acquired by Andrew Allen and his associates, Benjamin Chew, Samuel Meredith, Edward Shippen, Joseph Shippen, and Robert Wilson, is not questioned; nor is the fact disputed, that this land was afterwards sold, as unseated, by James Wheeler, the then sheriff of Luzerne county, to Roswell Wells, for non-payment of taxes assessed on the track in the name of Andrew Allen, and a deed therefor, duly executed and delivered by the sheriff to Wells, from whom the plaintiff deduces title, on the 29th of August, 1807. But the validity of this sale, as a means of passing the title of the warrantees, is impeached on two grounds. First, that the particular tract, the subject of this action, was actually seated when a portion of the taxes, for the non-payment of which it was subsequently sold to Wells, was assessed upon it. And, secondly, that the plaintiff failed to show a strict and literal adherence to the directions of the several statutes which then regulated the taxation of unseated lands, and the sale of them for non-payment. The first of these objections may be disposed of in a few words. It appears from the evidence adduced on the trial, that the large tract covered by the Allen warrant and survey, comprehending the land now in dispute, and designated in the survey as lot No. 10, was first assessed for taxes in Luzerne county in the year 1796, and again in the years 1799, 1801, 1802, 1803, and 1804. The whole tract remained vacant until the autumn of 1799, when an individual named Tarbox intruded on lot No. 10, cleared a small portion of it, and in 1800, and the following year, sowed about seven acres of grain. He, however, abandoned the possession in the winter of the latter year, after selling the grain in the ground to one Torrey, who reaped it the next year. From this time, the land was abandoned until about the year 1810, when one Graytracks took possession of the clearing, and subjected it to a course of culture. In the mean time, it had, as we have seen, been sold for the payment of the taxes assessed upon the whole track for the years already mentioned, as appears by the sheriff's deed. It is certain, that in 1796, and when the tax was assessed for the year 1799, the land presented an unbroken forest, uninhabited by man. This, of itself, was sufficient to justify its subsequent sale for non-payment of taxes, at a time when no person was in the actual occupancy of it. But in addition to this, there is evidence, which was fairly submitted to the jury, that after the year 1802, it was totally abandoned, and suffered to relapse into its original condition of wildness, uncultivated and uncared for, until re-occupied by one wholly unconnected with the original possession, in the year 1810. If this were so, the taxes assessed upon it in the intermediate time, as an unseated tract, were properly laid; and the non-payment of these fully warranted its sale by the public authorities, in compensation of the delinquency of its owners. On the trial, however, several bills of exceptions were sealed at the request of the defendant, to the evidence introduced by the plaintiff, for the purpose of establishing some of the facts to which I have adverted. These exceptions may, not inconveniently, be now considered. The first, second, third, and fourth relate to certain official books and papers kept in, and belonging to the office of the commissioners of Luzerne county, duly proved by official persons connected with the office and its records. Certainly, no objection could be raised against them on the score of irrelevancy; for they went to prove the...
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