# Record and brief — Jane Herron and Charles D. Herron, her Husband, in Right of Said Jane, Elizabeth B. Jackson and John A. Jackson, her Husband, in Right of Said Eilizabeth B.; Charles J. Tower and R. M. Cummings, Plaintiffs in Error, vs. Philip Dater and Elizabeth L. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1885_142%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1885 ## Text REME COURT-OF THE UNITED STAT ¢ OCTOBER TERM, 1885. | 142 RON AND CHARLES D. HERRON, HER H ELIZA : a. JACKEON, HER HUSBAND, IN RIGHT OF 8 SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1885. No. 399. JANE HERRON AND CHARLES D. HERRON, HER HUSBAND, IN RIGHT OF SAID JANE; ELIZABETH B. JACKSON AND JOHN A. JACKSON, HER HUSBAND, IN RIGHT OF SAID. EILIZABETH B.; CHARLES J. TOWER AND R. M. CUM- MINGS, PLAINTIFFS IN ERROR, VS. PHILIP DATER AND ELIZABETH L. FELLOWS. IN EFRROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. Original Print. COR inn enmeme ociemras qximnen oten a ee Appearance docket entry ....— ...-. Precipe and description ...... ...-.. . i iinsinisiaiesiineian polanien « Marshal's return pigs Sion sheila ee Appearance and plea ..... .....--. .--..-. Order amending description ................ RN HE COIS ok wrccene sine cr rmne sos saab titans Exceptions to charge of court .. ....-. i! et ee . AB : + i pte Fh ee: . Pc aby Oe ee hy} 45) . a 4 - Bs eee ' tte CC oe a Sn head sn reece en ttl, eT tt te 18 JANE HERRON ET AL. VS. PHILIP DATER ET AL. county, in the State of Georgia; eleven thousand five hundred & sixty-four acres in Orangeburg district, South Carolina, and one thousand acres in Moore county, North Carolina; as also my claim on the American Government for five hundred thousand acres, being the moiety of one million acres situate on the Mobile river, in the State of Georgia, commonly called the Yazoo claim, & which is the only property I own purchased from Jo. Barrett, of Boston, all the other properties having been purchased 5D by me and paid for, except —; and, further, I bequeath to my said wife and daughters my small estate—p’r simple house & garden, 4 acres & right of commonage—in the county of Surrey, England, about 22 miles from London, which I purchased at a public sale — Garrawary’s coffee-house in 1800, & paid for. The deeds are in the hands of Mr. Smith, the auctioneer, to whom I paid the purchase-money & who advised —. [I left him permission to sell, & thereby avoid extra transfers & expense, as I was going to America; as also all my properties and claims in Ireland, England, & the East Indies (the last means my demand of £1,399 10s. 4-. for interest due by M. Gilaham against him since the year 1793, when he was one of the Bank of England directors); also all debts due by me by Edward Kent on his own account or as ex’r to his brother, the late George Kent, & the said George Kent by his book 56 debt & his legacy to me of three hundred pounds, & for money lent him by me in his lifetime to a large amount, which I understand the said Edward Kent, with a wickedness & ingratitude peculiar to himself, hath, by every trick & litiguous effort, prevented my family receiving, but also has, by means most singular & un- precedented, seized in my absence on part of my real estate, & taken steps, by surrounding the same by a fence, to make it one day his own. However, I trust my case & my families to the laws of my country, & to that Being who, in the course of time, pulls to the ground the man of ingratitude and wicked will. The debt due me by Nugent, Esq., of the County Cavan, by bond & warrant, on which execution was issued, I think, prior to my leaving home in 1798, & and all other debts in Ireland, England, & elsewhere to my aforesaid three dear relations, and my most 57 excellent wife & my daughters, Maria & Margaret, who never in a single instance disobeyed me. May God in His mercy forever bless them. r I make as a part of my will that the debt due by me to Wm. R. Smith, Esq., counsellor-at-law of Huntingdon town, in the State of Pennsylvania, to whom my obligations can never be repaid, be first paid the debt due by me to him at the time of my decease out of the next sale or sales following the same. His generous holding to me in times the worst was unbounden, &, but that he is rich as he is good, I would largely set him down in this my will. However, as it is I hereby will and order that on all sale or sales of my several properties in America that shall take place from and after my death he shall be allowed & he is hereby authorized to deduct «& re- 58 tain — p’r cent from the gross amount of such sale or sales; and further — p’r cent. on the proceeds he shall remit in good ¥. DAO ee. as E> So pe en ee 19 JANE HERRON ET AL. VS. PHILIP DATER ET AL. & safe bills to my wife and two daughters aforesaid, or the survivor of them, as the case may be, taking from them or the survivor proper receipts from time to time; and in case of the death of my wife & daughters then I will the whole I have willed to them to the children of Maria or of Margaret, or both, forever, share & share alike. Dear- est and most beloved of my heart, farewell. N. Le FAVRE. At Philadelphia 21st February, 1815—fifteen. In Huntingdon county. Four tracts in Sinking Valley. NE 65 ga te si de vi ccaailint win ornhe 406,149 , SEES agente ene Ona eR Mba I 405,156 SALAD TIL SOAS: 424,119 | Bes REESE Re PE RTO 449,159 Centre county. Seven tracts in Big Bald Eagle Valley. I i oes cern mime wenn 412.10 i cease sw anak 412.10 SELL ATMO 412.10 59 And w Sommers... ........ 412.10 Peet memes... on +. -- so 412.10 Merah SOMES... 2. 1... e+. 402.48 iain sinha setuid hove 4 wonmriel 402.48 : On Trough creek the On.-Trough creek Isaac Harton.--.--. 402.48 : ; : Elizabeth ones | patent. with. Wan. R. Smith, Benj. R. Morgan, his words Mifflin county, one tract. to N. Lafavre. ~ Robert Thompson 206 in Greenwood. This measured on a resurvey by Monegham but 149 acres. This tract is near Millerstown, Kit Coxe resides on it by per- mission of N. L. Favre. Township adjoining Jas. Rigar & Edw. McConely, on the waters, Cockelamus creek, 4 miles ? from Millerstown. La Favre has title deeds and patent. He should be settled with and placed on the lands, say as a pur- chaser, at $10 an acre, to pay- of prin. and interest by $100 a year. Mifflin county continued. §8 tracts. IN aks: ketch op sell “lesa te caw in 400 ios sah ortho Ssh hin sian siento cho 400 Nahas: stasis t-te hectic cichaeot tinea esboml dh ancabnsie 400 EE ERE RE SAN oe aR ORO ena res 400 hci) Ss Succes onesies ome sti ce on orsaenain 400 I cSicnctnt scales cng Uasbeasbenrnrede sn Shi iain 400 a a cares caciceigien neriiese eait-n in one seeiioninnt 400 2 id Cain pga tiers sane nat Maso Sclmig dhincerek 400 60 I casinos wn avis tet nw sch ae 400 a search da he miei esse Wlilee 400 I chi tac ns csi oaths gaan toracabriediie niin 400 I ci cite ik necks oben mst enon oe ne 400 a oi rei dicnsaditn seit alts encoun 400 i en ncn wince 400 alk sehen iin teh ane 400 John Rubert =seE@eemwers ee Baste eces Mee awe ee FF owe ew ow ee SS oe ee ce eo ET AL. VS. PHILIP DATER ET AL. Mifflin County. JANE HERRON om 3 ? C Warrantees’ names. Quantity. | Warrant. Surveyed. e = na dt en i 10 Aug., 1793 | Dec., 1793 Le pees ce | ss oe 66 LEB Se 436.51 6 oe és SOE SG GUNNS cone commas cas ccuess| eee ve oe ae eB ee 6 i; : a ee Se ta. hoe ts tnseceniinel alsioniailitndh 438} os “ Jan., 1794 178 | Philip Dar ata enpatinesii miei 432.15 oe oe 6 | ek) ee aa 403.137 oe oe 66 6k ear pen ae ve 6 6 8 es en ee wt vs ) be ELLE fy 6 v6 ve i §e. eae 6 6 6 BOG | CORR Biel? .....cnncne - ac nimmiiiaadl 440 is us | a 61 | ESE. a 234 & eh 4 i) a5 a tg +4 JANE HERRON ET AL. VS. PHILIP DATER ET AL. 41 of taxes were paid by the claimants of said land. This is 121 offered in furtherance of the previous offer of the payment of taxes and as evidence of claim of title. Counsel for defendants object— 1st. Because the offer does not propose to prove that possession was taken and improvements es. on the lands described in this writ. : 2d. Because the offer does not propose to prove payment of taxes since 1864 to 1880 on the land described in this writ. 3d. Because the evidence already offered by the plaintiffs shows that the land described in this writ was conveyed by he N. Rathburn to the Columbia Coal Company by deed dated 28th August, 1864, and was sold by the sheriff of Northumberland county, Mar. 15, 1872, as the property of the said company, to Geo. A. Fellows and Philip Dater, the plaintiffs. 4th. Because, for the purposes of plaintiffs’ offer, payment of taxes cannot be shown without first proving such taxes to have been 122 properly assessed against the proper owners of the lands taxed. By the court. Objections overruled. Evidence admitted and this bill sealed at request of counsel for the defendants. M. W. ACHESON. JuHN E. RatHpeury testifies: Rollin N. Rathburn was my brother; lived in Philadelphia; now deceased; consideration paid for four tracts of land was $128,000 for each half, or $250,000; after purchase made by R. N. Rathburn, in trust, in order to develop the land, two companies were formed ; after companies were formed the stock was divided up; J. M. Bene- dict had one-sixth, H. Cushing one-sixth, Philip Dater one-sixth, E. A. Packer one-eighth, G. A. Fellows one-eighth, and myself one- fourth. Some others allowed their names to be used in both com- 123s panies. 1 was vice-president and looked after the lands. The Columbia Coal Co. was organized in 1864. The lands were surveyed and examined by Shaeffer, having also in view a practicable line for railroad. We had Roberts there, and Ammerman afterwards—Henry Pleasants also. We commenced immediately afver purchase to operate on these lands. We put upa house and saw- mill; put men to work shafting for coal to prove the veins, which we continued for a year; no other improvements at that time. We partially builttwoother houses. At the time we commenced there were no other improvements on the land. Noone lived on the lands at the time we occupied them, nor any railroad nearer than three and one- half miles by nearest practicable route. In round numbers we ex- pended in developing the lands between forty and fifty thousand dollars; erected dwelling-house for the men in 1864; continued operations for one and a half years, when we suspended work, 124 ~=having no railroad near. We left Isaac Lewis in charge, who opeued a drift in the vein. He was to take charge of the 6— 399 To A iy CoB Des tie eine REE NE a ek ie a aii ok ac ik Fee ee 42 JANE HERRON ET AL. VS. PHILIP DATER ET AL. roperty. He took out and sold coal to farmers. Lewis was fol- Coad by Jonathan Hoover, who put his son-in-law there, named Zimmerman. He corresponded with us, paid taxes, &c.; lived at Mt. Carmel. He so did till death, about 1872; was followed by William Griffith, who occupied the house and took out coal. He remained two or three years, and was followed by William Hand; lived in Red House; performed same duties. These persons staid until 1873, when Ed. Davis came. Hoover was directed by me to have some one occupy the Red House and look after th peroperty. Davis was living there when these defendants came and took pos- session. (Witness here explained that he thought Griffith followed Hand.) None of the owners lived near the land antil I 125 went to Treverton in 1870, which is 12 or 13 miles away. I have paid taxes myself for the company ; was vice-presi- dent and general manager for both companies. I paid taxes for the following years: On William Elliot, $158.63; William Shannon, $144.35; Lewis Walker, $144.79 in January, 1868; this was redemp- tion money—number of acres not given in my receipts. Same date I redeemed Nathaniel Brown by sending messenger with money, $119.00. I remember of paying other taxes. Several times money was forwarded to Hoover to pay them. Our payment- of taxes have been continuous from 1864 to 1880. Defendants took possession of the land in 1875. I was then living in New York; on hearing of their action I came on and went there and saw them in possession; Davis was there. I know that Davis was there. Defendants were in the “ Red House.” I saw Cummings there; not the first time I went. They were without my 126 permission or knowledge. I think I did not at first demand possession. Following that I went to Pottsville, and then had them arrested and taken off the property and took possession myself. Afterwards they took possession again. Cross-examined : The “Red House” is on the William Elliot—on the turnpike from Reading to Sunbury. That is the only tract on which any improvements were made; no developments on the Lewis Walker. The unfinished houses were on the Elliot, also the saw-mill—all the improvements were there. The saw-mill is all rotted down; did not go on the property when I saw Cummings at Shamokin; did not go there to see who were in possession; went there with the deputy sheriff. The arrest was for cutting down trees, &c. I don’t recollect that judgment was rendered against me. It may 127. have been. It was never tried. I don’t remember who were arrested. The parties I arrested were taken to Mt. Carmel. They returned the same day. They went into the log barn. I then pulled down the barn while they were in it. I had a good force of men there. They arrested me for forcible entry. John H. Gable led my men when they tore down the barn. I saw Davis while he was on the tract; that is my impression. I had no consultation with him while on the tract. I and Fellows constituted Hoover — our agent. He wanted to lease the property from us. Griffith was cette iene cents ‘ite te enim ° a . Ne ee > “ we then 4 5 a ae f ’ 4 ~ noe ad os Nees as Sale reas Fi BES As Nei i 2 a co si ee $i a . ee Pe a ERC Te SERRE Ree SP NR Pe aN Mes ne geen) Ae Ee aa er A yt be ane : Se RI Ae ERY See eR Te ape he ae ‘ be ae Pee ek en eS Bt ‘ a Cpe . tee ve ; JANE HERRON ET AL. VS. PHILIP DATER ET AL. 43 holding at the latter part in opposition to us. I never tried to put him out. I have always understood that Griffith bought Hand’s interest out. I went to Sunbury and arranged with Greenough to ascertain who. was entitled to the royalty on the coal taken out by 128 Hand. We took down the houses and stopped working. “i Redirect : + The “ Red House” cost $1,500 or $2,000; it was a permanent building. Judge Dietrick led the opposition forces from Williams- port, 30 or 40 in number. PI’ffs read as follows: | Seated assessments previously offered and admitted. The Northumberland Coal Company, seven houses; State tax, $36.68. | William Elliot, 368; Lewis Walker, 318; William Shannon, 333: valuation, $12.228. | { Assessment for 1865. Assessment for 1866. The Northumberland Coal Company, 1,019 acres; valuation, - $12,228; State tax, $12.64. | 1867.—Northumberland Coal Company, 1,019 acres; valuation, . $12,228; $1.24, county tax. 1858.