Goundie v. Northampton Water Co.
| Decision Date | 08 January 1847 |
| Citation | 7 Pa. 233 |
| Parties | GOUNDIE <I>v.</I> NORTHAMPTON WATER COMPANY. |
| Court | Pennsylvania Supreme Court |
J. M. Porter, for plaintiff in error.—The deed of partition executed by William Tilghman re-vested the title in his wife and her heirs, which it is the policy of the law to do, and the parties claiming under him are estopped by his admissions. The effect of the partition is to assign each party their separate estate: Feather v. Strohecker, 3 Penna. Rep. 505. The acts of Assembly obtained by him show his own view of the matter.
The conveyance and reconveyance had no effect upon her title; the act authorizing conveyances by femes covert is confined to those for a valuable consideration; this is declared in the preamble of the act of 1826. Neither of these corporations could take land, unless specially authorized by their charter: Wolf v. Goddard, 9 Watts, 544. The drafts were but extracts, and no authority to make them was shown: Wilson v. Stoner, 9 Serg. & Rawle, 39; Biddle v. Shippen, 1 Dall. 19. The record was evidence, since the plea of liberum tenementum is not necessary to admit a defence on the title, and they attempted to justify on that: Kerr v. Chess, 7 Watts, 371; Foster v. McDivit, 9 Watts, 349.
Miller being in possession, and making improvements, was in as good a position as if he had given notice by recording; Jaques v. Weeks, 7 Watts, 276; Pierce v. Turner, 5 Cranch, 154; Green v. Drinker, 7 Watts & Serg. 442; 3 Yeates, 359; 2 Ib. 259; 6 Binn. 119. When this case was here before, 5 Watts & Serg. 49, this point was not made. They were bound to know of the sheriff's sale, and give notice: Boggs v. Varner, 6 Watts & Serg. 472.
The court erred on the question of the capacity of the corporations; they were bound to show the purchase was within the license of the charters.
King, contrà.—The partition was not of the lands held by Tilghman under the conveyance, but of those held by descent. But what is the effect and design of a partition; not a conveyance, but separation merely. It merely determines the boundaries to the estates. The question as to the corporations has been determined in Leazure v. Hillegas, 7 Serg. & Rawle, 313; and that as to the drafts as late as Farr v. Swan, 2 Barr, 245. They were not received as evidence of title, but of locality. To conclude the corporation by the action against their agents, there must be proof the acts were done by authority: Hurst v. McNeil, 1 W. C. C. R. 75.
Jan. 8. COULTER, J.
There is nothing in the first bill of exceptions to evidence. The deeds therein mentioned were properly admitted. The objection made by the defendant, that they were not relative or pertinent to the issue, is not sustained in point of fact; because they are material in making out the chain of title, by which the claim of the plaintiff below is sustained. The argument of the counsel for the plaintiff in error here, was as to the legal effect of the deed when connected with other facts. But whatever that might be was a matter of law, subject to instructions from the court when the whole case was submitted to the jury, and afforded no ground whatever for their exclusion as evidence. In McDill v. McDill, 1 Dall. 63, it was ruled, that any deed, when duly proved, might be given in evidence. But in subsequent cases — Faulkner v. Eddy, 1 Binn. 190, and Peters v. Condron, 2 Serg. & Rawle, 80 — Chief Justice Tilghman said, that decision carried the law too far. It is now settled, that to entitle a deed to be received in evidence, the grantor must have some interest, either in law or equity: 3 Watts, 95. But any evidence of title, however small, is sufficient: Zeigler v. Hautz, 8 Watts, 380. The grantors had some interest, undoubtedly: even the plaintiff in error admits it.
The second bill of exception is of the same character. The grantor in the deed therein specified had an interest in the land in dispute, and the plaintiff below claimed under that deed.
The third bill of exceptions is also in the same category, precisely. The deed therein mentioned was part of the chain of title under which the plaintiff below claimed the land in dispute, and the legal effect of that deed was the subject of instruction from the court to the jury.
The certified copy of an old connected draft of adjoining surveys, found in the land-office by Jacob Sallade, surveyor-general, being admitted in evidence, and also a certified copy of a survey of a tract of land, in the name of Joseph James, certified from the land-office, furnish the fourth bill of exceptions. These copies of old connected drafts of the adjoining surveys found in the land-office, although they could not be operative as distinctive evidence of title, or any evidence of title, might be extremely useful in fixing boundaries, and as illustrative of old lines; and we perceive nothing improper in their admission under the circumstances of the case. It is true that a survey cannot be given in evidence, without showing an authority to make it, or that it had existed and has been lost; but that is when it is offered as part of the process of acquiring title. Nothing is more common, however, than to receive the drafts of a surveyor in actions of ejectment, when the controversy is about boundaries, although he was employed by the party. And the courts appoint artists to survey the disputed part, and make drafts of the contiguous and adjoining surveys, when the dispute is in relation to boundaries. These drafts are not evidence of title, but they are evidence of locality, and, connected with other evidence, go to the jury for their value. A connected draft from the surveyor-general's office is evidence not to make title, but to show whether there be any, and what, interferences: Robeson v. Gibbons 2 Rawle, 45. Certified copies of papers in the land-office are admissible: Vickroy v. Skelley, 14 Serg. & Rawle, 372.
The fifth bill of exceptions is as to evidence rejected, which...
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