Farr v. Swan
| Decision Date | 10 March 1845 |
| Citation | 2 Pa. 245 |
| Parties | FARR <I>v.</I> SWAN |
| Court | Pennsylvania Supreme Court |
Lewis A. Scott and J. M. Scott, for plaintiff.—1. The map was a muniment of title, and there should have been evidence of what it was. Certainly every loose paper in the land-office is not per se evidence of title. It was but a mere extract; and there is the same presumption against that as against a copy. Dennis v. Barber, 6 Serg. & Rawle, 104. The act of 1823 does not help the case, and Griffith v. Tunkhouser, 1 Pet. C. C. R. 418, is on the very point. It is moreover essential it should appear to be by the proper officer. Pain v. Hartman, 2 Dall. 230.
2. The act of 1715 is the one under which this acknowledgment is made, and in Vickroy v. McKnight, 4 Binn. 204, it was held, proof by one witness was insufficient. And if improperly recorded, it is no evidence, or the books are better, 2 Watts, 75; Murphy v. Lloyd, 3 Whart. 538; Watson v. Craig, 10 Watts, 289; and no possession was shown here to come within Arnold v. Gorr, 1 Rawle, 223; 6 Binn. 435; as copies must always come from the proper custody, 8 Adol. & Ellis, 151. It will be observed from 1712 there is not a document mentioning this lot specifically.
3. Possession in 1804 could not affect our right. By a series of acts it will be seen the state has chosen to consider these titles, unless prosecuted before 1788, as derelict, and has assumed the lots, and by very strict enactments forbidden the acquisition of any title but in one way, and under that we are entitled. The acts are 1779, 1 Sm. 479, the divesting act; 1780, Mar. 25, 2 McK. 374; 1781, 1 Sm. 533, which limits claims to seven years, and directs they shall be sold. Nor had defendant a right to enter under this act, but he was bound to proceed against the attorney-general, act 1786, 2 Sm. 380; Mayor v. Clifford, 4 Yeates, 272, is an ejectment under this act, and it was for lots 42, 41, in this square; acts of 1791, 3 Dall. 55; 1797, 3 Sm. 300, which is the last extending the time of claim. The cause is not difficult to discover. If parties had not claimed for a century, was it probable they ever would? And it was essential for the public credit to dispose of all vacant lands.
Then come the acts for erecting the Penitentiary, under which we claim. 1803, 4 Sm. 87; 1807, Id. 402; 1821, 20th March. Under these, any one in possession, unless as there provided, must take the disadvantage of a plaintiff.
4. There was no such possession here as warranted presumption of a conveyance. The right was of the lowest kind, 2 Sm. 106, 107, 108, 138; 5 Sm. 411; and most liable to be abandoned, 3 Whart. 538. They passed as chattels, and were so considered, 4 Watts & Serg. 437; Serg. L. Laws, 286; 4 Yeates, 142. The question then is, whether there was not presumption of abandonment before 1804. The cases authorize this, for better titles on slighter grounds. Starr v. Bradford, 2 Penna., warrant and survey; Plumstead v. Raddebaugh, 1 Yeates, 502, there had been possession for thirty years. Hurst v. Durnell, 1 W. C. C. R. 263, warrant for liberty land unexecuted for many years. 6 Peters, 498; 4 Peters, 480; 7 Peters, 763; 11 Peters, 41; 1 How. 189. But length of time of possession cannot be presumed, 1 W. C. C. R. 80; and it is made here for the purpose of avoiding the act of 81, a statute of repose.
But at all events Pownall, and those claiming under him, could be entitled to no more than he originally had, and that was twenty feet; and there was clear error in leaving it as a question of fact to the jury, whether the whole of the lot now claimed had been assigned to him in his right as first purchaser.
Oakford, contrà.—1. An extract from an office paper may be read, De France v. Stricker, 4 Watts, 327. So part of an act of Assembly, Addle v. Sherwood, 3 Whart. 481. So extracts from land-office accounts, 1 Watts, 57.
2. We were prepared at the trial to show the original was lost, and this was an ancient copy accompanying possession, when it was clearly evidence. 1 Atk. 49; Bull. N. P. 254; Garurin v. Dennis, 4 Binn. 3; Duffy v. Brindley, 1 Rawle, 94, 95; James v. Ethry, 8 Watts & Serg. 192. We had shown possession as far as living witnesses could remember, and that authorizes presumption of an earlier possession, Chad v. Filset, 2 Brod. & Bing. 403; a usage was presumed under such circumstances. It is said in 10 Pick. forty years is the limit of legal memory. In Rogers v. Allen, 1 Camp. 309, 310, ancient licenses were read without proof of payment thereunder, on proof of similar modern licenses and payments under them for forty years. The rule is a reasonable one, as it would otherwise be impossible to establish the facts, 3 Watts, 165; Serg. L. Laws, 165; Hepburn v. Dundas, 5 Cranch, 263.