—Northumberland Coal Company, 1,019 acres, occupied by self: valuation, $18,342; county tax, $146.7: 129 1869.—Northumberland Coal Company, 1,019 acres. occu- pied by self; valuation, $18,342; county tax, $146.73. me o a wee ae ere owee ee emt pe oe ~ Se ae ae . ee a on l[Acres.| By whom occupied. Valuation. County tax. B70. Mosth’a Cont Oa..t 8 S006 bien ccie ccun ceconsinaien | 18,342 | $146 73 1871 ~ pel ROPE Pnccmed mneiis sna mmaied “ \. 128 39 1s72 se aa RAE Dich dcrindibilantin oamaiiuws + | 928 39 1873 | 4 agin I Ried casi bias hk ded inns - 12k 29 1874 “ 14,019; Ed. Davis........../ 20,3804 101 90 9g 1875 “ ..| 1,019 “ . is , 101 90 "4 IR76 ‘i ..| 1,019 | Walkine & Trege!les “ | 222 #0 Ik77 “ 1 1,019. “ 7 s 1M 66 IS7S se 1,019 Isanc Lewis... ... 12.190 | 8h 33 | 86 76 wail tax. IS7o i .. 1O1g ee ee 12.100 Kn 33 47 Bete LU é' ke 8 RFR TE a cece ea es aise 12.190 | BD BA ‘ fer wan « ‘ ' R81 “ f | BEerann es twtine 2306 i 6 1SR2 uc OE fi 130 GEORGE A. HERRING sworn: 4-f JANE HERRON ET AL. VS. PHILIP DATER ET AL. I live in Bloomsburg, Columbia Co.; I am deputy treasurer. These are the sale books of the treasurer of Columbia county. JOHN B. CASEY sworn: I reside in Bloomsburg, Columbia county; I am clerk for county commissioners. These are unseated land books (showing books). . Counsel propose to show payment of taxes on Nathaniel Brown and : part of Lewis Walker. 1838, ’39, ’40, ’41—Roaring Creek Township. f | Valu C : _| Valua- | Co. , Warrantees. |Acres.| sion. | tax. Total tax. — — ~--—-~-—- --__-——---— . ' Brown, Nathaniel _-| 150 225 56 | 2.19 / 1842 & 43.-| Brown, Nathaniel _-| 400 adit, De 8.68. P’'dby J. Pheasants. : 1844 & °45.. Brown, Nathaniel -.; 400 Be Bis cont 14.81. P’d by J. Phea-t sants. 1846-47_-___- _ Brown, Nathaniel --| 400 Be. Vcnelan 15.90. P’d June 9, 1848,, | by R. F. Clark, for H., | Bellas. 1848-9_. _..| Brown, Nathaniel _.| 400} 200 |._-.-. 16.30. P'd June 8, 1850,! | by C. Garretson. , 1854-55 - .-| Brown, Nathaniel --' 400) 800 |-_.._.; 33.13. P’d May 31, 1856,: | | | by R. F. Clark, for C.: | | Garretson. : | fg 131 Conyngham Township. t | Acres. | Tax. | } ’ a | dinipa PE OEE ————__ 1856-57_..-.| Brown, Nathaniel 400 | 46.40 | P’d April 26, 1857, by C. Gare | retson. 1860-61 .....| Brown, Nathaniel _-| 400 40.80 | P’d Mareh 3, 1862, by R. F: Clark. ? 1862-63 ..._| Brown, Nathaniel | 400 | 87.60 | P’d April 14, 1864, by T. O: | Van Allen. , 1864.65 ._..._. Brown, Nathaniel _.| 400 00.88 | P’d June 11, 1866; sold te | | | A. W. Rea; redeemed by | Jno. E. Rathbun for Col; Coal Co. ninediipsinnnsl ? ? t O 8 eee errenme e ote mrcape nee: ed JANE HERRON ET AL. VS. PHILIP DATER ET AL. = Treasurer's Book. 3 | . Acres. Tax. | a wes 1864-—65._...' Walker, Lewis-.-_--. 8 (.....---| P’d June 8, 1868, by A. W. | Rea. P’d June 11, 1868. | 3 | | | Jno. E. Rathbun. 1866-67 ....._. Brown, Nathaniel -.; 450 160.65 P’d June 8, 1868, by A. W. ra | Rea. P’d June ll, A. W. F | : | Rea, by Rathbun. et ee Walker, Lewis -__-- - 8 2.86 | P’d June 8, 1868, by Jas. E. } : | Rathbun for Col. Coal Co. 1868-69_ .._- os a4 8 |._......| Valuation, $30.00. Seld June | 80,1870; red. June i2, 1872, | by Geo. A. Fellows. res “6 | Brown, Nathaniel _.. 150 .__.....| 329.67. Sold June 30, 1870; ie | redeemed June 12, 1872, by im ! | Geo. A. Fellows. N 1870-71_ ....| Brown, Nathaniel oof OOF ie ain 351.70. P'd June 3, 1872, by | | Fellows and Dater. OF niin ain Walker, Lewis --.. -| 8 3.31 | P’d June 11, 1872, by Fellows | | | & Dater. 1872-73. .... a a & 4.10 | P’d April —, by Packer, for | Fellows. 1872-73_ ..._.| Brown, Nathaniel _.| ._. .--- 453.90 | P’d April 15, 1874, r | | W. C. Packer, for Fel- : ' lows. 132 1874-75, Brown, Nathaniel .-)..-.-... ..-....- Sold June 12, 1876, to Geo. A. ; Fellows; redeemed June 5, a | . 1878, by R. M. Cummings. | 1874-75. ... | Walker, Lewis...../.... .-. | .....--. Sold June 12, 1876, to Geo. A. oe Fellows; redeemed June 5, 1878, by R. M. Cummings. 1876-77_....| Brown, Nathaniel _. 450 498.15 | — 10, p’d by Geo. A. Fel- : ' ows. ‘6 64 | Walker, Lewis. ....; 8 9.74 - —- 10, p'd by Geo. A. Fel- ows. 1878-79. ..... Brown, Nathaniel | 450 | 87.50 | Sold June 21, 1880, to D. W. : | | Kingsbury; redeemed June | 12, 1882, by Jno. E. Rath- bun. * _..--| Walker, Lewis. ....| Evidence for Defendants. 4 ee ee a Counsel for the defendants offer the application for the Lewis Walker and a large number of other tracts, dated the 26th day of November, 1793. Endorsed on the back: Reese, Evans, and others; entered by William Lane for Daniel Reese; certified the 5th day of May, 1877. : 133 The head of the application reads thus: Daniel Reese applies for four bundred acres of land, ad- joining lands surveyed for Cadwalader Evans on the northwest corner of the same, to include a large branch of — in Lower Bald Eagle township, Northumberland county. Among others William Elliot applies for four hundred acres of land on a branch of Roaring creek, etc. Ebenezer Branham applies for four hundred acres of land on a 46 JANE HERRON ET AL. VS. PHILIP DATER ET AL. branch of Roaring creek, adjoining Dr. Thomas Ruston’s lands, ete. Lewis Walker applies for four hundred acres of land one mile north of a road leading from Reading to Sunbury, etc. William Shannon applies for four hundred acres of land one mile north of a road leading from Reading to Sunbury, adjoining other lands of Dr. Thomas Ruston, etc. | 134 Joseph Tyson applies for four hundred acres of land one mile north of a road leading from Reading to Sunbury, adjoining other lands of Dr. Thomas Ruston, etc. Defendants’ counsel offer in evidence warrant dated the 26th No- vember, 1793. Lewis Walker, four hundred acres, lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston’s other lands. Also warrant dated 26th of November, 1793, to William Shannon, four hundred acres,lying one mile north of a road leading from Reading to Sunbury, adjoining other land of Dr. Thomas Ruston. Also offer warrant dated 26th November, 1793. William Elliot, four hundred acres, adjoining lands this day granted to Cadwalader Evans. Also offer in evidence warrant dated 26th November, 1793. 135 Nathaniel Brown, four hundred acres, on a branch of Roaring creek, adjoining Dr. Thomas. Ruston’s lands. Also offer in evidence warrant dated 26th November, 1793. Eben- ezer Branham, four hundred acres, on a branch of Roaring creek, ad- joining lands of Dr. Thomas Ruston. Defendants’ counsel offer in evidence survey dated the 22d of » October, 1794, on a warrant dated 26th November, 1793, to Lewis Walker containing 3714 acres and allowance. Also survey dated the 22d of October, 1794, to William Shannon on warrant dated the 26th of November, 1793, 415 acres and allow- ance. Also survey dated the 22d of October, 1794. William Elliot on warrant dated 26th November, 1793; three hundred and sixty-eight acres and allowance. Also survey dated the 21st of October, 1794. Nathaniel 136 Brown on warrant dated 26th of November, 1793; four hundred acres and allowance. Also survey dated the 21st of October, 1794, Ebenezer Branham on warrant dated 26th of November, 1793; four hundred and forty- one and one-fourth acres and allowance. The defendants’ counsel offer in evidence a certified connected draft from the land office of the six tracts of lands named in the warrants just given in evidence, dated the 9th of October, 1874. The defendants’ counsel offer book already in evidence, marked on the outside: 1796. Returns of deputy surveyors by William Gray for Augusta, Catawissa, Shamokin, and Mahanoy. We find in this book the certificate of William Gray, deputy sur- veyor, which reads thus: GENTLEMEN: I have made this return as exact as was in 137 my power from the papers in my hands, and am, gentlemen, with respect, vour very humble servant, WILLIAM GRAY, D.S. JANE HERRON ET AL. VS. PHILIP DATER ET AL. To Christian Derring, Henry Vandershie, and Nathan Stockman, com’rs of North’l’d Co. Dated Jariuary 26, 1796. The numbers are: me eo = ; , £ ee : S | Name of warrantee. | £ Situation and remarks, A | | No. 33. JANE Herron et al. Charge of the court. GENTLEMEN OF THE JURY: This is an action of ejectment, brought on April 24, 1882, by Philip Dater and Elizabeth L. Fellows, against Jane Herron and other defendants named in the writ, for a tract of land situated partly in Northumberland county and partly in Columbia county, in the western district of Pennsylvania, and containing about 230 acres. For the most part the land lies in Northumberland county—a small corner only, consisting of about 7 or 8 acres, lying within Columbia county. The land in contro- versy is part of a tract of 371} acres designated during this trial as + Peer 3 ee me eee “. . . x 2 . ‘ e ae SS a em Ca gl ee a A ate tae ee oe see rae Pe Ti be » Pree oe VES 56 BE 6 an, eta > Ee =¥ > ‘2 : 3 : a ? ee ot prt et sak a EN , ey JANE HERRON ET AL. VS. PHILIP DATER ET AL. the “ Lewis Walker tract,” having been surveyed on the 22d 168 of October, 1974, upon a warrant issued to him. The plaintiffs put in evidence a certified copy of an ancient paper, dated Sow. 26, 1793, on file in the land office, designated as old purchase voucher No. 12969, and in connection therewith a certified copy of an entry under date of June 14th, 1794, from the “old purchase blotter” in the land office. These documents were offered to show, and they are evidence tending to show, that Dr. Thomas Ruston was the owner of the Lewis Walker warrant, and paid to the Commonwealth the purchase-money for said tract of ie land. An exemplification of a record of the circuit court of the United States for the then district of Pennsylvania (in evidence) shows that on Oct. 13th, 1796, James Clayland, for use, obtained a judgment in that court against Dr. Thomas Ruston, which was afterwards revived and such proceedings had thereon that, in pursuance of a writ of execution (Vend exp.), John Smith, the United States mar- 169 shal, on August 15th, 1808, sold the said tract of land as the ‘ property of the defendant, Dr. Thomas Ruston, to Nicholas Le Favre, to whom the marshal, on Oct. 11, 1803, executed a deed dated and acknowledged on the date last mentioned. The plaintiffs have shown that by sundry mesue conveyances the title which Nicholas Le Favre thus acquired became vested in them ' prior to the bringing of this action. In connection with their paper title the plaintiffs gave evidencc tending to show that for many years they and those under whom they claim asserted title to the land and paid taxes thereon without any hostile claim being set up against them until the year 1875, when the defendants took possession. If the evidence on the part of the plaintiffs is believed by 170 ~—sithe jury it makes out a prima facie case for the plaintiffs, and they are entitled to your verdict upon this branch of their en oe » title. In order to simplify the case (and by agreement of the counsel of the respective parties) I instruct you to disregard and throw out of the case altogether the evidence which relates to the distinct title which the plaintiffs set up under the tax sale to Charles Pleasants. In U.S. Circuit C. June T., 1882. Puitie DaTER ef al. v8. . No. 33. Jane Herron et al. J Before verdict — rendered counsel for defendants except to the } following parts of the charge of the court to the jury: “The plaintiffs put in evidence a certified copy of an ancient paper dated Nov. 26, 1793, on file in the land office, designated as old purchase voucher No. 12969, and in connection therewith A nett. _ “ - . POE : : ee DP cr ee eres aera A M_LOE LOL LIES CE DOTNET AR ESEIE EIEE RAS HN * o ‘ +. ; « RR 5: gt crncteaats. * PR es Ee ee Pt ae ks 52s - DLE Be SOMES BOP Le. ea d y Pe. + M a sik ea So e _ = 4¥ 2: 9 Oe ete ‘ ‘ oe Pape deat) ae Se . hee. Ras wae. Op RRRNS tate? tee Sen ea ee pe on a Hs ei oat ie SANT Ao Pe eee te Re I aa ie ales ai. Cte t Tet. et os a tate et an SS. ae Soe Nada Oak tas One ae MRE AT RO eee aie hE ee Oe SST eee AE Oa Sat ee aes ai pat Peed Baiee AE eR Gee One hed ee Eee BM” ils Lae ee Geo edt Fae ane oA CRE Nn ERs ee ie Br a Te 9 a of 4 Ss pies): At Me PE CD fe SARS OO Tee oa Ge RE PR Te eee ee Pat at 4. Be ein: | oe ae ery ton AN i a : Thy, Pe So x, : % : . ee tS re. : Math ate PF SR * re ‘ “ r > . « ~ e : - ~«- > * > - 7 “ = . - « ° - e oo & = = ° - ‘a ns > ~ © = - s @S4rarr seria! ee a - : y : ; ; : . SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1885. No. 399. JANE HERRON AND CHARLES D. HERRON, HER HUSBAND, IN RIGHT OF SAID JANE; ELIZA- BETH B. JACKSON AND JOHN A. JACKSON, HER HUSBAND, IN RIGHT OF SAID ELIZABETH B.; CHARLES J. TOWER, AND R. M. CUMMINGS, Plaintiffs in Error, VS. PHILIP DATER AND ELIZABETH L. FELLOWS. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. STATEMENT OF THE CASE. This is an action of Ejectment brought by Philip Dater and Elizabeth L. Fellows against Jane Herron and Charles Her- ron, her husband, in right of the said Jane, Elizabeth B. Jackson and John A. Jackson, her husband, in her right, Charles J. Tower and R. M. Cummings, in the Circuit Court of the United States for the Western District of Pennsylva- nia, to recover possession of a certain part of a tract of land situate in Mt. Carmel Township, Northumberland County, in said district, containing two hundred and thirty acres, or thereabouts, and being part of a tract of land surveyed on the 22d day of October, 1794, in pursuance of a warrant dated . SELAE® GWOT HERE. Lee FOrnTERS Gri cemeenet Oe) ee te eb nil Rein a aR ae ni) canada -n>atieriay auant tbnondiee Lcalinaeremsiaa nen eee ee ee —s 4 4 rl Bi PF am yn, Dd ee ‘ at psig eis PR AAS, i A RE ig” ial ae Di ald thas AS Kiniite cena ahead 2’ Radebicsdi in aodehsan alt wet be OO ed . : aa 2 7-5 iliac LD 9 AS os 5 fy elie toes aM i Bee OE ep ee nL ea. A or i rea ns! 3. i 2 eh Cees OM na ok, en: Bad § fap, ay 5 ° tra 4 ah, Fy Teena SN) A EO OMY es aye Poe . > eres eae DE NOREEN 2 SEG EMEA OR i eae ee ee Bee Ba Fak Oe SESS sce es ae "Rage £5" RE OREIS. N NRR taneaien amtis ina = : Ee g aw a dR Ht TY EO a teen ee , 23 FN CORES EO) ORS, Oe ee a ee oe i a i . BS é : z 8 ‘‘ Plaintiffs also offer certified copy of record from the Or- phans’ Court of Philadelphia County, in the matter of the estate of Nicholas LeFavre, dec’d, containing the petitions of Wm. R. Smith, administrator cum testamento annexo of the estate of Nicholas LeFavre, dec’d, for order of sale to pay debts of said decedent and proceedings thereon, and the deed of Wm. R. Smith, administrator of Nicholas LeFavre, . dec’d, dated 9th May, 1837, to Joseph Bobst for five tracts of land including Lewis Walker tract, William Elliot, William Shannon, Nathaniel Brown and Abraham Scott. ‘‘ This offer for the purpose of showing a sale and convey- ance of the title of LeFavre to Joseph Bobst. ‘*Counsel for the defendants object to the said record and deed, because the debts of the decedent as set forth in the pe- tition of the administrator, to pay which the order of sale is- sued, were barred by the statute of limitations, their lien ex- tinguished, and would not give jurisdiction to the Orphans’ Court to grant such order. ‘*Exceptions overruled, evidence admitted, and this bill sealed at the request of counsel for defendants.”’ M. W. ACHESON.”’ THIRD.—The Court below erred in sustaining the objec- tions of the plaintiffs below and in rejecting the evidence of- fered by the defendants below, which said offer of evidence, objections and ruling of the Court, are as follows: ‘* Defendant’s counsel offer, viz: ‘* Plaintiffs having introduced in evidence the return of | William Gray, (dated January 26, 1796) deputy surveyor of the Commonwealth of Pennsylvania for Catawissa and other townships in Northumberland County, of the Lewis Walker and other surveys; ‘*’Phe defendants now offer to read from the same return of William Gray, deputy surveyor, other surveys in the same township returned as belonging to Dr. Ruston, to be followed by the assessment books of Northumberland County, showing payment of taxes on lands returned as the property of Dr. 9 Thomas Ruston, to a different person or by a different per- son than the one who paid or received the taxes on the Lewis Walker tract. Also that another tract in the same county was surveyed in the name of Lewis Walker, and said tract was returned in the aforesaid return of William Gray as the property of Dr. Thomas Ruston, and that the taxes on this tract were paid to or by the same person who paid or received the taxes on the other lands of Dr. Thomas Ruston, and who was a different person from him who paid or received the taxes on No. 754 Lewis Walker survey. ‘“This offer is for the purpose of explaining that part of the return of William Gray, deputy surveyor, and those parts of the assessments received in evidence on the part of the plain- tiffs, and to show by the same ancient record offered by the plaintiffs and in part read by them, that Dr. Thomas Ruston made no claim nor exercised any act of ownership to or over survey No. 754 Lewis Walker. ‘* Plaintiffs’ counsel object to the offer, — ‘* rst. For the reason that the offer is irrelevant and is in- competent for the purpose stated therein. ‘*ad. The offer for the purpose stated therein is immaterial. ‘*3d. The duty of the deputy surveyor was simply to re- turn the land for taxation, and the duty of the county commis- sioners was simply to value the lands and levy the taxes as- sessed by them; that neither had any power or authority to affect the ownership of the lands returned and assessed. ‘‘ath. The return of other lands than the tracts in ques- tion, and the taxation of them to Dr. Ruston, and the payment of taxes by Ruston or others to the same or another officer of Northumberland County, are wholly irrelevant to the issue in this case, and do not prove or tend to prove claim or non-claim of the Lewis Walker tract in suit. ‘* Objections sustained, evidence rejected, and bill sealed for defendants. | M. W. ACHESON.”’ (See Print 47, 48; Org'l 138, 189, 140). dominic Be IO FourTH. The Court below erred in sustaining the objec- tion of the plaintiffs below and in rejecting the evidence offered by the defendants below, which said offer of evidence, objec- tions and ruling of the Court are as follows: ‘* Defendants’ counsel offer No. 1, (to be) received in con- nection with the further offer to show that the taxes paid by the marshal’s sale of Dr. Ruston’s lands 1n Northumberland County were paid to John Boyd, as shown by said return. To be followed by the assessment books of Northumberland County for the same years, in which a tract of Lewis Walker assessed as belonging to T. Ruston was charged with taxes, and the same marked paid to B., and that in the same assess- ment books for the same years tract No. 754 Lewis Walker was assessed with taxes and the name of no one given, (as owner) and taxes marked paid to S. This to be followed by evidence showing that according to the mode of doing busi- ness in the collection of taxes in Northumberland County, the Treasurer in receipting such taxes marked on the assess- ment (book) his initials. This offer is made to show that Thomas Ruston made no claim to the survey Lewis Walker No. 754, but did make claim to the survey Lewis Walker 306, as returned by the deputy surveyor, and to show in con- nection with the application at Harrisburg already offered that Thomas Ruston did not make the application for Lewis Walker No. 754, or make any claim to it subsequently, and that if he paid any purchase money at Harrisburg it was upon the Lewis Walker No. 306. ‘* Plaintiffs’ counsel object. ‘* As to the return of the marshal and all that it contains, it is already in evidence; we make no objections. The un- seated land book of Northumberland County, as far as it re- lates to the Lewis Walker survey which is numbered in the margin by the No. 754, is already in evidence, and any marks that appear upon that book opposite to the charge of taxes are already in evidence. The fact that Dr. Ruston was charged with taxes upon another tract of land in the name of Lewis Walker as warrantee, and that the taxes thereon were paid and marked as paid to B., is wholly immaterial to this case. It does not prove or tend to prove any fact matcrial to the issue II we are trying. What was the land that was sold and upon which the marshal paid the taxes can only be ascertained by reference to the marshal’s deed and the writs in evidence. That is better evidence of what was transferred by that sale than any reference to the Commissioners’ or Treasurer’s books. Any competent testimony the defendants may have to prove that Dr. Ruston did not apply for the Lewis Walker in con- troversy in this suit, or that he did not pay the purchase money for it, we make no objections to; but we deny that the fact can be proved by a reference to the assessment books or the Treasurer’s books of Northumberland County. To so much of this offer as is embraced in offer No. 1, we make the same objections as we made to No. 1. Asa further objection to this evidence, the record, the judgment of the Circut Court of the United States of Pennsylvania shows that the marshal sold five tracts, of which Lewis Walker in controversy was one, and that he paid taxes on those tracts which he sold, because the taxes were by law made a lien upon those lands. ‘* By the Court: The Court rejects the offer and seals a bill for the defendants. M. W. ACHESON.”’ (See Print 48, 49; Org’l 141, 143, 144). FiFTH.—The Court below erred in sustaining the objections of the plaintiffs below and in rejecting the evidence offered by the defendants below, which said offer of evidence, objections and ruling of the Court are as follows: ‘* Defendants’ counsel offer in evidence a certified copy of Patent dated April r2th, 1797, for the Lewis Walker tract for three hundred and seventy-one and one-fourth acres and al- lowance of six per cent. for roads, &c. The Patent is from (Commonwealth of Pennsylvania) to Peter Grahl for a certain tract of land called Brookland in Catawissa Township, North- umeriand County, which said tract was surveyed in pursuance of a warrant dated 26 November, 1793, granted to the said Lewis Walker, who by deed dated the 27th of November, 1793, conveved the same to the said Peter Grahl with the ap- purtenances. 12 ‘‘ Plaintiffs’ counsel object because it is not competent for the defendant to read the Patent with the recitals therein con- tained as against the plaintiffs, who claim under Dr. Ruston. The recitals in the Patent are not evidence as against those claiming under Dr. Ruston. | ‘‘Second,—The defendants have not shown that Peter Grahl was entitled to take out the Patent, or that he paid any consideration whatever. As the case now stands the Patent enures to the benefit of the plaintiffs, and because the evi- dence is irrelevant and immaterial to the defendants’ case. ‘‘’Third,—The marshal’s sale of 1803 conveyed the whole interest to LeFavre, and entitled him to obtain the Patent. The marshal’s sale relates back to the date of the judgment in 1796, which is prior to the date of this Patent, and cuts off conveyances subsequent to the date of the commencement of the lien of the judgment. ‘‘ Objections sustained, evidence rejected and bill sealed for the defendants. M. W. ACHESON.”’ (See Print 49; Original 145 and 146.) S1xTH.—The Court below erred in sustaining the objections of the plaintiffs below and in rejecting the evidence offered by the defendants below, which said offer of evidence, objec- tions and ruling of the Court are as follows: | ‘“’The defendants’ counsel renew the last offer,’’ (contained in the fourth assignment of error), ‘‘and in connection there- with offer to show conveyances from the patentee to the de- fendants in this suit, as follows: ‘* Letter of Attorney from John Grahl to Peter Grahl, dated the 4th day of June, 1779, acknowledged on the 21st day of February, 1800, recorded in Northumberland County in Deed Book ‘‘ L’’, pages 147 and 148, on the 26th day of February, 1800, authorizing the attorney-in-fact to contract, grant, bar- gain, sell and convey unto purchaser or purchasers all or any part of his lands situate in Northumberland County, including the warrant of Lewis Walker. 13 *‘Also deed of John Grahl, by his attorney in fact, Peter Grahl, to Charles Tower, dated 11th of February, 1800, ac- knowledged the 13th of February, 1800, recorded in Northum- berland County, in Deed Book ‘ L,’ page 148, etc., on the 26th of February, 1800, for six tracts of land situate in Northum- berland County, containing zz/er alia the Lewis Walker tract, patented to Peter Grahl. ‘Also, Will of Charles Tower, dated the 29th of December, 1829, probated the roth of March, 1830, recorded the roth of March, 1830, and letters testamentary, issued to Jeremiah Tower and John Anderson as executors, devising all his prop- erty, real and personal, to Jeremiah Tower, (his nephew). ‘* Also offer to prove that Jeremiah Tower died in January, 1851, intestate, leaving a widow, Julia Ann Tower, and chil- dren as follows: Jane, intermarried with C. D. Herron; Eliz- abeth B., intermarried with John A. Jackson, and Charles J. Tower. ‘‘ Also offer deed dated the 14th of April, 1875, from Julia Ann Tower, widow of Jeremiah Tower, deceased; Elizabeth B. Jackson and John A. Jackson, her husband; Jane Herron and Charles D. Herron, her husband, and Charles J. Tower, all of the City of Pittsburgh, heirs and legal representatives of Jeremiah Tower, deceased, to R. M. Cummings for the undivided two-thirds part of a tract of land surveyed on a warrant issued to Lewis Walker, dated November 26th, 1793, and patented to Peter Grahl, together with other parcels of land. Acknowledged the 14th of April, 1875, in the county of Allegheny and state of Pennsylvania; recorded in North- umberland County, in Deed Book Vol. 70, page 336, &c., on the 20th of August, 1875. ‘* This evidence to be followed by proof that these defend- ants took actual possession of said lands in March, 1875, de- scribed in the foregoing conveyances; paid taxes by redeem- ing the said lands from tax sales; made improvements, ex- pended large sums of money in opening coal mines, and have since and do now hold actual possession of said lands. ‘* Also to be followed by evidence that Nicholas LeFavre had personal notice of the title under the patent issued (by the Commonwealth of Pennsylvania) to Peter Grahl, and its yr fe a Pes a oe wy he & oe peer: Fe LA IS ONE RC ANG EY CAESARS SEP NR RTS a i safe ay aie aa rae 2 * re Ne ie Se aa = ‘. hte eS hed a ot ay a os ter ae A gy Re: Oe ee RN ae Syke pee RS 14 conveyance to Tower, in October, 1814, by a letter from Hugh Bellas to N. LeFavre, bearing date October 7, 1814. ‘* Also to be followed by proof that at the Sheriff’s sale, when the plaintiffs in this case purchased in 1872, notice was given to bidders of the title of these defendants. ‘* Plaintiffs’ counsel object, ‘* Because the testimony offered is irrelevant and incompe- tent. ‘* Objections sustained, evidence rejected and bill sealed for the defendants.”’ } (See Print 50 and 51; Original 147-151.) SEVENTH.—The Court erred in charging the jury as follows: ‘*The plaintiffs put in evidence a certified copy of an an- cient paper dated November 26, 1793, on file in the Land Office, designated as old purchase voucher No. 12969, and in connection therewith a certified copy of an entry under date of June 14th, 1794, from the old purchase blotter in the Land Office. These documents were offered to show, and they are evidence tending to show, that Dr. Thomas Ruston was the owner of the Lewis Walker warrant and paid to the Common- wealth the purchase money for said tract of land.”’’ (See Print 56; Org’! 170, 171). EIGHTH.—The Court below erred in charging the jury as follows: | ‘*The plaintiffs have shown that by sundry mesne convey- ances the title which Nicholas LeFavre thus acquired became vested in them prior to the bringing of this action. In con- nection with their paper title the plaintiffs gave evidence tend- ing to show that for many years they, and those under whom they claim, asserted title to the land and paid taxes thereon without any hostile claim being set up against them until the year 1875, when the defendants took possession. If the evi- dence on the part of the plaintiffs is believed by the jury it makes out a prima facie case for the plaintiffs, and they are entitled to your verdict on this branch of their title.”’ (See Print 57; Org’l 172). BRIEF OF ARGUMENT ON THE PART OF THE PLAINTIFFS IN ERROR. The recovery of the land in dispute by Dater and Fellows in the Circuit Court was based wholly upon an alleged equity against the legal title in Jane Herron and her co-tenants, un- der the grant from the State. The equity relied upon was a memorandum in a book or blotter found in the Land Office of Pennsylvania, called old purchase blotter, or John Keble’s blotter. In regard to the legal value of this memorandum the late Jeremiah S. Black, while Chief Justice of Pennsy]- vania, in delivering the opinion of the Court in Strimpfler v. Roberts, (18 Pa. St., 297), said: ‘‘John Keble’s blotter, and other books in the Land Office, show that Benson was charged with the price of this warrant and that he paid it. This blot- ter was never considered a record; and certified copies were not admitted in evidence until the Act of 1823 was passed for that purpose: Purdon, 427. Previously to that time the en- tries were proved and admitted as private papers: 8 Watts, 112. The Act of Assembly did not change their nature as evidence, but only furnished a more convenient means of get- ting them before courts and juries. They were admitted be- fore and since 1823, apparently upon the rule which admitted other private memoranda of deceased persons in evidence where they were against the interest of the persons mdking them. But long experience of their accuracy has given them a credit which no other official books have received in our courts. Still they are but parol evidence, and are not conclusive proof of anything. That warrants were frequently said by those books to have been paid for by persons who did not actually advance the money, except as agents, no one can doubt; and the fact has been often proved.’’ The entry in the purchase blotter relied upon in the case at bar does not identify the tracts, except only the number at the top of the entry—12969—which is the same figures as stand ES Cs 1. Biles hn Be PS 16 on the statement or entry called the purchase voucher. But the entry in the blotter does not show the amount of money paid. ! It is: ‘‘ Fees 60 § p’d; rem’r ch. of 168 D’s. Rec’t d’d.”’ We understand from the abbreviated terms that it means that the fees of 60 shillings were paid, and that the balance on the warrants of $168 remained charged against the land. One point is certain, that if a receipt for the amount actually paid was delivered to Dr. Ruston, its production would show what was the precise amount paid and upon what account it was to apply; and if Dr. Thomas Ruston had paid any money to the Commonwealth on the purchase money due on the Lewis Walker tract, the receipt would have been preserved by him and his assigns to prove his ownership in opposition to the application, the warrant and the survey of the Lewis Walker, all of which show he had no ownership of the tract. No extrinsic proof was offered by the plaintiffs below to ex- plain the indefinite terms of the blotter entry they rely upon, or that Ruston had any connection with the application, war- rant or survey of the land now in dispute. If Dr. Ruston did make payment of the purchase money on the Lewis Walker tract by mistake, or without the autho- rity of the owner, then such payment can give him neither title nor equity. It would be simply a volunteer payment, and he could derive no possible benefit from it. On the other hand if the payment of the purchase money was made by Ruston, and he made it with the approval of the owner of the tract, the legal title would still remain in Lewis Walker or his vendee under the application, warrant and survey, but Ruston might acquire a resulting trust in the tract by reason of his thus making payment of the purchase monev. But Ruston never did anything to enforce his trust, if he ever had any. The evidence is clear that the land in dispute remained unoccupied and unimproved—unseated, as it is termed under the statutes of the state—until actual pos- session was taken of it in 1875 by the plaintiffs in error. The lapse of twenty-one years bars this equity if it ever existed in Ruston. ‘In short the Courts of this State’’ (Pennsylva- » ” = ee a (fag ag ih Pca anes Yh hak bbe ick ey ; : ? : f ip ie are de vr. de RRR Sena ae exe . 2 , ar sa St rs Pe ESD Oe ae OE ae ete a eee Bae Pa rd . . re . OT Ter POSEN et REARS OSU a Saree Lore a eS EC as. tose oe Ce sia o - Fu Oh Sa e fo ne c n BE on iti ote he Ss oS ef, Rieti 4 ¥ ¥ ay Lt foes 1 eR AE EN or Te ys sheen x ere i i - 7} oe . gan) ; a, - F Pere man : : : . " —_ aie e's oy ae 7a PUA a 2) Se ee ee ae » Lt, y (Tie hie 6 - ’ . , er Fe ee Ate te A SERIE eS Sa oe oP : ORES NRE ee onl len 1a eee ae , DR, LS IE ERE ONSET ne 9 hy Lee Ee fe Sk LS Te a eee ae eM R I oe - . ios a OS Te Sra Di, PRR 6 Was going to patent or sell; but many have never bees sold or patented, and many owners of warrants and land became insolvent or are dead. Attempts to prove owner- ship of warrants surveyed and returned, but not claimed by any person, have occurred in cases fair and honest, and in cases not of that description; proof of who actually paid for a warrant, is among the most aneqguivocal evi- dence of membership, though not always conclusive. The dates appear wrong, but are easily understood when we understand the practice of the land office. The last part of the document, and the last of the applications for war- rants is dated 5th of April, and filed on that day in the office of the Secretary of the land office. Although it gave no right until the purchase money was paid to the Receiver-General, yet the practice was (I don’t say it was a good one), to give the warrant when it was issued some weeks or months after the date of the application, and the title to the land has turned on the proof of this fact. The paper offered was evidence.” Although the statute of Pennsylvania permits only one warrant to issue to the same person, yet, by the universal practice under the law, an individual may take out any number of warrants in the name of different persons,who are considered as merely nominal and_ trustees for him who pays for the warrants and has them executed. Huidekoper vs. Burrus, I Wash. C. C. R., 257. [t is not necessary to produce the deed poll, from the person in Whose name the application was made for a tract of land, in order to support the title of the plaintiff in an ejectment for the iand; the plaintiff having obtained the warrant and paid the purchase money. Willink vs. Miles, Peters C. C. R., 429. ete . Co - ® agama pitemerintencsnttmnmntitot te oe — ee . This court decided in Evans vs Patterson, 4 Wallace Rep., 224, Grier, Justice, as follows : “Pennsylvania, until late years, had no courts of equity. Hence, in an action of ejectment, the plaintiff might re- cover without showing a legal title. If he had a prior inchoate cr equitable title, either as a trustee or cestui que trust, he might reeover. The courts treated the appli- cant, or warrantee, as trustee tor the party who paid the purchase money, or paid even the surveying fees; for the purchase money, under the location or application sys- tem, was not paid at the time, and sometimes never. When the State succeeded to the title of the proprietors, the application system was abandoned, and warrants were granted on payment of the purchase money fur the num- ber of acres for which his warrant called. Ilence, where the claimant of the warrant was unable to show his deed poll, he might recover by showing that he paid the pur- chase money ; that the warrantee, whose name was used, wus therefore trustee for him.) And an ejectment might also be maintained in the name of the warrantee, although he had no beneficial! interest in the land and no know!l- edge of the institution of the suit. See Campbell vs. Gialbreath, 1 Watts, 78. and also Ross va. Barker, 5 Watts, 391, which was decided on the tithe now in question.” A warrant, since the Commonwealth succeeded to the titles of the proprietors, was not issued until the pur- chase was paid. The -emarks of the learned counsel on the other side, that the words ‘ rem.ch. of 168 D's” in the old purchase blotter, “mrans remainder of the purchase money was charged” and not paid, are not supported by authority or the practice of the Land Office. The con- tractions will bear no such meaning. They mean the re- mainder of the charge was 168 dollars. Written out, the 8 entry means: Dr. Ruston purchased 6 warrants of 400 acres each; amount of acres, 2,400; at 50 shillings per 100 acres; paid for in specie; whole charge 60 pounds. The fees were 60 shillings paid, and the remainder of the charge (or the purchase money) was 168 dollars. The entry in the old purchase blotter and the entries made at the same time on the old voucher, show the purchase money paid. The entry on the old voucher is: ‘“Genl. rec’t wrote,’ which means that the fees and purchase money were paid and a general receipt for both were given. The following decision will explain the prac- tive of the office at that period. Justice Washington, in Brown vs. Galloway, Peters, C. C. R., 291, said: “A warrant for land is, according to long and uniform practice, dated on the day the applica- tion is made for the land, although it 1s retained in the office until the purchase money is paid, when and not be- fore it issues to the party.” Same effect is Lewis vs. Meredith, 3 Wash, C. C. R., 81. It is an established rule of property in Pennsylvania, that the party who paid for the land was the owner of the warrant. This principle was established from reasons of policy and private justice. The deputy surveyor was restrained from surveying more than 400 acres to one per- son. The limit was 300 acres under the proprietary sys- tem. There was however no express limit to the amount one person might buy, and hence in the purchase of a large number of warrants, names of persons were used, often ficticious, and in the language of Justice Washing- ton, in Huidekoper vs. Burrus, 1 Wash., C. C. R., page 114, “whenever one person takes out many warrants, he bor- rows the names of certain persons, no matter who they are.” [t became a question very early to ascertain the owner- es 0 eae i be ov PD 9 ship of the warrant and this was ascertained by ascertain- ing who paid the purchase money. Often receipts were given with the number of warrants and acres, and when these were in existence they were sufficient. But time soon made this mode of proof, if it ever existed, impossi- ble. John Keble was chief clerk in the Receiver Gen- eral’s office, and he kept a book in which he entered every purchase with its number, date, who was the pur- chaser and Nos. of warrants, acres, andl who paid the pur- chase money. This from necessity was the only other ev- idence, and hence the courts resorted to it. In 1823 cer- tified copies were made evidence. Judge Huston, in his work on land titles in Pennsylvania, says of this Old Pur- chase Blotter: “Even on warrants where money was paid, there was sometimes difficulty as to who was the owner. The warrant being in a name different from that of the claimant on its face, proved nothing. Where the owner, When he took out his warrant, took a receipt for his purchase money and preserved it, this often decided the question of ownership, and it became usual for a plain- tiff to recover on such a receipt, without producing any conveyance from the person whose name was used in the warrant. But where the owner either took no receipt, or it was lost or mislaid, the ownership must be proved by other means. The common books of the land oflice charged the warrantee with the land and crelited him with the payment of the money. When it became neces- aary to pay money before you got the warrant, and while John Keble was chief clerk in the Receiver General's of- fice, he kept an account of who paid the money on every warrant sealed in that office. The entry, however, is not easily understood, except by those acquainted with the of- fice. Every application was numbered successively, as they were handed in, from one up to near twenty thou- sand. Some of these applications were for a single tract, / 10 and many tor more than one hundred, the last written on a single sheet of paper, or several sheets attached together. On each of these was marked the date when filed, and the | name of the man who paid the money always appeared. LA When you applied for a warrant, there were marks by which you could refer to and find the application, and trom the application and its number and date, you could find the entry in John Keble’s blotter, and there see who paid the purchase money. The right to many tracts has been ascertained by searching as here mentioned ;' and a copy of that blotter under seal of office, is now evidence in a court of justice, by a particular act of Assembly. So careful was John Keble that if the person who paid the money told him by whom it was sent, that also appeared in the blotter.” EN. Alt Mite oe The plaintiff below offered old purchase blotter (called application) No. 12969, for six tracts of land of four hun- dred acres each, among them is the Lewis Walker tract, described in the application as follows: Lewis Walker applies for four hundred acres of land lying one mile north a of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston’s other land in Catawissa township, Northumberland county. Each of the six tracts calls for Dr. Thomas Ruston’s other land, and contain evidence that the application was by and for Dr. Thomas Ruston. This evidence was followed by certified copy of old purchase blotter No. 12969. The entry is as follows: 12969. 1794. June 14, Dr. Ruston 6 wts. of 400 ea., amt. 2400 a 50 s pet. pd specie ch £60. Rectd fees 60 s. pd Rem. ch of 168 Ds. 11 This entry clearly shows that Dr. Ruston bought and paid for the six tracts of land for which warrants were granted on application No, 12969, at the rate of fifty shil- lings per hundred acres the price fixed by an Act of As- sembly of April 3, 1792. Surveys were made upon the warrants in the month of October and November, 1794, (see printed record, page 14,) and returned into the land office 23d of February, 1795. ‘The purchase money was paid by Dr. Ruston be- fore the warrants were issued, and the old blotter not only showed its payment, but the fees for issuing the same and accepting the return of the surveys. The practice in the land office in respect to the payment of the purchase money before the warrants would be issued, is stated by Huston on Land Titles, page 323, in the following language: “I have reason to believe,and do believe, that after the Ist day of September, 1769, no warrant was sent to a deputy surveyor until the purchase money had been paid. The warrant, when made out, was dated on the day the application for it was entered, although the war- rant itself was not filled up and signed and sealed until money was paid into the Receiver General's office.” The copy of the old purchase blotter duly certified, under the seal of the land office, was offered in evidence as a link in the chain of evidence to show title in Dr. Ruston, un- der whom the plaintiffs claim title to the land in suit. The question was not as to the weight to be given to the entries in the blotter, but was the record evidence for the purpose of showing title in Dr. Ruston. The paper came from the depository where we go for original titles to every acre of land in the State of Pennsylvania. Copies of the old purchase blotter are made evidence by Act of Legislature of the State for the purpose of showing who paid for lands, and as a consequence who bought from the 12 State, paid the State the price demanded, and in law, and fact who the owner of the land was at the very inception of the title. Certified copy of the entry would be evidence in any case, involving the ownership of the warrant, and it is always received even though it might not be very ma- terial, upon the ground that the entry by Keble was a part of the original transaction. As evidence of the fact as to who paid the purchase money, Judge Huston says in his land titles, page 336, “It seems then, to come to this that it is prima fa- cie evidence and conclusive unless rebutted.” Campbell vs. Galbreath, 1 Watts, 70, held that to es- tablish ownership of warrant competent to prove in eject- ment that they, under