Kaul v. Lawrence
| Decision Date | 17 May 1873 |
| Parties | Kaul <I>et al. versus</I> Lawrence <I>et al.</I> |
| Court | Pennsylvania Supreme Court |
Before READ, C. J., AGNEW, SHARSWOOD and MERCUR, JJ. WILLIAMS, J., at Nisi Prius
Error to the court of Common Pleas of Elk county: No. 23, to January Term 1872.
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J. G. Hall, for plaintiffs in error.—If there was no delivery of the deed from David Crow, treasurer, to N. Richmond, he acquired no title to the land: Donnel v. Bellas, 10 Barr 341; Donnel v. Bellas, 1 Jones 341; Gault's Appeal, 9 Casey 99; Hoffman v. Bell, 11 P. F. Smith 444. To supply its place by secondary evidence of its contents, it was necessary to prove the deed had been delivered: McCredy v. The Schuylkill Nav. Co., 3 Whart. 424; Jack v. Woods, 5 Casey 375. A recital in a deed is not evidence against a stranger: Morris v. Vanderen, 1 Dallas 65; Dean v. Connelly, 6 Barr 239; Meals v. Brandon, 4 Harris 225. At the date of the amendment, the Statute of Limitations had vested some of the defendants with a complete defence as against Tyler. Whenever the rights of a party are liable to be defeated by having joined too few or too many plaintiffs or defendants, these amendments may be made. The amendment was not necessary to the recovery of Lawrence and Cassatt. They recover neither more nor less than if Tyler had not been joined.
An amendment will not be allowed which introduces a new cause of action: Gardner v. Post, 7 Wright 19. Especially one which introduces a cause of action barred by the Statute of Limitations: Wright v. Harts, 8 Wright 454; Stout v. Stout's Administrator, Id. 457.
Where a loss must fall upon one of two innocent persons, it shall be borne by him whose act occasioned it: Robinson v. Justice, 2 Penna. R. 19; Maple v. Kussart, 3 P. F. Smith 352; Millingar v. Sorg, 5 Id. 225. Where one encourages another to settle upon land, improve it, &c., he will not be permitted to take it, though he has an older and better title to it: McKelvey v. Truby, 4 W. & S. 323. Where an act is done or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what would otherwise be mere matter of evidence: Stephens v. Baird, 9 Cowen 274; Derry v. Field, 5 Metc. 381; Congregation v. Williams, 9 Wend. 147; Com'th v. Moltz, 10 Barr 530; Ludlam's Estate, 1 Harris 192; Patterson v. Lytle, 1 Jones 53; Beaupland v. McKeen, 4 Casey 131. The only one whom the law protects against a trust or equity existing against the grantor is an innocent purchaser for a valuable consideration without notice. And he must show that he has paid the purchase-money: Bellas v. McCarty, 10 Watts 29; Rogers v. Hall, 4 Id. 362; Lewis v. Bradford, 10 Id. 82; Union Canal v. Young, 1 Whart. 431; Bolton v. Johns, 5 Barr 145. A purchaser is liable not only for all that he actually discovers, but for all that, with due diligence, he might have discovered: Jacques v. Weeks, 7 Watts 272; Hood v. Fahnestock, 1 Barr 474; Kerr v. Day, 2 Harris 112; Wright v. Wood, 11 Id. 121.
H. Souther and R. Brown, for defendants in error.—As to the admission of the record of the acknowledgment of the deed of Crow, treasurer: cited, Reinboth v. Zerbe Run Improvement Co., 5 Casey 139. The case is not varied from Lawrence v. Luhr, 15 P. F. Smith 236.
After having given evidence of a treasurer's sale and laid the usual ground by proof of a diligent and fruitless search for the treasurer's deed, the plaintiffs offered the record in the prothonotary's docket, of the acknowledgment of the deed, to prove its existence and contents. To this the defendants excepted, but we think without sufficient reason. This is the usual and proper mode of proving the existence of the deed, and identity of the land sold and conveyed by the treasurer. The case has been argued in this court, on the question of the delivery of the deed, but this was a fact to be submitted to the jury. The defendants made no point on the delivery. Doubtless the court would have submitted this question with proper instructions, had a request been made. There was evidence of a strongly presumptive kind to go to the jury. The sale was made and acknowledgment of the deed entered of record in 1842, a period of thirty years before the trial. A claim of title has since been made under the sale, and sales and conveyances made accordingly. These facts, together with the Act of 13th March 1817, requiring the purchasers at treasurer's sale, so soon as the property is struck down, to pay the purchase-money, or so much thereof as shall be necessary to pay the taxes and costs, and also one dollar, the fee of the prothonotary for entering the acknowledgment of the deed, in connection with the fact that the acknowledgment was so entered, were ample evidence from which the jury might have inferred a delivery of the deed. We discover no error in this bill of exception. Nor do we think the court erred in permitting the name of Alfred L. Tyler to be added as a plaintiff, and part owner of the land. The plaintiffs brought their ejectment for the whole tract of 500 acres, as an entirety. They did not claim an undivided interest. On discovering that the title to one undivided twentieth was in Tyler, the motion to amend was made on the ground of an omission of his name. The legislature has gone far to prevent the loss of a trial and delay, by allowing amendments, even to the form of action, and the courts have seconded the effort to reach the merits of the cases and prevent a failure of justice through technicalities: Trego v. Lewis, 8 P. F. Smith 46; Heidelberg School District v. Hunt, 12 P. F. Smith 307; Election Cases, 15 P. F. Smith 35; Leonard and Wife v. Parker et al., 22 P. F. Smith 236. In doing this, it is our duty, however, to see that amendments are not made in a manner to deprive the opposite party of any valuable right. As remarked in Trego v. Lewis, supra, the court will not permit a party to shift his ground or enlarge its surface, by introducing an entirely new and different cause of action, especially when, by reason of the Statute of Limitations, or an award of arbitrators, or from other good reason, it would work an injury to the...
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