Stump v. Findlay

• Decision Date: 31 October 1828
• Citation: 2 Rawle 168,19 Am.Dec. 632
• Parties: STUMP and others v. FINDLAY and others.
• Court: Pennsylvania Supreme Court

2 Rawle 168

19 Am.Dec. 632

STUMP and others v. FINDLAY and others.

Supreme Court of Pennsylvania.

October 31, 1828

IN ERROR.

Devise " to A. during his natural life, and, after his decease if he shall die leaving lawful issue, to his heirs, as tenants in common, and their respective heirs and assigns for ever; but, in case he shall die without leaving lawful issue then to B., the brother of A., to hold to him, his heirs and assigns for ever:" Held, that A. took an estate for life; that A's. issue, as tenants in common, and B took, respectively, contingent estates in remainder, but one of which remainders could ever become vested; and, that neither of these remainders could become vested, till the death of A.

In a common recovery, the tenant to the præ cipe must be tenant by a legal title. Where, therefore, a recovery was suffered, and the title of the tenant to the præ cipe rested only in articles of agreement Held, that the recovery was void.

A common recovery, whether it is valid or void, works a forfeiture of the particular estate. Where A. had an estate for life, and the issue of A., as tenants in common, had contingent, concurrent estates in remainder, and a recovery was suffered by A. of the whole estate: Held, that although the recovery was void, for want of a good tenant to the præ cipe, the estate of A. was forfeited by the recovery, and the contingent remainders of his issue were consequently destroyed.

ERROR to the Court of Common Pleas of Franklin county.

John Findlay, Samuel Findlay, John Palmer, and Mary, his wife, who was formerly Mary Findlay, the plaintiffs below, and defendants in error, brought an action of ejectment for one hundred and thirty-two acres and ninety-nine perches of land, against John Stump, John Myers, and their tenant, the defendants below, and plaintiffs in error. The jury found a verdict for the plaintiffs below.

The title of the plaintiffs below was as follows: In 1765, John Findlay, Sen. the father of the plaintiffs below, claimed five hundred acres of land, of which the premises in question are a part, under a warrant to John Kerr, for one hundred acres, on which warrant, a survey, including the greater part of the land thus claimed, appeared to have been made by Samuel Lyon, then an assistant to the deputy surveyor. Of this survey, a rough draft, bearing no date, nor reference to any authority or office title, had been found in the office of the surveyor, some time before the trial in the court below, but was subsequently lost.

In 1768, John Findlay, Sen. conveyed two hundred and eight acres of this tract to his son James, and in 1783 he devised the residue, including the premises, as follows:^[a1]" I give and bequeath to my son, John Findlay, (the father of the plaintiffs below,) all that plantation and tract of land whereon I now dwell, together with the appurtenances, to hold to him, the said John Findlay, during his natural life. And, after my son John's decease, if he shall die leaving lawful issue, I give and devise the same to his heirs, as tenants in common, and their respective heirs and assigns for ever. But, in case my said son John shall die without leaving lawful issue, I give and devise the same to my son, James Findlay, to hold to him, his heirs and assigns, for ever."

John Findlay, Sen. died in 1783, and John Findlay, the devisee above named, and father of the plaintiffs below, died in 1801.

The defendants below claimed under the following title. In 1788, James Findlay, the son of John Findlay, Sen. obtained a warrant for two hundred acres, in the name of his own son, John Findlay, the second, and in 1790 he had a survey of one hundred and thirty-two acres, and ninety-nine perches, the premises in question, made by Matthew Henderson; against the acceptance of which, John Findlay, the devisee, entered a Caveat, in 1791. In 1790, a resurvey was also made by Henderson, on the warrant to John Kerr, in 1749, of two hundred and fourteen acres, and some odd perches; of which tract the plaintiffs below were now in possession, and which, with the premises in question, made the tract of three hundred and forty-seven acres and nineteen perches, mentioned hereafter.

In 1793, John, the devisee, entered into articles of agreement with his brother James, and his nephew, John Findlay the second, in which he declared, that he claimed the land devised by the will of his father, for the purchase of the premises in question, and he afterwards received, in the same year, conveyances of the premises from both of them. In 1794, John, the devisee, conveyed eleven and a half acres of the premises to Myers, one of the defendants below, and plaintiffs in error.

