Naglee v. Albright

• Decision Date: 16 February 1839
• Citation: 4 Whart. 291
• Parties: NAGLEE v. ALBRIGHT and Others.
• Court: Pennsylvania Supreme Court

4 Whart. 291

NAGLEE v. ALBRIGHT and Others.

Supreme Court of Pennsylvania.

February 16, 1839

IN ERROR.

1. The acknowledgment of a sheriff's deed in open Court, and the registering of it in the Prothonotary's Office, are equivalent to recording it in the office of the Recorder of Deeds, in respect to notice to a subsequent purchaser from the defendant in the execution.

2. It seems, that in the case of vacant lands or lots where there is no actual possession, such deed so registered has the same effect as a deed of bargain and sale duly recorded, and conveys not only the title, but the actual possession.

3. After a possession of forty years from the date of a sheriff's deed of a vacant lot, an entry by the sheriff's vendee, in pursuance of the deed, may be presumed.

4. Mere payment of the taxes accrued on a vacant lot, by a person having no title, cannot be considered as giving such person actual possession in contemplation of law, especially of that notorious adverse kind which is necessary to constitute an ouster of the party having the legal title.

THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of trespass quare clausum fregit, brought by William Albright, Samuel Albright by his committee William Albright Michael Albright, and William Albright the younger, against Henry Naglee.

The locus in quo was a lot of ground situate on the east side of Schuylkill Seventh street, between Walnut and Locust streets, in the city of Philadelphia, the title to which was in dispute between the plaintiffs and defendant.

Both parties claimed under one Archibald Carr, who owned three lots of ground including the lot in question. On the 16th of May, 1792, he mortgaged this lot to Leonard Sayre, and on the 1st of October, 1792, sold and conveyed the three lots to David Dewar, without notice of the mortgage, which was recorded by Sayre on the 9th of October, within the six months then allowed by law for recording of mortgages.

On the 28th of November, 1793, Dewar sold to one M'Curragh, who on the 2d of May, 1800, sold to one Baker, who on the 19th of September, 1806, conveyed to Naglee, the defendant.

To September term, 1795, of the Common Pleas, Sayre issued a writ of scire facias upon his mortgage, without notice to the terretenants. Judgment was obtained in due course of law, and an execution issued, by virtue of which the sheriff sold the lot in question to Michael Albright. A deed was accordingly executed by the sheriff to Michael Albright, on the 18th of February, 1796, which was duly acknowledged and entered in the prothonotary's office but not recorded in the office for recording deeds, & c Michael Albright died intestate, leaving the plaintiffs his heirs at law.

The lot remained open and unenclosed until the defendant put a fence upon and around it, which was the trespass complained of in this action.

On the trial before JONES, J. on the 13th of April, 1837, the plaintiffs gave their deeds in evidence, and proved their descent from Michael Albright. The defendant produced the conveyances above mentioned, and also produced the assessment books of Locust Ward--in which the lot was situate--by which it appeared, that from 1796 to 1836, there was no property in the ward assessed to any person of the name of Albright, and that certain lots, of which the premises were believed to be part, were assessed to Henry Naglee. The defendant also proved the payment of taxes by him for several years after 1808. The plaintiffs then examined a witness named Condy, who proved that as agent for Michael Albright, he had called upon the collector about the year 1820, to pay the taxes upon the lot, and learned from him that it had not been assessed. The witness also proved that about the years 1832 and 1835 Albright exercised some acts of ownership over the property.

The learned judge, after stating the titles of the parties as they appeared from the deeds given in evidence, charged the jury in substance as follows.

" The defendant objects that the plaintiffs' title is defective or insufficient for several reasons.

1. That the sheriff's deed not being recorded in the office for the recording of deeds is void as against subsequent purchasers. It was not necessary to record this deed (the sheriff's deed to Michael Albright) in the office for the recording of deeds in order to give notice. The record of the mortgage in that office and the scire facias upon the mortgage and the proceedings therein in the Court of Common Pleas, gave legal notice to purchasers of the state of the title. This objection is therefore without foundation.

