Reilly v. Mountain Coal Co.

• Decision Date: 05 January 1903
• Docket Number: 21
• Citation: 54 A. 29,204 Pa. 270
• Parties: Reilly, Appellant, v. Mountain Coal Company
• Court: Pennsylvania Supreme Court

54 A. 29

204 Pa. 270

Reilly, Appellant, v. Mountain Coal Company

No. 21

Supreme Court of Pennsylvania

January 5, 1903

Argued October 15, 1902

Appeal, No. 21, Oct. T., 1902, by plaintiff, from judgment of C.P. Cambria Co., March T., 1899, No. 286, on verdict for defendant in case of John Reilly v. Mountain Coal Company. Reversed.

Ejectment for lands in Summerhill township. Before BARKER, P.J.

The facts are stated in the opinion of the Supreme Court.

The court refused to admit in evidence a deed in the name of the commonwealth under its great seal to Dorothea Brien, recorded in 1844, in Cambria county, but not acknowledged.

Plaintiff presented these points:

1. As against the alleged title of the defendant which had its inception by warrant dated March 19, 1889, on which patent was issued on August 18, 1899, the sale to Brien and Coleman of March 11, 1808; the power of attorney from Dorothea Brien to Abraham Morrison dated August 8, 1845, and recorded June 26, 1847; the deed of Dorothea Brien by her attorney in fact Abraham Morrison, to Henry McKenzie, dated December 31, 1849 and recorded May 24, 1889, with the recital therein of conveyance by "secretary of commonwealth of Pennsylvania, by deed dated January 4, 1843, to Dorothea Brien in fee;" the last will and testament of Henry McKenzie, dated February 23, 1850; the petition of the executor of the last will and testament of Henry McKenzie deceased, to sell the land claimed by the plaintiff in this action, with the order of the court under date of September 13, 1853; the sale of the land as confirmed by the court on December 5, 1853; the deed from Sylvester McKenzie, executor, to Bernard McColgan, dated December 22, 1853, and recorded November 20, 1854, with the recitals therein; the deed of Bernard McColgan to John Reilly dated March 21, 1871, and recorded April 22, 1889, for the land claimed in this case by the plaintiff, with a recital therein as follows: "Being the same tract of land, inter alia, which the secretary of the commonwealth of Pennsylvania, by deed dated January 4, 1843, and recorded in recorder's office of Cambria county, in record book, vol. 7, page 357, etc., conveyed to Dorothea Brien; and Abraham Morrison, attorney in fact of Dorothea Brien, by deed dated December 3, 1849, conveyed to Henry McKenzie; and Sylvester McKenzie, executor of the last will and testament of Henry McKenzie, by deed dated December 22, 1853, and recorded in recorder's office of Cambria county in record book, vol. 13, page 201, sold and conveyed, by virtue of an order of the orphans' court of Cambria county, to Bernard McColgan, party hereto;" the deed of F. H. Barker, treasurer of Cambria county, to S.W. Davis, dated June 8, 1896, recorded July 9, 1898, "All that certain tract of land held in the name of John Reilly, in Summerhill township, Cambria county, containing four hundred and thirty-nine acres;" deed of assignment of S.W. Davis and Sarah J. Davis, his wife, to John Reilly, dated July 8, 1898, and recorded July 9, 1898; assessment of the land claimed by the plaintiff to John Reilly from the year 1880 continuously to this date; the jury may find a good title vested in John Reilly, and if the jury find in addition thereto from the evidence that the location contended for by the plaintiff under the warrant and survey of John Nicholson is the true location of the land claimed by the plaintiff, the jury may find a verdict in favor of the plaintiff. Not answered. [3]

4. If the jury find that the Mitchell warrant under the date of March 19, 1889, and the return of survey made thereunder were located upon the lands surveyed under the John Nicholson warrant of August 8, 1793, which survey was accepted by the commonwealth September 15, 1847, and if the jury further find that the plaintiff is the successor in title to John Nicholson under his said warrant, their verdict should be for the plaintiff for the land described in the writ. Not answered. [4]

Defendant presented these points:

6. The record of the return of survey of John Nicholson tract of August 8, 1793, shows that George Woods, and he alone, made the survey in 1793. The tract must be located by evidence of marks of such survey in 1793, and failing in such evidence, then it must be located by adjoiners. Answer: Affirmed. [5]