In August, 1797, articles of agreement were entered into between John Findlay, the devisee, and George Hetich, and Samuel Riddle, for the conveyance of the remainder of the premises. In December, 1797, a common recovery, with double voucher, was suffered of the premises in Franklin county, in which Joseph Parks was demandant, Hetich and Riddle were tenants, John Findlay, the devisee, was first vouchee, and Yost Biddle second vouchee. In April, 1798, Parks conveyed the premises to John, the devisee, in trust, to convey the same to Hetich and Riddle, and on the same day a conveyance was accordingly made to them by the said devisee. In December, 1798, a patent was procured by Hetich and Riddle, covering the tract thus conveyed to them, and in March, 1799, Hetich and Riddle conveyed one hundred and twenty-one acres, the aforesaid remainder of the premises, to Stump, one of the defendants below, and plaintiffs in error.

On the trial, the plaintiffs below, after having given evidence that the draft of the survey made by Samuel Lyon had been found in the office of the surveyor, and had been subsequently lost, offered to give parol evidence of its contents, by Archibald Fleming, Esq. the deputy surveyor. The defendants objected, but the court admitted the evidence, and signed a bill of exceptions. The admission of this evidence was the first error assigned.

The court below, in their answers to some of the points proposed by the counsel, charged the jury as follows: " The plaintiffs' claim and title appear to be merely equitable; a settlement right only. The draft is not evidence of title in the plaintiffs to the land, in the possession of the defendants; nor is it a survey by the proper officer, on any warrant. It appears, at best, to be a mere private survey, and circumscription of boundary; which, if known to the neighbourhood, and claimed by right of settlement, and such settlement were duly continued, would, at least after the act of assembly, allowing four hundred acres to be surveyed on warrants, and provided the boundaries were reasonable, give an equitable title to the three hundred and forty-seven acres, and nineteen perches." This was the second error assigned.

The court also charged the jury: " There is nothing in this case which calls upon the jury to presume any thing for, or any thing against, the common recovery.

The regularity of the common recovery, and of the proceedings necessary to constitute it, does not appear to be called in question by the plaintiffs.

The estate of John Findlay, the devisee, under his father's will, was not an estate tail, but an estate for life only; and the estate in remainder of the plaintiffs is not barred by the common recovery." This was the third error assigned.

The case was twice argued before this court; the second argument being confined to the third error.

G. Chambers, and J. Chambers, for the plaintiffs in error.

1. The admission of the witness, to prove the contents of the draft, is not warranted by any decision of the court. But the draft itself, if produced, would not have been evidence. It did not appear to have been the official act of any deputy surveyor, nor to represent any survey made on the ground. It had no date; it recited no warrant, or other authority, under which it was made. It furnished no evidence by whom it was made, nor that any surveying fees had been paid. Miller v. Carothers, 6 Serg. & Rawle, 215.

2. The draft, if evidence of any thing, was evidence of a survey. John Findlay, Sen. being the owner of Kerr's warrant for one hundred acres, his title was by warrant, and not by settlement. Bonnet's Lessee v. Devebaugh, 3 Binn. 191. The court erred also in charging, that more than three hundred acres could be taken under a settlement right. The custom was, to take three hundred acres, and no more. Davis's Lessee v. Keefer, 4 Binn. 161. The owner of an improvement right might take three hundred acres, or as much less as he pleased. Gordon v. Moore's Lessee, 5 Binn. 136. Ellis v. Different Agents, 2 Smith, 167. A settler is entitled to three hundred acres only, and cannot claim ten per cent. additional, if there is any interfering right. By the act of the 1st of April, 1784, sect. 4, four hundred acres might be taken on a warrant. Act 21 st December, 1784. Act 3 d April, 1792, sect. 3.

3. The court erred, in charging, that the estate in remainder of John, the devisee's children, was not barred by the common recovery. The case of Findlay v. Riddle, 3 Binn. 139, we conceive, decides this point. If the remainder vested in the son of John Findlay, the devisee, who was born before the recovery, and that child had died during his father's life, the remainder of James Findlay would have been defeated, contrary to the devisor's intent. A fee cannot be limited on a fee, at common law. But there may be several contingent estates in fee, one of which may become vested by the occurrence of a particular event, and then all the others are destroyed. Fearne, 372, 373. Dunwoodie v. Reed, 3 Serg. & Rawle, 435. Abbott v. Jenkins, 10 Serg. & Rawle, 29...