whom party claims, took it out of the office, put it in hands of Deputy Surveyor, employed chain carriers, procured survey to be made and paid ex- penses. This was admitted to show ownership of war- rants. Ejectment by the common ‘practice in Pennsylvania, where more than one warrant issues to one person, who is considered merely as a nominal person, the title being in him who pays the money to the office and obtains the warrant. James vs. Gordon, 1 Wash C. C. R., 338. The contention of the plaintiffs in error is that a war- rant, survey and return thereof and payment of the pur- chase money gives only an equitable title and that an ac- tion of ejectment cannot be sustained on such a title in the Circuit Court of the United States, because the law side of that court cannot take jurisdiction of any but le- gal titles. The court below thought differently and so ruled and it is no hard task to show by authority that that ruling was right. s a h Be t- ae } pe ‘a i AD i 1 a 4 . PO eee Se ek de se. PP. spotted re many manent nme ieie x 5 - = : = es a Z a oe 13 The doctrine of trust discussed by the plaintiffs in error, we have discussed under the Fifth Assignment of Error. We wil! say, however, i in passing that as Dr. Ruston paid the purchase money, took out the warrant, had the sur- vey made and returned, he had the legal title as to every one but the Commonwealth. His interest was a legal es- tate, not an equitable one. Lewis Walker, if ever such a person existed, was a mere nominal party. His name was simply borrowed. He was without any interest whatever, as the records of the land office disclosed. The title therefore to the warrant and survey did not vest in Lewis Walker, even nominally, but m Dr. Ruston. This i3 the doctrine established in Pennsylvania, and also by the United States Courts, as we will show hereafter. The act of 22 April, 1856, applies to technical trusts. Trustees exmaleficio, which Lewis Walker would be it he or those claiming under him attempted to deny his nominal condition are not within the statute nor within the principle sought to be applied by the plaintiff in error. It is true the general expression is often used that the warrantee holds in trust for the party w he paid the pur- chase money, but the expression in our decisions is not used in the sense as expressing a trust relation. What evidence is there that Lewis Walker ever knew that his name was used, or that Dr. Ruston paid with or without the approval of Walker? All this is mere as- sumption. As Lewis Walker never set up any claim, so far as the evidence shows, there is no presumption that there was a Lewis Walker in existence who had any knowledge of the fact. But if we assume that there was a Lewis Walker, and his name was used by Dr. Ruston by cousent, as the war- rantee, and if we further assume, as argued by the plain- I4 tiffs in error, that Lewis Walker was the trustee of the interest in the warrant for Dr. Ruston, who paid the pur- chase money, and therefore the real owner, it follows that Lewis Walker was a were naked trustee. The trust was «dry one; no control and no duty to perform by trustee, and under the Statute of 27 Henry VIII., commonly called the Statute of Uses, which is in ferce in Pennsy!]- vania, (see Roberts’ Dig. of British Statutes -412,) the trust was immediately stricken down and the use executed. thereby making Dr. Ruston the complete owner of the lands as well at law as in equity. 2 Blackstone, 333. Sprague vs. Woods, 4 W. & S., 192. Kay vs. Seotes, 1 Wright, 31. Bennett’s Appeal, 10 Wright, 393. Moore vs. Shultz, 1 Harris, 101. Perry on Trusts, 521. In Pennsylvania the trust is held te be completely executed by the statute and the legal estate and title is vested in the cestui que use ; and thata billin equity will not lie to enforce a conveyance by the cestui que use. Bush vs. Lewis, 9 Harria, 72. First. In Pennsylvania, in Duer vs. Boyd, 1 Sergeant snd Rawle, 210, the Supreme Court said : “For above fifty. vears past lands held by warrant and survey, without patents, have been considered as the legal estate in England, subject to the liens of judgments, cour- tesy, dower and other incidents of real property. Adapt- ing this principle to the premises in question, there can he no doubt that Joseph Sharp toek an estate tail under the will of James Sharp, his father, and that his son Joseph succeeded thereto per formam doni, the issue in tail not being barred by the conveyance to John Boyd. meee ° & ole “> bE AE OME , A ie Me Ca ‘Ma ‘A i Oe , Ladulsiethialla nding, oe por “ ‘Mla ti)? ld The plaintiff has therefore deduced a regular title under his deed regularly perfected, to bar the estate-tail (ac- cording to the provisions of the law on this subject) from Joseph Sharp the second. The patent granted by the secretary of the land office to Jonn Boyd on the 15th May, 1810, recites that the right of James Sharp under his warrant, “by virtue of sundry good conveyances be- came vested in the said John Boyd, which was not true in fact, and can have no operation on the plaintiff's claim, in derogation of the last will of the warrantee. In all such cases the right does not depend on who has obtained the patent, but to whom the patent ought to have been granted, according to the known laws and usages of the state. It cannot be endured for a moment, that the de- cision of the land officers upon a contested title can cun- clude the rights of litigant parties. The remedy by an appeal to the ordinary courts of justice is still open to them.” Warrant, survey, return and acceptance in the land of- tice vests a good title. | Lauman vs. Thomas, et. al., 4 Binney, 57. - 2 Descriptive warrant, followed up by a survey within- reasonable time, gives title from its date. _ | Fox vs. Lyon, 3 Casey, 9 Chambers va. Mifflin, 1 Penr. and Watts, 74. Bunting vs. Young, 5 W. & S., 188. Urket va. Coryell, [d., 60, where warrant obtained in 1793, on which pur- chase money was paid, surveys made next month, em- bracing land in dispute and returned to land office, and secepted in February, 1794, there can be no such thing as abandonment by which the title is lost. ‘Jones on land office titles of Pennsylvania, page 162, CLV. “In this point of view, then and as between the e 18 Land held under a special or descriptive warrant, may be levied upon and sold before survey. Lewis vs. Meredith, 3 Wash. C. C. R., 81. After application is made, it is expected that the ap- plicant will proceed with all reasonable speed to pay the purchase money, which being done, the warrant to the surveyor issues, but not before; and though it bears date as of the day of the application it is, in fact and in truth, a warrant of the day on which the money is paid. It is expected that he will, with all reasonable diligence, pro- ceed to perfect his title, by having a survey made. Lewis vs. Meredith, above 85. In Suydam vs. Williamson, 24 How., 427-435, “where _ the subject of the dispute is real property situated within a state, her laws exclusively govern in respect to the rights of the parties, the modes of the transfer, and the solemnities which should accompany them.” “The power to establish Federal Courts, and to endow them with a jurisdiction, affords no pretext for abrogat- ing any established law ot property, or for removing any obligation of her citizens to submit to the rule of the local sovereign. : “Where a contrary opinion to that expressed by this court has prevailed in the courts of a state, and become a rule of propriety there, this court, without re-examining their opinion, or making any attempt to account for or to reconcile the difference, will apply the rule adopted in such state, to the determination of controversies existing there.” In a controversy respecting the title to lands in a state this court will administer the law of the state in all re- 19 spects as if it were a court sitting there and reviewing the decree of an inferior court in that locality. Olcott vs. Bynum, 17 Wall., 44. Slaughter vs. Glenn, 8 Otto, 242. A title to lands can only be acquired and lost accord- ing to the laws of the state in which they are situate. Clark vs. Graham, 6 Wheaton. 577. It has been the uniform course of this court with re- spect to titles to real property, to apply the same rule that is applied by the state tribunals in like cases. Waring vs. Jackson, 1 Peters, 571. Davis vs. Mason, 1 Peters, 501. Gardner vs. Collins, 2 Peters, 85. Jackson vs. Chew, 12 Wheat., 153 In Hinde and Wife vs. Vattier, 5 Peters, 397, this court says: “There is no principle better established and more uniformly adhered to in this court, than that the Circuit Courts in deciding on titles to real property in the differ- ferent states, are bound to decide precisely as the state court ought todo. The rules of property and of evidence, whether derived from the adjudications of the judicial tribunals of the state, furnish the guides and rules of de- cision in those of the Union, in all cases in which they apply, where the constitution, treaties or statutes of the United States do not otherwise provide.” The second assignment of error is founded upon an ob- jection to the record and proceedings in the Orphans’ Court of Philadelphia county, by which proceedings the | estate and title of Nicholas Le Favre, in the Lewis Walker tract with others that he owned, was sold by his administrator and purchased by Joseph Brobst by deed, dated May 9th, 1837. The plaintiffs claimed the land in controversy under this sale. The objection was that the lien of the debts against the decedent was gone and as a consequence the Orphans’ Court had no jurisdiction to make the order of sale. (a) The Orphans’ Court is a court of record having a seal, and its judgments and decrees have all the conclusive force and effect that the law gives to the common law courts. Its judgments therefore in all matters where it has jurisdiction of the subject matter are final and con- clusive. MePherson vs. Cunliff, 11.8. & R., 422. Musselman’s Appeal, 15 Smith, 480. Hixey’s ex. vs. Lanning, 13 Wright, 146. One court cannot modify, disregard or set aside the judgments of another court of co-ordinate jurisdiction. ' Doyle vs. Commonwealth, 11 Outerbridge, 20. The objection to the record of the proceedings in the Orphans’ Court is fully answered by the Supreme Court of Pennsylvania, in the case of Iddings vs. Cairns, 2 Grant, 88, the case decided that a decree of the Orphans’ Court confirming a sale made under its order, for the pay- ment of debts is conclusive evidence that the title of the t | 21 decedent was legally transferred to the purchaser what- ioht of the heirs to examine its regu- collaterally questioned by those who not made fo the administrator returned a8 the purchaser: Nicholas Le Favre | the validity of the proces® which the plaintifis © | tained hi title. If the heirs of Nicholas Le Favre are content to let the proceedings remain unquestioned stran- y gers to his title must be content. | | Riland vs- Eckert, 11 Harris, 210- i Court of the several counties Of Pennsy!- made a court record by atatute. ‘The a ie _ The Orphans: vania 18 expressly u act of 29th March, 1832, (see 3. Brightly’ Purdon’s Di- ee ed ters within its jurisdiction sh vollaterally in any other court, but they shall be liable to re rersal or modification OF alteration on appeal to the Supreme Court as heret nafler directed. ' (pb) The act of 16 June, 1836, defines the jurisdiction 4 of the Orphans Court, Se: 19 of that act, (see 2, Bright- lv’s Purdon, pae® 1289, pl. 15.) he several Orphans Courts shall “The jurisdiction of t extend to and embrace” 22 II. “The removal and discharge of executors and ad- ministrators deriving their authority from the Register of their county, and the settlement of their respective ac- counts.” ) III. “The distribution of the assets and surplusage of the estates of decedents after such settlements, among ereditors and others interested.” IV. “The sale of real sitate of decedents.” The act of 29 March, 1832, provides, Sec. 20; see Brightly’s Purdon’s, page 581, Pl. 120. “Whenever it shall satisfactorily appear to the executor or administrator that the personal estate of the decedent is insufficient to pay all just debts and the expenses of the administrators, he shall proceed, without delay, in the manner provided by law, to seli under the directions of the Orphans’ Court, having jurisdiction of his accounts so much of: the real estate, as shall be necessary to supply the deficteney ; and such real estate so sold, shall not be liable in the hands of the purchaser for the debts of the decedent. Sec. 31, Purdon, 532, Pl. 121. The Orphans’ Court, which shall possess jurisdiction of the acconnts of an executor, administrator or guardian, shall have power to authorize a sale or mortgage of real estate by such execu- tor, administrator or guardian in the following case, viz: 1. On the application of the executor or administrator, setting forth that the personal estate of the decedent is insufficient for the payment of debts and maintenance and education of minors, or for the purpose of paying the debts alone.” 