6. The counsel did not desire a more specific answer. Indeed, the great question was whether the evidence would justify presumption of our older possession, and the possession by us with an older title related to that. Mather v. Trinity, 3 Serg. & Rawle, 510, 517; Kingston v. Leslie, 10 Serg. & Rawle, 389.
Cadwalader, on the same side.—The act of 1781 does not apply. It allowed any person's property to be sold, compensation being directed for the payment of the public debt. The summary proceedings were confined to lots claimed by the proprietors in their individual rights. The plaintiffs themselves showed a clear title, under Kellenbeck, without any paper title or office right. It is sufficient if we show such an appropriation as would be good against the proprietaries, and this we have done by Holmes's ancient map, and the more modern one, agreeing that this square had been appropriated. A number on Holmes's map has been held sufficient in Mayor v. Clifford, 4 Yeates, 272; Commonwealth v. Alberger, 1 Whart. 469. Our case is exactly similar, except that a corporation claimed as trustee for the public. It has been supposed that Holmes's map was altered, after it was laid out on the ground. But, in fact, the present plan existed in 1683, and the Centre Squares were in the same position as at present. The map known as Holmes's was made in London, by one who evidently had not seen the ground. But the plan now used was made prior to Penn's arrival here. Letter to Turner, 12th April, 1681, Historical Soc. Coll. 1 vol. 202, 204.
The charter was in the previous month, eighteen months prior to the grant of the three lower counties. The surrender was received in New York, in June, 1 Hazz. Reg. 305; and in August the records at Upland show he was acting as governor. In July, the conditions and concessions were made which presuppose a settlement, and the instructions to the commissioners, 30th September, 1681, forbade grants until location, 2 Hist. Soc. Coll. 216, 217; this was thirteen months before Penn's arrival. In March, 1682, eight months before his arrival, Markham issued grants, which were forbidden unless the plot was then made. Mr. Cadwalader read from a book of warrants in the Recorder's office, warrants and surveys under Markham, p. 54, a lot on Walnut street, 1682. The allotment on Holmes's plan was not about the time of his letter to the Society of Free Traders, but in 1682, for that map and list of purchasers contain only the Front and High street lots, but this book contains a drawing of the inner lots on p. 1 made after Holmes's plan, dated 19th September, 1682, and the exemplification of the list from Harrisburg agrees with the numbering. This explains the remark in Proud, 262, 263, as to the advance of the city, 1 Hist. Soc. Coll. 413; 1 Watson's Annals, 49. The only change was between the paper plan and that located. Mr. Cadwalader read a survey for a lot on Eighth from Schuylkill and Broad street, laid down on the map, adjoining the Centre Square, dated 1684.
The evidence here shows that any one entitled to a front lot, according to Holmes's plan, took one on the Front street as laid down. The grouping was according to the concessions. Thus the two maps, one of the proposed, the other the actual plan, agree as to this square. This is sufficient to exclude subsequent office rights without possession. We have shown four out of the twenty-five actually were located in the present square. A survey was only necessary to ascertain the spot, but it gave no right. There is no dereliction where possession is taken before another title commences. 10 Serg. & Rawle, 389, 390; 7 Watts & Serg. 215, 217.
In the act of 1759, under which the Book of Warrants was compiled, the preamble recites many warrants and surveys were lost; act 1786, March 28. In 4 Yeates, 144, Shippen, C. J., said, the survey of the Liberty lands was lost. Many lots are held under the allotments merely. Twenty-one years' possession does not bar the remedy, but gives a right, 2 Salk. 421; Burr. 119; 2 J. & Walk. 156; 5 Serg. & Rawle, 240; 4 Whart. 275, 290.
Under the second error, two objections have been made; the one stated below is the only one noticeable here. In 8 Watts & Serg. 192, recitals in a deed accompanying possession were held evidence of pedigree. So in 5 T. R. 413, Clarkson v. Woodhouse, where the deeds were so ancient that no one could speak to possession under them, provided the modern possession had been consistent. The objection to the acknowledgment was not made below, but even then it is admissible as an ancient copy. Styles, 445; 4 Dow. 297, 334. It was ruled in Smyth v. Craig, at this term, that the party is strictly confined to the form of his exception.
A survey and warrant was not necessary for any appropriated lands; even in the case of the proprietaries it was a mere formality required to save the divesting act. The act giving compensation shows this, but the plaintiffs must go further, and show no presumption...
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