2. The defendant further objects that no proceedings were had by the plaintiffs or by Michael Albright (under whom they claim) after the sheriff's deed to him, to get possession of the land, and therefore the defendant contends that the legal possession remained in those who held under the mortgagor. The sheriff sells upon an execution only the defendant's right in the property and the right of possession. If the defendant whose property is sold upon execution be in possession at the time of the sale, or if any one be in possession claiming under him by a title subsequent to the mortgage, the law has provided a summary method for getting possession. If a stranger be in the actual occupancy at the time of the sale, the purchaser must bring an ejectment to get the possesion from him. But if no person was in actual occupancy of the lot in question at the time of the sale under the mortgage, it was not necessary to have recourse to any legal proceedings, for no one having the actual occupancy who could be ejected or dispossessed, the purchaser would have a perfect right to enter upon the land and take the actual possession of it, after the execution and delivery of a deed to him by the sheriff. The purchaser could not for such an entry and possession be indicted as for a forcible entry or detainer, nor could he be dispossessed by an action of ejectment brought by the defendant or any claiming under him. Upon these several points therefore you will understand the law to be, that if no person was in the actual occupancy of the lot at the time of the sale under the mortgage to Michael Albright, it was not necessary to have recourse to any legal proceedings to get the actual possession; but Mr. Albright the purchaser had a right to enter immediately under his deed. Yet it was not necessary for him actually to enter in order to get such a possession. And if you should find that neither Michael Albright nor the plaintiffs took possession before the putting up of the fence by the defendant, the plaintiffs cannot maintain this action. These observations bring us to another question which has been raised, viz. whether the plaintiffs could enter after twenty-one years elapsed from the execution and delivery of the sheriff's deed to Michael Albright. Before answering this question, I will remark, with a view to another part of the case, that if neither the plaintiffs nor their ancestor did actually enter within twenty-one years, they could not have been ousted or dispossessed during that time. It is very obvious that a man cannot be deprived or dispossessed of that which he never had. Upon this supposition there could be no adverse possession of the defendant, originating in an ouster of the plaintiffs; and if you should be satisfied that Mr. Albright never entered during that time, the evidence relied on to prove an ouster cannot be made use of for that purpose.

But to come to the question raised, it depends upon or involves another, viz. whether anything short of an actual possession or occupancy under Dewar's title, can deprive the plaintiffs of this right to enter after twenty-one years from the execution of the sheriff's deed. It appears to me that nothing short of such an actual possession of the property, will defeat the plaintiff's right of entry. The statute of limitations is designed to protect the interests of persons actually on the land. For this purpose the act is beneficial. An actual possession of lands is evidence of seizin, and the receipts of the rents and profits of the lands is also evidence of seizin. But this applies only to improved lands. In case of unimproved, unoccupied lands the statute cannot operate upon any such principle. You will therefore proceed to inquire--

1. Whether Michael Albright or the plaintiffs ever did enter upon this lot. If you find they did not, the plaintiffs cannot recover in this action.

2. If you find that they did actually enter as owners of this lot under the sheriff's deed, before the defendant did the act complained of, then the plaintiffs had a possession which will enable them to maintain this action. Unless.

3. You find such entry was made twenty-one years before the trespass complained of. If you should find the fact to be so, you will proceed to inquire--

4. Whether the plaintiffs or their ancestor, after such an entry, were ousted or dispossessed by the defendant, and continued to be dispossessed or out of possession during twenty-one years. But before this question can arise, you must be satisfied that Michael Albright did enter twenty-one years before the fencing of the lot. There is no express evidence of such an entry; the only ground upon which you can find it, is presumption. Mr. M. Albright had the title; he had a right to enter. It is natural that a man owning property that is vacant, should enter upon it. Still the fact may be otherwise, and you are not bound to presume an entry from these facts, unless you are satisfied in conscience that such a conclusion is reasonable. If, however, you find that Mr. M. Albright did enter twenty-one years before the fencing of the lot,...