2. “On the application of such executor or administra- tor, or of any person interested, setting forth that on final “Rp a ae sattes q ~-— or ~a me ; _ ere " sas i | pane SNe een ale sO Pg eh SBT y eas. 3 - 7 AE Se, oy pod See tor ee ES eee . . vale Ro MS = xis : Be ta nal ‘ sy * —_ — - . - ; ae = * ~~. -. - ~> ne - rs oe ear wht cnet wt 23 settlement of the administrator’s account, it appears that there are not sufficient personal assets to pay the balance appearing to be due from the estate of such decedent either to the accountant or others.” Ibid, 32 Pl. 122. “When the real estate, with respect to which application shall be made to the Orphans’ Coart in the cases mentioned in the preceding section, is situated in the same county, the said court may order the sale or mortgage of such part or so much of such real estate as to them shall appear necessary ; when the real estate is situated in another county or counties, or in the same or in the same or another county or counties, and the Or- phans’ Court which possesses jurisdiction over the ac- counts of such administrator, executor or guardian, shall be satisfied of the propriety of a sale or mortgage of some portion of such real estate not within their jurisdiction, it shall be lawful fur such court to make a decree author izing such executor, administrator or guardian to raise so much money as the said court may think necessary, from real estate situated in such county or counties as they may designate, and thereupon it shall be the duty of the Or- phans’ Court of the county whereim the real estate so desig- nated is situated, upon the petition of such executor, ad- ininistrator or guardian, to make an order for the sale or mortgage, as they shall think expedient. of so much and such parts of such real estate as shall, in their opinion, be necessary to raise the specified sum; and such execu- tor, administrator or guardian shall in all cases make re- turn of his proceedings in relation to such sale or mort- gage, to the Orphans’ Court of the county in which the real estate so sold or mortgaged lies, when, if the same be approved by the court, it shall be confirmed.” These statutes give to the several Orphans’ Courts am- ple and express jurisdiction to decree the sale of real e+- 24 tate to pay debts of decedent where the executor or ad- ministrator has filed his account showing debts due to himself or others, and there are not sufficient personal as- sets, the court shall decree the sale of the real estate of the decedent. Wim. R. Smith, the administrator cum testamento an- nexo, 16 Jan., 1818, filed his final account in the Orphans’ Court, of Philadelphia, the place of residence of Nicholas Le Favre, at the time of his death, showing the disposi- tion of the personal estate, it being very small, and also the balances due to himself and others after the exhaust- ion of the personal assets. This account was confirmed absolutely. The accountant showing deficiency of assets and the amount of debts due by the estate to accountant is such a tinal settlement as is provided for in the 31 sec. of the act of 1832. Peter Rhoads’ estate, 3 Rawle, 435. And the confirmation of the account without appeal or review was conclusive upon everybody. Rhoads’ appeal, 3 Wright, 186. By the decree of the Orphans’ Court the amounts due to Wm. R. Smith and others were debts of record of the same degree as final judgments and of the same conclu- sive character, and such debts were not within the lan- guage or the spirit or meaning of the act of 1834, which is an act of limitation only. The debts, confirmed as such in the final accounts of the administrators were debts of record and no time less than would raise the presumption of payment could affect them, which is twenty-one years. The petition of the administrator asked for a sale for the payment of debts. The amount of debts were set out in the petition and otherwise the petition conformed to 25 all the requirements of the statutes. There is no question a3 to the jurisdiction of the court over the subject matter. This jurisdiction is expressly given by statute, and being within the jurisdiction of the court, the decrees of the court, are final and conclusive upon everybody. The only remedy is by appeal to the Supreme Court, within three years, or a bill of review within five years; and the cases cited by the other side show this and this necessarily must be so of all judgments and decrees of courts of record, and it is expressly so of the Orphans’ Court under the statute of 1832, which proves “that its proceedings and decrees shall not be reversed or avoided col- laterally.” As this was a sale for the paymentof debts of the decedent, the presumption follows of their existence in a live form, and such as are not barred by the statute of limitation. On this question, the case of Torrance va. Torrance, 53 Pa. St. R. 513 cited by the other side is decisive. The Supreme Court in that case said: “We are not unmindful that general jurisdiction over the sub- ject protects the decrees of the Orphans’ Court from being assailed collaterally. But this is not such a case. Had that application been to sell the testator’s estate for his own debts, their existence might be presumed.” Also, Dreisher vs. Allentown Water Company, 52 Pa. St. R. 229, Strong, Justice, said: “Orphans’ Court decrees are doubtless conclusive. They cannot be impeached collat- erally.”’ For a period of forty-five years this administrator's sale has remained unquestioned, and after that length of time only by strangers to Le Favre's title. No one interested has ever done so and strangers cannot. This title has been held and conveyed for large sums of money and heavy taxes paid upon the property by the respective owners on the faith ot this decree; more than time enough to pre- hi a ag . ail ee SAT “ast alltel ane . hae et. lt cates tl alls ay ng. Recgeass. a # ee. be Pre, ons SOs ia P ae . : bP aia %., § i nla) \Sonnontiyh gn naibteatiode sae ns ® m ~ a wm, wie ance & . . i , 27 land county by Wm. R. Smith, administrator, and con- firmed absolutely in April, 1837, by that court. This is strictly in accordance with the requirements of the act ot 29th March, 1832, Sec. 32, printed in full above, as fol- lows: “And such executor, administrator or guardian shall in all cases make returns by his proceediugs in relation to such sale or mortgage to the Orphans’ Court of the county in which the real estate so sold or mortgaged lies, when, if the same be confirmed by the Court, it shall be confirmed.” The course of proceeding under the Pennsylvania stat- utes for the sale of real estate by an executor or adminis- trator, situate in another county than that having juris- diction over the accounts of the executor or administrator is ag follows: 1. The petition must be presented to the court, (in this case to Orphans’ Court, of Philadelphia,) having juris- diction of his accounts for permission to sell or mortgage. 2. To present his petition to the court in which the land ig situate, asking authority to sell, which, if granted, und sale made, the return of the sule must be made to the Orphans’ Court where the land is situate and by this court confirmed. 8. Report to the court having jurisdiction of his ac- counts. This court has no control over the sale, can neither set aside nor confirm it. The report is for pur- poses of distribution only. We briefly notice the authorities cited on this point by the plaintiffs in error. Stoolfus vs. Jenkins, 8 8S. & R. 173, was a case in partition and that the husband of the daughter of an intestate cannot take the fee in right of his wife in partition, he has no greater interests in her share than in any other part of her estate, and the Orphans’ Court has not the right to award him the fee of her share. | 28 Dresher vs. Allentown Water Company, 52 Pa. St. R., 225, was an action of ejectment and decides that after the partition among the heirs the Orphans’ Court may sell the decedent’s real estate to pay the debts of decedent, such will prevail against the heirs title acquired by the proceedings in partition. : Torrance vs. Torrance, 52 Pa. St. R. 513 was where the court decided the petition for the sale, showed that the sale was not to pay debts, nor was it to pay a legacy, and the subject matter of petition was not within the jurisdic- tion of the Orphans’ Court, but if petition had set out that the sale was to pay debts, then the debts would be presumed to have existed and the proceedings and decree of sale conclusive and not assaiiable collaterally. Shorman vs. Farmers’ Bank, 5 W. & S. 373, that the debts of a decedent ceased to be a lien after five years, although in his lifetime he made a voluntary conveyance of it for the purpose of defrauding his creditors. York’s appeal, 17 W. N. C. 33, has no reference to the limitation under the axt of 1834, but under our statutes of six years’ -limitativa relating to all debts. The debt of Wm. R. Smith, being one of the debts for which the administrator's sale was made, was made a charge upon the land, and the statutes of 1834 had no application to it. Nicholas Le Favre’s will (printed evidence 18) contains the following: “I make asa part of my will that the debt due by me to Wim. R. Smith, Eaq., counsellor-at-law, of Huntingdontown, and the State of Pennsylvania, to whom my obligation can never be repaid, be first paid the debt due by me to him, at the time of my decease, out of the next sale or sales following thesame. [is generous hold- ing in times the worst was unbounden, and but that he is Fi RA age “ 0 wt ax es 2) RE tee Oe | Pag ee eee ne PP aS Sn Bt - . , y ; © dae ice lle dS ite MC BEEN ee iat A gaps app celi™ ne ee ene ee : VFO CP Ry, 29 rich as he is good, I would largely set him down in this, my will, however, as it is, I hereby will and order that on all sale or sales of my several properties in America that shall take place from and after my death, he shall be alluwed, and he 1s hereby authorized to deduct and retain per cent. from the gross amount of such sale or sales, and further per cent on the proceeds he shall remit in good and safe bills to my wife, etc.” | While the will was evidently drawn by the testator himself and not very precise in expression, it is evident that he subjected his real estate to the charge of his debt to Wm. R. Smith, and intended his administrator to have the power to sell. His will is “that the debt due by me to Wm. R. Smith shall be first paid out of the next sale following my ‘leath.” The language is much like the case of Alexander vs. McMurray, 8 Watts, 504, a leading case. The language there was “my just debts and the devisee’s hereinbefore made being first paid, it was held that this was a charge upon the land, and the divisee's did not take effect until after the debts were paid.” Also, Knecht’s Appeal, 71 Pa. St. R., 333. Steel vs. Henry, 9 Watts, 523. The statute of limitation has no application to a debt charged upon the lands or subjected to the payment of specific debts, as in this case. This was ruled in Quigley vs. Beatty, 4 Watts, 14. Third and fourth assignments: The third assignment was the offer of the defendants below to show that other land was assessed to Dr. Ruston for the purpose of showing that Dr. Ruston made no claim to the Lewis Walker tract in controversy. It was the duty of the Deputy Surveyor to return all un- seated land for taxation if the owner did not. If he knew who the owner was he might return it as his land, or he could return the name of the warrantee as owner, and in 1796 this was generally the practice. The Lewis Walker in controversy was returned and. assessments made upon it in the name ef the warrantee. The taxes were paid. How this could be explained by the return of other lands, not surveyed in one body and at the same time, but more than a year apart did not appear from the offer, nor does it now appear from the argument. If Dr. Ruston owned the land the return of the Deputy Surveyor of some other land would not defeat Dr. Ruston’s title—and vet, if the offer was for any purpose, it was for this. So as to the fourth assignment— When the Marshal sold the land in controversy he paid the taxes which had been assessed upon the Lewis Walker in controversy to John Boyd, the Treasurer of Northumberland county. This was offered to show payment of taxes upon the land. It was competent for that, and the taxes were paid upon the land as Dr. Ruston’s. No other tract in the warrantee name of Lewis Walker was sold by the Marshal, and hence what appeared upon the assessment books as to some other tract could not show that Dr. Ruston did not claim the Lewis Walker in controversy. These offers, being irrelevant and immaterial, were properly rejected. 31 The plaintiffs in error complain in their fifth and sixth assignments of error of the rejection of the patent to Peter Grahl, dated the 12th day of April, 1797, and also of the rejection of the recital contained in the patent. The only offer to connect Peter Grahl with Lewis Walker was by this recital. The original deed poll was wot offered and the conclusion is the plaintiffs in error did not have it, and as these deeds poll were as often made by the patentee as by the warrantee, and often right in the land office, such recital in u patent was never regarded in Pennsylvania as any evidence that such a deed ever existed, except as against a party claiming under the title ot the patentee by conveyance subsequent to the date of the patent. Hence the patent without the recital was not evidence, and the rule ot law, not only in Pennsylvania, but in the United States Courts is that recitals in a deed are not evidence against a stranger or one claiming by prior right to the date of the deed and the recital is not sufficient evidence of the deed recited so as to carry the date ot the recited conveyance back of the date of the deed containing the recital. The recital is evidence against u party claiming title under the deed by conveyance sub- sequent. The peculiar system of granting lands by the ommonwealth of Pennsylvania, has made it necessary to give effect to warrants, surveys and patents so as to reach the real merit of each case without regard to who may have the paper title. The whole body of the public lands in the State were sold between the years of 1792 and 1795, and generally in large number of warrants to speculators, but the State has continued ever since to grant warrants and survey lands already granted, surveyed, returned and patented. The reason is that no system of survey was adopted by which the land surveyed could be located detinitely by the officers in the land office, and therefore a Warrant was granted for any lands applied for, notwith- 32 standing a prior grant, and patent issued upon the second warrant. The State, therefore, has in most of the lands received pay twice and often three times, and two or more patents have been issued to different warrantees for the same land. And these are not merely exceptional cases. Hence, we have in Pennsylvaniaa system sui generis. The patent does not have the same force or character it has when issned-by the Government of the United States. It is not the question, “who has the patent, but who 1s en- titled to it?” The patent inures to the benefit of the owner, whoever he may be. It confirms the title of the owner, whoever he may be, without regard to the person to whom the patent was issued. The patent is but a confirmation ot the warrant and survey. If it embrace more land than_ is surveyed it is void for the excess as against a subsequent warrantee. Delaware and Hudson Canal Company vs. Dimock, 45 Penna. St. R., 393. A patent which embraces land not included in the sur- vey is void for the excess. ‘Kelly vs. Graham, 9 Watts, 116. Though a patent conveys the legal estate against the Commonwealth, it will not prevail over a prior estate by warrant and survey. Maclay vs. Work, 5 Binn, 154, € Sergt. and R., 118. Woods vs. Wilson, 37 Penna. St. R., 370. A patent enures to the benefit of the owner of the title, though issued to another Urket vs. Coryell, 5 W. & S., 60. Patent i is not notice of the equities of a prior owner of the settlement right. | Woods va. Wilson, 37 Penna. St. R., 379. 