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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) online

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be presumed.

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

THIS was a writ of error to the District Court for the City and
County of Philadelphia, to remove the record of an action of tres-
pass quare clausum fregit, brought by William Albright, Samuel


[Naglee v. Albright.]

Albright by his committee William Albright, Michael Albright and
William Albright the younger, against Henry Naglee.

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

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

*0n the 28th of November 1798, Dewar sold to one r^nqo
McGurragh, who on the 2d of May 1800. sold to one Baker L
who on the 19th of September 1806, conveyed to Naglee, the

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

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

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

292 SUPREME COURT [Dee. Term,

[Naglee v. Albright.]

appeared from the deeds given in evidence, charged the jury in
substance as follows :

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

" 1. That the sheriff's deed not being recorded in the office for
the recording of deeds is void as against subsequent purchasers.
It was not necessary to record this deed (the sheriff's deed to
Michael Albright) in the office for the recording of deeds in order
to give notice. The record of the mortgage in that office and the
sciro facias upon the mortgage and the proceedings therein in the
Court of Common Pleas, gave legal notice to purchasers of the state
of the title. This objection is therefore without foundation,
fconon " *2. The defendant further objects that no proceedings
' were had by the plaintiffs or by Michael Albright (under
whom they claim) after the sheriff's deed to him, to get possession
of the land, and therefore the defendant contends that the legal
possession remained in those who held under the mortgagor. The
sheriff sells upon an execution only the defendant's right in the
property and the right of possession. If the defendant whose
property is sold upon execution be in possession at the time of the
sale, or if any one be in possession claiming under him by a title
subsequent to the mortgage, the law has provided a summary
method for getting possession. If a stranger be in the actual occu-
pancy at the time of the sale, the purchaser must bring an eject-
ment to get possession from him. But if no person was in actual
occupancy of the lot in question at the time of the sale under the
mortgage, it was not necessary to have recourse to any legal proceed-
ings, for no one having the actual occupancy who could be ejected
or dispossessed, the purchaser would have a perfect right to enter
upon the land and take the actual possession of it, after the execu-
tion and delivery of a deed to him by the sheriff. The purchaser
could not for such an entry and possession be indicted as for a forci-
ble entry or detainer, nor could he be dispossessed by an action of
ejectment brought by the defendant or any claiming under him.
Upon these several points therefore you will understand the law to
be, that if no person was in the actual occupancy of the lot at the
time of the sale under the mortgage to Michael Albright, it was
not necessary to have recourse to any legal proceedings to get the "
actual possession ; but Albright, the purchaser, had a right to enter
immediately under his deed. Yet it was not necessary for him
actually to enter in order to get such a possession. And if you
should find that neither Michael Albright nor the plaintiffs took
possession before the putting up of the fence by the defendant, the
plaintiffs cannot maintain this action. These observations bring us
to another question which has been raised, viz., whether the plain-
tiffs could enter after twenty-one years elapsed from the execution


[Naglee r. Albright.]

and delivery of the sheriff 's deed to Michael Albright. Before
answering this question, I will remark, with a view to another part
of the case, that if neither the plaintiffs nor their ancestor did
actually enter within twenty-one years, they could not have been
ousted or dispossessed during that time. It is very obvious that a
man cannot be deprived or dispossessed of that which he never had.
Upon this supposition there could be no adverse possession of the
defendant, originating in an ouster of the plaintiffs ; and if you
should be satisfied that Mr. Albright never entered during that
time, the evidence relied on to prove an ouster cannot be made use
of for that purpose.

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

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

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

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

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

294 SUPREME COURT [Dec. Term,

[Naglee . Albright.]

enter twenty-one years before the fencing of the lot, then the ques-
tion will arise, whether he was ousted by the defendant, and the
land occupied by the defendant. The only evidence you have to go
on in this part of the case, is the assessment of taxes and the pay-
ment of them by the defendant. This also is presumptive evi-
dence; the weight and value of which you are to consider. In
short, upon this part of the case, you must be satisfied of the
evidence of these facts, viz., that Albright, (the father of the plain-
tiffs), entered twenty-one years or more before the trespass com-
plained of, and that having so entered, the defendant entered upon
him, and occupied adversely to Mr. Albright, or the plaintiffs, dur-
ing twenty-one years before the trespass complained of. Both the
facts of entry and ouster depend upon presumptive evidence.

