Sailor v. Hertzog

• Decision Date: 16 February 1839
• Citation: 4 Whart. 259
• Parties: SAILOR v. HERTZOG and Others.
• Court: Pennsylvania Supreme Court

4 Whart. 259

SAILOR v. HERTZOG and Others.

Supreme Court of Pennsylvania.

February 16, 1839

1. Where A. conveyed a messuage and lot of ground to B., on the 7th of June, 1788, and on the 5th of July, 1788, B. conveyed to C. by deed, which was recorded on the 27th of May, 1789 and on the 19th of January, 1789, B. reconveyed the same premises to A. by deed, which was recorded on the 24th of November, 1789, it was held, that under the recording acts the deed to C. was void as against A. and those claiming under him.

2. The law presumes that a purchaser of real estate will not trust merely to the title papers and records, but will inquire of the person in possession whether he claims title to the land If the possession is distinct and unequivocal, it is sufficient to put the purchaser on inquiry, and amounts to constructive notice.

3. Where an assignment under the insolvent law was made on the 24th of June, 1817, and the assignor brought an action of ejectment to December term 1831, which was tried on the 11th of December, 1836, it was held, that the jury might presume that the debts of the plaintiff had been paid.

4. To prevent the running of the statute of limitations, a parol acknowledgment of the adverse title by the person in possession, must be such as to show that he intends to hold the possession no longer adversely, but in future under the party making the claim of right to the land against him, and such as to induce the latter to believe that he will so hold it. Declarations made with a view to a compromise or arrangement of the dispute, are not sufficient.

THIS was an action of ejectment brought by Henry Sailor against Peter Hertzog, George S. Geyer and Edward Ducray, to recover possession of a messuage and lot of ground situate on the east side of Sterling alley, in the city of Philadelphia containing in front thirty-four feet six inches, and in depth forty-seven feet.

On the trial before Mr. Justice ROGERS, at a Court of Nisi Prius held in Philadelphia, on the 11th of December, 1836, it appeared that the plaintiff claimed title under one William Henderson, who, it was admitted, was at one time the owner of the property; and to maintain the issue on his part the plaintiff gave in evidence an exemplification of a deed from William Henderson and wife to George Weiss, dated the 7th of June, 1788, acknowledged on the 10th, and recorded on the 11th of the same month, for the premises in question, for the consideration of £ 500; an exemplification of a deed from George Weiss to Jacob Sailor, dated the 5th of July 1788, acknowledged on the 12th of January, 1789, and recorded on the 27th of May following, for the premises, for the consideration of £ 500, and a deed from Jacob Sailor with Elizabeth his wife to Henry Sailor, dated the 12th of August, 1817, acknowledged and recorded on the same day whereby the grantor in consideration of ten dollars, conveyed all his real estate to the grantee, his heirs and assigns, in trust for himself and his wife, for their joint lives, and the life of the survivor, with remainder to his children in fee.

Parol evidence was then given on the part of the plaintiff, in substance as follows.

Catharine Craigen, a sister of Jacob Sailor, testified that her husband received rent for the property, and remitted it to Jacob Sailor, who then lived in the western country. It was two or three years before 1792, that her husband began to collect the rent, and it was in 1797 that he last received it. About 1798 they found strangers in possession. In 1815, Jacob Sailor gave a power of attorney to Isaac Young, her son-in-law to look after the property, and in the course of that year she went with her to the residence of a Mr. Ley, who was in possession of the premises, and who acknowledged the title of Sailor, and offered to buy his right.

Isaac Young testified, that in 1815 Jacob Sailor gave him a power of attorney, in pursuance of which he called on Daniel Ley, produced the power, and a copy (which he had obtained from the recorder's office,) of the deed of Weiss to Sailor. Ley admitted the validity of Sailor's title, said that he had not paid the whole of the purchase-money to Peterman, from whom he purchased, and was willing to compromise. He requested the witness to send Sailor to him. In the month of December, 1815, the parties met at a tavern, when Ley offered Sailor a certain sum for the property, which Sailor declined.

Henry Kalback testified, that about twenty years previously, he called at the premises with Sailor, who produced his deeds to Ley, and said the property belonged to him. Ley said that he had bought the property of another. About two years afterwards, they called on Ley again, who admitted that Sailor's title was the best, and offered him a certain sum for a conveyance. Sailor asked a higher price. Several other interviews took place, in which Ley admitted the opposite title, and offered money.