33 Patent does not locate the tract, but defines how much land the tract is to contain when located. Hagerty vs. Mathers, 31 Penna., 348. If a man wrongfully obtain a patent for land and pay the taxes, the real owners may recover it from him with- out reimbursing to him the costs of patenting and the taxes. Urket va. Coryell, 5 W. & S., 60. A patent is not operative against the rights of a third person existing before the issuing of the patent. He may show that his right is better than that of him who ob- tained the patent, and for that purpose may inquire into the prior title of the patentee, whether by warrant, sur- vey, settlement or otherwise, and show that his equitable title is better. Such patent may be impeached if tainted with fraud, procured by imposition, or in entire excess of the proceedings in which it is founded. Balliet vs. Bowman, 5 W. & S., 155. Smith vs. Vasbinder, 77 Pa. St. R., 130. A patent is but prima facia title against prior claim- ante, and that a purchaser without notice of prior title and for value from the patentee, is in this respect, is no better position than the patentee. Woods vs. Wilson, 1 Wright, 382. Lewis vs. Bradtord, 10 Watts, 76. Duer vs. Boyd, 18. & R., 203. Urket vs. Coryell, 5 W. & 3., 60. Maclay vs. Work, 5 Binney, 154- Gingrich ve. Foltz, 7 Harris, 40. In the United States,a patent issued by the United States, like the deed of an individual, is inoperative if the government never owned the property, or had pre- viously conveyed it, or had dedicated it to uses which a a 34 precluded its sale. But the validity of a patent of the United States Government to land cannot be assailed col- — laterally, because in issuing the patent the act in issuing the patent is judicial. Steel vs. St. Louis Smelting and Refining Company, 16 Otto, 447. In Pennsylvania, however, the officer in granting a patent acts ministerially, and not judicially, and their patent is only prima facia evidence of title. Burk vs. Seabold, 6 Serg. & Rawle, 140. The plaintiffs in error offered no evidence outside of the patent and its recitals to connect the patentee with the warrantee, Lewis Walker. The learned court below rejected the recitals because the right of Dr. Rustin com- menced with the vert inception of the title by payment. of the purchase money betore the warrant issued, and hence the recitals were not evidence against Dr. Ruston and those claiming under him. This question was ruled in Penrose vs. Griffiths, 4 Bin- ney, 231, a leading case in Pennsylvania, as follows: “The rule of law is that a deed (patent) containing a recital of another deed, is evidence of the recited deed, against the grantor and all persons claiming by title derived from him subsequently. What is the reason of this rule? It is this, the recital amounts to a confession of the party, and that confession is evidence against himself and those who stand in his place. But such confession can be no evi- dence against a stranger ; it can be no evidence against one who claims by title derived from the person making the confession, before the confession made, because he doex not stand in the place of the person making the confes- sion ; he claims paramount the confession. One who has conveyed his right can by no subsequent confession effect the right which he has conveyed. ts bar 38 33 To the same affect are the following cases, all involving patents : s Diggs vs. Downing, 4 Serg. & Rawle, 353. Smith vs. Webster, 2 Watts, 478. Lewia vs. Bradford, 10 Watts, 76. : Gingrich vs. Foltz, 7 Harris, 40.: Brock va. Savage, 10 Wright, 87. Green vs. Brennesholtz, 23, P. F. Smith, 426. The same rule prevails in this court. Marsh et al. vs. Brooks et_a!., 14 How., 513. Same vs. Same, 8 [low., 223. In this latter case it is ruled that the recitals when evi- dence, are not enough to show that the title is of an earlier date than the date of the patent, which bears date 12th April, 1797, six months after the lien of the judg- ment of Clayland for use, &¢., against Dr. Ruston in the Circuit Court of the United States, had attached to this land. The claim of deed poll from Lewis Walker to Peter Grahi, 27 November, 1793, is conclusively shown, by the decisions in another part of the argument, to have been impossible. The warrant was not issued until it was paid for, aud it was not paid for until 14 June, 1794, when Dr. Ruston paid for it, took it out and had it surveyed. If Lewis Walker did convey to Peter Grahl it was be- fore the Lewis Walker warrant had any existence, and if such a conveyance could have any effect at all, which we deny, then we say Peter Grahl had no better position than Lewis Walker. But no such conveyance was offered in evidence, and the plaintiffs in error relied upon the recital which was not evidence against Dr. Ruston. The letter of attorney from John Grahl to Peter Grahl was in the same position. No conveyance was offered 35 showing Lewis Walker’s right or Peter Grahl’s right vested in John Graul. So far as the evidence shows, John Grahl never had any right to this land, and of course, he could not convey any by letters of attorney or otherwise. Dr. Ruston’s title to the six tracts of land, of which Lewis Walker was one, was seized by the Marshal and sold in 1803 to Nicholas Le Favre, and the title was con- veyed from time to time until 1864, when R. N. Roth- bune, for the vonsideration of $250,000, became the owner — in trust for Dater, Fellows and others. . These owners or- ganized two coal companies. The Lewis Walker in con- troversy being a part of the Northumberland Coal Com- pany. In 1864 this company took actual possession of the lands embraced in the articles of incorporation, and began the improvement of them by the erection of a (lwelling house, and the opening of the coal in the tracts. The company expended about $50,000 upon the lands, and after about a year and a half suspended operations for the want of a railroad to enable them to transport the coal, but kept a tenant in the house until 1875, when the defendants entered upon the land, dispossessed the plain- tiffs’ tenant, and held the possession. Sce evidence 41, 42 and 43 pages printed record. This body of lands was assessed as early as 1796, and almost continuously there- after to the parties claiming under Dr. Ruston and the taxes paid by them, as the evidence in the case most clearly shows. For more than 80 years the burthen of taxation fell upon the owners of the Ruston title, and during all that time no claim was ever made under the Grawl pat- ent, no taxes paid, no possession taken and no claim of ownership made by the defendants. The old Purchase Blotter was offered for the purpose of showing title in Dr. Ruston to the Lewis Walker tract ; : —e Os “a4 x 37 not at the time of trial, but from the time the survey was made and returned to the land office until the seizure and eale of his title to Nicholas Le Favre, in 1803. Such being the case, it is very difficult to see what the doctrine: of Strimpfler vs. Roberts, 18 Pa. S., 283 and the act of 22 April, 1856, or any other act of limitation had to do with the admissability of the evidence. The case of Strimpfler vs. Roberts was a very different case from the case on trial, in all of its material features: In that case, the warrantee conveyed his title in 1801 to Cumberland Dugon, to whom the patent was issued for the Sophia Myer tract in 1802; the claimants under the warrantec had claimed the Jand for more than forty years without any assertion of a claim to the land by Peter Benson, who, through his grantees, claimed a tract by virtue of the payment of the purchase money. The learned Chief Justice says, on page 298 of that case: “Fifty-two years went around between the time when this purchase money was paid for this land and the bring- ing of the present suit. During all that time neither Benson nor his heirs, nor anybody else deriving title from him, made any claim to the land, nor paid taxes for it, nor exercised any act of ownership over it, nor manifested the least sign of consciousness that they had a title to it.” Again on page 299 of the same, no man, says Justice Sergeant, 2 Watts, 115, onght to be permitted to lie by while his rights can be fuirly investigated and justly de- termined until time has.involved them in uncertainty and obscurity, and then ask for an inquiry. Time will raise presumptions as conclusive for or against an original title as it will in other cases. The title of « warrantee is pre- sumed to have heen conveyed where no claim has been 38 made under it fora long time. 2 Binney, 468. It will be nuticed in this connection that the Ruston title was conveyed from one to another for a period of eighty years ‘before this suit was brought. Large sums of money were paid for it. Taxes were paid upon the lund by the claim- ants of that title and possession actually taken in‘?864, and continued for eleven years until interrupted by the de- fendants in 1875. During all that time neither Lewis Walker nor his heirs nor anybody else deriving title from him, made any claim to the land, nor paid taxes for it, nor exercised any act of ownership over it, nor manifested the least sign of consciousness that they had a title to it. Active claim of title to this land was made im the most authentic manner, in the only way that a claim of title ean be made to wild and uncultivated land, by the claimants under Dr. Ruston, for a period of time, three times as long as was required to raise the presumption of law so clearly stated in Strimphker and Roberts, that a eonveyance had been made by the warrantee to Ruston or those claiming under him. In Brock vs. Savage, 7 Casey, 410, it is said Wilson undoubtedly had a title to this land by paying the State for the warrants, and the question which the plaintiff has to meet is whether the Wilson title has been so continued and asserted by him, and those claiming under him, as to have maintained its validity, or acquired additional force as against the patentee. The land has always been under the control and management of those claiming under Wilson. They have always paid all the taxes assessed on it, kept agents to watch it against all intruders, redeemed sich parts of it as were at times sold for taxes from time to time, sold large portions of it, occupied and improved parts of it, had a controversy over forty years ago with «38 persons claiming a part of it under the patentees, and as a ' result thereof maintained their right and got releases for some thirty tracts and without any claim for any others being then set up by the patentees, and their title has not otherwise been opposed by the patentees until the bring- ing of this suit in 1855. The fact that this particular tract was by mistake dropped from the tax lists during a large portion of the time, has no effect upon the general question. When one man pays the purchase money to the State, and he and those claiming under him have the lands assessed, pay the taxes and exercise acta of control und ownership over them, patents taken out by the parties who made the application will inure to the benefit of him who paid the purchase money, although more than twenty-one years have elapsed since the patent issued. Possession to bar the claims of a patentee, or to raise the presumption of a conveyance by him to the party who has title by the payment of the purchase money to the State, for the warrants, need not be such possession as would give title to a trespasser under the statutes of lim- itation. A continued claim of ownership, payment of taxes and acts of assertion of title for thirty years, and now claimed by the patentee, will raise the presumption of au conveyance by the patentee to the claimants of the title who paid the State for the land. All the facts necessary to raise the presumption had been laid before the court and jury. They were clear, de- cisive and without controversy before the defendants of- fered the Graw] patent in evidence. As the case was pre- sented then on the facts and the law as held by the courta of the state, the patent was not evidence of title in Graw] or anyone who might claim under him. but it ennred to 49 the benefit of the plaintiffs’ title. The doctrines con- tended for is sustained by the following cases : Brock ys. Savage, 10 Wright, 83. Glass vs. Gilbert, 8 Smith, 266. Taylor vs. Dougherty, 1 W. &. Hasting vs. Wagner, 7 W. & 8., 205. Turner vs. Waterson, 4 W. & S., 172. Fox vs. Thompson, 7 Casey, 172. Smith vs. Webster, 2 Watts, 478. The officers of the Jand office had no right to grant the patent to anybody but Dr. Ruston or those claiming un- der him, as the evidence of Ruston’s ownership was con- tained in the books of their office. The patent was in fraud of Ruston’s rights, was void as against his title, and inured to his benefit. JOHN W. RYON, SAMUEL LINN, JAMES RYON, Attorneys tor Defendants in Error. DEFENDANTS’ HISTORY OF THE CASE. Supreme (Joart of the [jnited States. October Term, 1885, No. 399- «JANE HERRON axp CHARLES D. HERRON, ager HUSBAND, IN RIGHT OF SAID JANE; ELIZABETH B. JACKSON axy JOHN A. JACKSON, HER HUSBAND, IN RIGHT OF 81D EanizazeTu B.; CHARLESJ. TOWER asp R. M. CUMMINGS, Plaintiffs in Error, “> ve. PHILIP DATER, ano ELIZABETH L. FELLOWS. In Error to the Cireuit Court of the United States for the Western District of Pennsylvania. JOHN W. RYON, SAMUEL LINN, JAMES RYON, Attorneys tor Defendants in Error. Oe eS ee eee eT ee ee ee ee ee eee | Mandard Pub. Co., Padintiie. Pa. ’ e z i . - Me s - « » t ¢ - = “ 2 — a i a ~ . > si © * ~~ s « é€ ~ z= « au . © > + « : . . ree ec & . e - o atl = - . ‘ ‘ 2 ' . d ‘ x . H é ° « os - > - . BS e ee e '» bd 4 = ¢ ° =f > 2 » sd ~ - . « * - * ¢ € + {29 Sapreme (Jourt of the [[nited Ntates. ‘October Term, 1885, No. 399. JANE HERRON anp CHARLES D. HERRON, HER HUSBAND, IN RIGHT OF SAID JANE; ELIZABETH B. JACKSON anp JOHN A. JACKSON, HER HUSBAND, IN RIGHT OF SAID ExizaBetu B.; CHARLES J. TOWER AND R. M. CUMMINGS, Plaintiffs in Error, V8. PHILIP DATER, ann ELIZABETH L. FELLOWS, In Error to the Circuit Court of the United States for the | Western District of Pennsylvania. HISTORY OF THE CASE. This action of ejectment was brought by Philip Dater and Elizabeth L. Fellows against Jane Herron and others to recover a tract of land, situate in Mount Carmel town- ship, Northumberland county, containing 230 acres and being part of a tract of land surveyed on the 22nd of October, 1794, in pursuance of a warrant dated November 26th, 1798 granted by the Commonwealth of Pennsylvania to Lewis Walker. ; ” os First. In support of the plaintiffs’ title they introduced in evidence acertified copy of the application, as follows : “William Elliot applies for 400 acrea of land in a branch of Roaring Creek, adjoining Doctor Thomas Ruston’s land in Catawissa township, Northumberland county. Joseph Tyson applies for 400 acres of land lying one mile north of a road leading trom Reading to Sunbury, adjoin- ing Doctor Thomas Ruston’s other lands in Catawissa town- ship, Northumberland county. Lewis Walker applies for 400 acres of land lying one mile north of a road leading from Reading to Sunbury, adjoining Doctor Thomas Ruston’s other land in Catawissa township, Northumberland county. William Shannon applies for 400 acres of land lying one mile north of a road leading from Reading to Sunbury, adjoining other lands of Dr. Thomas Ruston, in Catawissa township, Northumberland