8. The jury must not consider the evidence of J. Murray Africa as to the Cadwallader Evans tract being a John Musser tract, as his evidence is based upon his recollection of the contents of papers which were not produced, and is therefore incompetent. Answer: Affirmed. [6]

9. Where, as in this case, it appears from the return of survey that the surveyor in locating the tract went upon the ground and made the survey, calls for streams and other natural monuments are of great weight in determining the location of the tract. Answer: Affirmed. [7]

The court charged in part as follows:

[You will have nothing to do with anything in this case except to determine this one question, if you can, where did George Woods survey this piece of land in 1793? In other words, did he survey the land where the plaintiff in this case claims he did, that is, as shown on his map by the red lines? If he did not survey and locate that piece of land where the plaintiff claims he did, as shown on that map by the red lines, then, of course, the plaintiff has nothing to do with the land covered by that survey and claimed by the defendant, and cannot recover. The only questions of law in the case are those which we shall give you to guide you in your deliberations in determining that question, as to where George Woods did locate this tract of land.]

[It very frequently occurs, as in the past -- not so much now, since land titles have been better settled -- that these controversies arise between two persons, each of whom owns warrants, surveys and patents out of the commonwealth, and it is claimed one interferes with the other, that one is laid partially on top of the other, and certain rules have been laid down, and, mainly, the rules that have been laid down are in relation to cases of that kind. There are two warrants, surveys and patents here that interfere, but these rules do not apply in this case, because it is a question here of the actual location on the ground of the John Nicholson warrant as claimed by the plaintiff.]

[The presumption is that Mageehan merely returned to the land office a copy of the survey, out of the book, made by Woods, but he states in his return that it was examined by him and found correct. Now, of course, if it were proven as an absolute fact in this case, that Mageehan made a survey on the ground and it differed from that made by Woods, the Woods survey would prevail. He would have no authority to change the survey made by Woods. He would only have authority to report to the land office what survey was made by Woods.]

[But the land office has accepted the return of the survey made by Woods, in the handwriting of Mageehan, in which he states that he examined it and found it correct, and we feel that if there was absolute proof here that Mageehan had marked a line on the ground, on the date when he says he examined this, and marked it as shown on the draft introduced in evidence, that while it is not evidence in itself alone, and could not be, if there was nothing else in the case, of the true location of this, yet, if it throws any light on the location made by Woods, originally, then it is evidence in this case, and not otherwise.]

[Now, independent of any bearing that this survey, alleged to have been made by Mageehan, has upon the question as to whether or not Woods made such a survey, it is valueless as evidence, for the reason if he was not going over the ground that George Woods went over, then his survey is valueless. He had no authority to make other lines, he had no authority to make new lines. The plaintiff's title must rest upon the survey made by George Woods.]

[We simply instruct you that your duty is, from the evidence in the case, to follow the footsteps, if you can, of George Woods in 1793, and see whether or not he located this land as claimed by the plaintiff. If you find, from the weight of the evidence, that he did, under our instructions as to the way in which you shall apply that evidence, then render a verdict for the plaintiff. If you find that he did not locate it there, and it matters not where else he may have located it, then your verdict would be for the defendant.]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1,2) rulings on evidence; (3-13) above instructions, quoting them.

The judgment is reversed and a v.f.d.n. awarded.

Geo. A. Jenks, with him W. Horace Rose and Chas. Corbet, for appellant. -- The acts which provide for an acknowledgment of deeds, in order to qualify them for recording, do not apply to patents granted by a sovereign to a citizen. The seal of the state is evidence of the genuineness of the patent. It is equivalent to the act and deed of all of the citizens of the state, each of whom is party to the conveyance, with the same effect as though every citizen of the commonwealth had subscribed his hand and seal thereto.

The presumption as against a junior survey after twenty-one years becomes absolute in favor of the first purchaser: Glass v. Gilbert, 58 Pa. 266, 292; Ormsby v. Ihmsen, 34 Pa. 462; Lambourn v. Hartswick, 13 S. & R. 113.

Under the early custom of the land office, warrants were issued in the names of persons who were not the real owners, and, in some cases, fictitious names. The payment of the purchase money vested the warrants in the person who paid for them Reynolds v. Dougherty, 3 S. & R. 325; Balliot v. Bauman, 5 W. & S. 150; Delaware & Hudson Canal Co. v. Dimock, 47 Pa....