The plaintiff here closed his case, and the defendants gave in evidence the following deeds and other documents.

1st. The original of the deed of Henderson to Weiss, of which the plaintiff gave in evidence the official copy.

2nd. 19th January, 1789. George Weiss and wife to William Henderson, for a messuage and lot of ground, thirty-four and a half feet by forty-seven feet--the consideration being a reassignment of certain bonds, and five shillings in money. This deed was recorded on the 24th of November, 1789.

3rd. 2nd February, 1789. William Henderson and wife to Jacob Ettwein, for a messuage and lot of ground fifty-eight and a half feet by forty-seven feet: recorded on the 24th of November, 1789.

4th. 16th February, 1789. Jacob Ettwein and wife to John Peters, for the same premises, recorded 14th December, 1789.

5th. 28th November, 1791. Will of John Peters, whereby he empowered his executors to sell his real estate.

6th. 15th April, 1800. The executors of John Peters to Joseph Peters, for the same premises. This deed was acknowledged on the 5th of May, 1804, and recorded on the 18th of October, 1804.

7th. 29th November, 1809. Joseph Peters to Daniel Ley, for the same premises: recorded 18th April, 1816.

8th. 3rd February, 1818. Daniel Ley to Thomas Reeves and others, being a general assignment of his property for the benefit of creditors.

9th. 26th June, 1818. Thomas Reeves and others to Peter Hertzog and Tobias Beehler, for the premises: recorded 22d April, 1819.

10th. 28th May, 1822. Tobias Beehler and wife to Peter Hertzog, for his moiety of the premises.

11th. 1st August, 1827. Peter Hertzog to George S. Geyer, for the premises.

12th. 29th November, 1809. Mortgage by Daniel Ley to Joseph Peters of the premises to secure payment of $1688 88: satisfaction entered 21st January, 1825.

13th. 18th April, 1816. Mortgage Daniel Ley to Thomas S. Field and John Snyder, guardians, to secure payment of $1600. Satisfaction entered on the 2nd of July, 1818.

The defendants then went into parol evidence.

John Patterson testified, that Ley & Hupfeldt occupied the premises as sugar refiners in 1802 and 3, and that he purchased occasionally of them from that time to 1817, when the witness left the city, and that on his return in 1822 he found Peter Hertzog in possession.

Conrad Wile testified that he had known the property fifty years. The first persons he knew to be in possession were the Peters' family in 1793. After that a man named Stammers occupied it and continued there until 1798, when the witness removed from the neighbourhood. This witness produced the assessment books of the city of Philadelphia, from which it appeared, that from the years 1791 to 1797, inclusive, the property was assessed in the name of Jacob Peters; from 1798 to 1801, inclusive, in the name of George Peters's estate; in 1802, 3 and 4, in the name of Daniel Ley, for George Peters's estate; and from 1805 to 1811, in the names of Ley & Hupfeldt.

Lewis Eppelsheimer testified, that he knew one Jacob Sailor, and first knew him about 1806 or 7, and supposed him to be about the same age with himself, the witness then being past seventy. That this Sailor told him that he took the benefit of the insolvent law about 1808.

John Greiner testified, that he had known the property more than fifty years. The first person he recollected in possession was John Moore. Then John Peters. Jacob Peters his son succeeded him. Then Daniel Ley. Jacob Peters was in possession in 1793, and died in the fever of that year. After his death the witness thought that the building was shut up for some time. The boys pelted it with stones as a haunted house.

Edward Penington testified, that Daniel Ley went into the sugar house in Sterling alley, about 1800 or 1801, and was in business there seven, eight, or nine years.

John Maybin testified, that the Peters family were in possession of the property in the year 1793, and it remained in their possession until it was sold by the executors of John Peters at public sale. The witness was one of the executors, and never heard of Sailor, or of his claim until recently.

The defendants also gave in evidence the depositions of Isaac Young and Catharine Craigen, taken on a trial before arbitrators, for the purpose of contradicting their testimony on this trial; and also produced the petition of Jacob Sailor for the benefit of the insolvent laws in 1807.

Evidence was also given with the view of discrediting the testimony of Henry Kalback.

Frederick Beates, a scrivener, testified that he drew the deed from the executors of John Peters to Joseph Peters, and that from Joseph Peters to Daniel Ley; that he had the chain of title down to Joseph Peters. He was not in the practice of searching for conveyances where there was a chain of title but searched for mortgages and...