county. January 10th, 1794, Nathaniel Brown 400 acres, adjoining land, the north of lands granted to Robert Irwin, Northumberland county, 50 P. C. Second. The application was followed by a certified copy of an old purchase voucher, No. 12,969, which reads as fol- lows: 26th November, 1793. Joseph Tyson, 400 acres, lying one mile north of a road leading from Reading to Sun-— bury, adjoining Dr. Thomas Ruston’s other lands in Northumberland county. William Elliot, 400 acres, situ- ate on a branch of Roaring Creek, adjoining Dr. Thomas Ruston’s other lands in Catawissa township, said county. Lewis Walker, 400 acres, lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston’s other lands in said county. William Shannon, 400 acres, lying one mile north of a road leading from Reading to Sunbury, adjoining Dr. Thomas Ruston’s other land in said county. Ebenezer Branham, 400 acres, ona branch of Roaring Creek, adjoining land of Dr. 3 Thomas Ruston, said county. Nathaniel Brown, 400 acres, on a branch of Roaring Creek, adjoining land of Dr. Thomas Ruston’s in said county. A. M. P. £60 in- terest from date thereof. A general receipt wrote. Third. Plaintiffs then offered in evidence a certified copy of the old purchase blotter, which reads as follows: “12969, June 14th, 1794. Dr. Ruston’s 6 wts of 400 ea amt 2400 A. 503 pct. pd specie ch £60. rect. dd fees 60s pd rem ch of 160 Ds.” These entries in the old purchase blotter were offered to show the payment of the purchase money upon the six tracts contained in the purchase voucher, by Dr. Thomas Ruston, and as a consequence his ownership of the Lewis Walker by virtue of the payment of the purchase money. Plaintiffs then introduced certified copy of warrant is- sued by the Commonwealth of Pennsylvania to Lewis Walker for 400 acress of land, as described in the appli- cation and voucher, bearing date the 26th of November, 1793, and followed the warrant by a certified copy of a survey made by the Deputy Surveyor of said district on the 22d day of October, 1794, in pursuance of said war- rant containing 371 acres and a quarter. The survey was followed by a certified copy of the returns made by Wil- liam Gray, the Deputy Surveyor, into the land office, showing that on the 23d of February, 1795, the survey of the Lewis Walker was returned to the land office and accepted. Warrants and surveys of the other five tracts were introduced in evidence in connection with the war- rant and survey of the Lewis Walker, being the same tracts of land which are mentioned in theapplication and purchase voucher. 4 Plaintiffs then exhibited exemplification of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, of a judgment of James Claylon for the use of John Gibson vs. Thomas Ruston, — No. 44, September Term, 1796. Judgment obtained 13th October, 1796, for £3735, 8 shillings and 44 pence. Upon this judgment a levy was made upon the Lewis Walker together with other lands of Dr. Ruston, and the same was sold to Nicholas Le Favre. Deed was made for the Lewis Walker tract by John Smith Marshall to Nicholas Le Favre, dated the 11th of October, 1803. The same deed included the Joseph Tyson, the William Elliot, the William Shannon and Nathaniel Brown tracts of land. Nicholas Le Favre died, having previously made his will, which was probated the 12th of August, 1815. Wil- liam R. Smith took out letters of administration with the will annexed, on the 15th of August, 1815. A schedule annexed to Nicholas Le Favre’s will shows that he claimed the Lewis Walker tract among other lands he owned in Pennsylvania. A copy of the will with the schedule an- nexed will be found from page 17 to 24 of printed record. In 1836 William R. Smith, the administrator of Nich- Olas LaFevre, petitioned the Orphans’ Court of Philadel- phia, that Court having jurisdiction of the accounts of the said administrator, for an order of sale to pay the debts of the said decedent. By further proceedings upon said application in the Orphans’ Court of Northumberland county, where a portion of the lands of Nicholas LaFevre were located a decree of sale was obtained and the William Elliot, the Lewis Walker, William Shannon, Nathaniel Brown ane another survey owned by LaFevre in the name ot Abraham Scott were sold on the 9th day of May, 1837 to Joseph Brobst, as the property of Nicholas Le Favre. 3 Deed made to Brobst for the said tracts of land and the sale was duly confirmed in Northumberland county where the lands were located according to the requirements of the Act uf Assembly. On the 9th of June, 1837, Joseph Brobst and Annie, his wife, conveyed to Hugh Bellas the five tracts of land which he had purchased at administrator’s sale as the property of Nicholas Le Favre, and on the first day of January, 1846, Hugh Bellas and his wife conveyed to Cornelius Garretson, the Lewis Walker, the William Elliot, William Shaneon and Nathaniel Brown tracts, four of the tracts of land which he had purchased from Brobst. On the 13th of February, 1849, Cornelius Garretson conveyed to Alexander Garretson one undivided half interest in said four tracts of land. Then on the 16th of April, 1864, the Lewis Walker, Willirm Elliot, William Shannon and Nathaniel Brown tracts were conveyed by Garretsons to Rollin N. Rathbun for the consideration of two hundred and fifty thousand dollars. On the first of day August, 1864, Rollin N. Rathbun, party of the first part, who held the title in trust, George A. Fellows, Philip Dater, Robert H. Rathbun, E. P. Wil- der and Robert Lockhart, parties of the second part, and The Columbia Coal Company, party of the third part, conveyed the eastern portion of these four tracta, con- taining 1,053 acres, embracing the Nathaniel Brown, William Shannon and the eastetn part of the Lewis Walker tract to the Columbia Coal Company. And a similar deed was made of the same date by Rollin N. Rathbun, party of the first purt, Elisha A. Packer, James M. Benedict, John E. Rathbun, Joseph 6 Colt and George B. Newton, parties of the second part, and The Northumberland Coal Company,party of the third part, conveyed the western part of these four tracts to The Northumberland Coal Company, containing 997 acres, and embracing the William Elliot and the western part of the Lewis Walker tract. Record of judgment was next offered of George A. Fellows against the Columbia Coal Company. The inquisition and seizure of this land, which included in Northumberland county that portion of the Lewis Walker in controversy in this case, sale had by the Sheriff to George A. Fellows and Lewis Dater. Deed by the Sheriff to Fellows and Dater, dated the 15th of March, 1872, for the lands in controversy. This was followed by proof of death of George A. Fellows, of his will devising all his property to Elizabeth L. Fellows, co-plaintiff in this suit with Philip Dater. By the Lawf of Pennsylvania taxes assessed upon wild and unimproved lands are made a lien upon the land. They are no personal charge against the owner, whoever he may be. The only compulsory mode of enforcing the payment of such taxes is by a sale of the land. In 1796 the Deputy Surveyor of Northumberland county returned to the Commissioners for taxation, in accordance with the provisions of the act of Assembly then existing, the William Elliot, opposite No. 753; 754 was Lewis Walker, warrantee, 371} acres- No, 755, William Shan- non, warrantee, 415 acres; No. 756, Nathaniel Brown, warrantee, 400 acres. This return by the Deputy Sur- veyor was followed by an assessment by the County Com- inissioners of Northumberland county, in the unseated land book of the Lewis Walker from 1796 to 1805 in- clusive. When the Marshall sold Dr. Ruston’s lands in 7 Northumberland county to Nicholas Le Favre, some of the taxes assessed upon the Lewis Walker remained un- paid, and out of the proceeds of the sale of Dr. Ruston’s . lands he paid $16.85 taxes. The unseated land books of Northumberland county showed assessment from 1805 to 1813 inclusive, of the William Elliot, the Nathaniel Brown, the Lewis Walker and the William Shannon to Nicholas Le Favre, as the owner of said warrants, and the taxes were regularly paid during those years upon those tracts of land. From 1886 to 1889 the said tracts of land were assessed in Shamokin township, Northum- berland county, and from 1840 to 1844 the William Shan- non, William Elliott and Lewis Walker were assessed in Cole township, in said county. From 1846 to 1851 the same tracts of land were assessed to Cornelius Garretson and the taxes paid. From 1852 to 1857 the same tracts of land were assessed to Cornelius Garretson and the taxes were paid. From 1858 to 1865 the same tracts of land were assessed to Cornelius Garretson and the taxes were marked paid. From 1865 to 1882 these lands were as- sessed to the Northumberland Coal Company ; that is, the William Elliot, the Lewis Walker and William Shan- non were assessed to the Northumberland Coal Company and the taxes were paid. In the statement of the case by the plaintiffs in error the remark is made that in the assessments from 1836 to 1846 the name of no owner was given and it does not appear that any taxes were paid. The evidence shows that in 1837 Hugh Bellas became the owner of these lands and held tne title until 1846 when he sold out to Garret- son. Mr. Bellas was a resident of Sunbury, Northumber- land county, a lawyer at that bar, perfectly familiar with the land laws and tax laws of Pennsylvania. If taxes remained unpaid upon unseated lands for two years it was 8 the imperative duty of the Treasurer to sell all such lands and if the record showed no sale of the lands and no abatement of the taxes the presumption is conclusive that the taxes were paid. It is not pretended that either Grahl or any one claiming under his fragmentary title ever paid any taxes upon these lands before Mr. Cum- mings surreptitiously got possession of the land in 1875. From 1796, when the lands were first assessed, d-wn to 1882, when this ejectment was brought, whenever these lands were assessed by the County Commissioners and charged with the payment of taxes, those taxes were paid by the parties claiming under the title of Doctor Ruston, all of which is very conclusively shown by the evidence in this case. It is proved without contradiction by the testimony of John E. Rathbun, pages 41 and 42 of the record in this case, that after the purchase of these lands in 1864, possession was immediately taken of the land, embraced in that purchase ; that a house and saw mill were erected upon the land and a corps of men were put at work to prove the coal veins ; tnat two other dwellings were par- tially constructed. At the time these claimants began work upon these lands in 1864 they were wild and unim- proved and there was no railroad nearer than three and one-half miles; that ‘they expended between forty and fifty thousand dollars upon the lands; that their opera- tions and expenditures continued for a period of one and one-half years Then they suspended work because they had no railroad facilities to handle coal. Isaac Lewis was left by them in charge of the property. Lewis was fol- lowed by Jonathan Hoover. Hoover was made the agent of these lands to look after them and take care of them and keep trespassers off. He put his son-in-law to live in : . t 9 the house upon the lands. Hoover died in 1872. William Griffith occupied the lands under these claimants for two or three years. Then they had William Hand to live there. Hand left in 1873 and they put Edward Davis in possession. Davis was living in the house when the defendants came there and by an arrangement with Davis the plaintiffs’ in error tenants got into possession. When the owners of the lands found out that the defendants had obtained a foothold upon the land they attempted to dis- possess them, but they retained the possession by force. Hence the necessity of this action of ejectment to dis possess them. It is a matter of no moment as bearing upon the fact of possession that the dwelling house built by plaintiffs was not upon the Lewis Walker tract. It was on the body of lands which we claimed under the purchase stated in this history of the case, and it is enough to show the actual possessian of every rod of land within the boundaries described in their conveyance. An occupation and improvement of any portion of the land within the baundaries of their title, gives to them actual possession of all the lands claimed by them. See Brock & Savage, Tth Casey, 412, and 10th Wright, 83. The defendants below offered copy of patent from the State to Peter Grahl, dated the 12th of April, 1797, tor the Lewis Walker tract surveyed in pursuance of his war- rant, dated November 26th, 1793. The patent recited that Lewis Walker, by deed dated November 27th, 1793, conveyed the Lewis Walker tract to Peter Grahl. It was objected by the plaintiffs below that the recital in the patent was not evidence against Dr. Ruston and those claiming under him, because his title began with the pur- chase of the warrants and payment of purchase money, 10 all of which have been shown, and as his title preceded the making of the patert, the recitals in it were not evi- dence. Without the recital in the patent there was noth- ing to connect Peter Grahl with the title to Lewis Wal- ker’s survey. In‘his hand such a patent was not worth quite as much as the parchment upon which it was writ- ten. It isa little remarkable too that as this warrant to Lewis Walker was an indescriptive one, and gave no title to anyone until it was actually surveyed upon the ground, and that survey made according to the evidence, on the 22d day of October, 1794, that there should be in this patent to Peter Grahl a recital of a deed made the 27th day of November, 1793, eleven months before the land was designated ; eleven months before there was any sur- vey under that warrant of any land. It is perfectly manifest that the recited deed in that patent could have contained no description of any land, and as the instrument recited was not presented, it is im- possible for anybody to say whether it resembled anything in heaven, in the earth or beneath the earth. This patent. was very properly rejected by the court. Its admission would have been immaterial as was its rejection, because under the uncontradicted evidence in the case if it had been evidence of any title in Peter Grahl, the court would have been obliged to charge the jury that the presump- tion of law was that the title under the patent vested in the claimants of the land under Dr. Ruston. The patent was again offered in connection with cer- tain disconnected fragments of claim of title. For in- stance, a power of attorney from John Grahl to Peter Grahl, dated the 4th of June, 1799, authorizing his at- torney in fact to grant, bargain and sell any lands that he [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1885_142%3A0. Public record. Not legal advice.