" 5. But suppose you should not find the facts to be that M.
Albright entered upon them twenty-one years before the trespass.
Then you will consider whether there was an actual adverse occu-
*2Q^1 P anc 7 D y ** ne defendant of the lot during twenty-one years
before any entry upon the land by the plaintiffs, and if you
find the facts to be so, then the plaintiffs cannot recover in this

" 6. If you should find, however, that the defendant did not
occupy in the manner supposed (under the last head), then the
only remaining question is

" 7. Whether the plaintiffs entered as owners at any time before
the trespass complained of. The only evidence upon this part of
the case is, the testimony of Mr. Condy. (Here the judge adverted
to the testimony, and then proceeded.) It is for you to say whether
this testimony proves the taking of possession. Having now gone
through the case as it has been presented, I will state to you briefly
and connectedly the points of inquiry.

" 1. Did the plaintiffs or Michael Albright ever enter actually
upon the lot under the sheriff's deed (18 April 1796). If you
find they did not, your verdict should be for the defendant.

"2. If you find that the plaintiffs or their father did enter, you
will then inquire at what time the entry was made, and having set-
tled that point you will then inquire,

" 3. Whether the defendant occupied the property adversely to
the plaintiffs twenty-one years, either before such entry or after it ;
and if you find that the defendant, or those under whom he claims
did so occupy it, you will find your verdict for the defendant.

" 4. But if you find that no actual entry was made till that
spoken of by Mr. Condy, and if you find that the lot was vacant
from the time of sale until that time that is, unoccupied by either
party, then you will find for the plaintiffs, and assess nominal

" I will add an observation upon the evidence. The testimony


[Naglee v. Albright.]

referring to the assessment and payment of taxes, has been admitted
merely as evidence bearing upon the fact of actual possession. You
are at liberty to draw such inferences from it, bearing upon the fact
of actual possession as in conscience you believe are just and reason-
able. The assessment and payment of taxes by the defendant, do
not, in point of law, constitute possession. They are only evi-
dence which a jury may take into consideration, with other circum-
stances of the case, in order to decide whether he actually had the

The defendants' counsel excepted to this charge, and the jury
having found for the plaintiffs, a writ of error was taken out, and
the following exceptions filed.

I. The court erred in rejecting evidence of the assessments in
the assessor's books, because they did not specifically describe the
property assessed.

II. Because the judge erred in charging the jury

*1. That the sheriff's deed acknowledged in open court r*n<\a
and entered upon the records of the court in the pro- *-
thonotary's office according to the practice, but not recorded
in the recorder's office in pursuance of the statute, was suffi-
cient notice as against subsequent purchasers without notice,
for a valuable consideration.

2. That there must have been an actual possession of land by
the defendant for twenty-one years, though claiming under
color of title, to enable him to defend himself in this action
under the statute of limitations.

3. That the assessment of land to the defendant and those
under whom he claims, and payment of taxes by them for
more than twenty-one years, was not such evidence that the
plaintiff was out of possession as to defeat him in this action.

4. That in order to defeat the plaintiff in this suit the defend-
ant must have proved an actual, visible, notorious and hos-
tile possession for twenty-one years by him or those under
whom he claims.

5. That a constructive possession by the plaintiff, unaccom-
panied by the payment of taxes, or any other exercise of
power over the land for more than twenty-one years, was
sufficient on re-entry to enable him to maintain trespass.

6. That though there was no evidence to show that the plain-
tiff had entered under the sheriff's deed in 1796, until 1822,
and though the defendant had paid taxes in the meantime,
they might find that the possession had been vacant, and
that the plaintiff's entry in 1822 re-invested him with the
actual possession.

7. That the statute of limitations runs only in favor of persons
actually on the land.

296 SUPREME COURT [Dec. Term,

[Naglee . Albright.]

8. That they might presume the plaintiff entered under his
deed, though there was no proof of it.

9. That they must find that the defendant had actual possession
of the land in order to protect himself under the statute of
limitations, and that the assessments and payments of taxes
by the defendant, and the non-payment of the taxes by the
plaintiff were admitted as bearing on the question of posses-
sion. But that they must find an actual possession by the
defendant, and if they could in conscience find that the defend-
ant was in the actual possession from that evidence, they
might do so.

Mr. Mcllvaine and Mr. Mallery, for the plaintiff in error.

1. The learned judge before whom the cause was tried below
ruled that it was not necessary that a sheriff's deed should be
recorded in the recorder's office, and told the jury that they might
presume that the sheriff's vendee entered into possession, although
there was no proof of any entry or possession. We allege that the
evidence negatived the idea of possession on the part of the plain-
*9Q71 ^ s ' *The on ty possession which the subject admitted of

" was proved to be in the defendant. In Miller v. Shaw, 7
S. & R. 134, Chief Justice Tilghman seems to consider an actual
entry by the sheriff as necessary. The act of assembly gives the
same effect to deeds of bargain and sale duly recorded, as to feoff-
ments. This deed, however, was not recorded as the act directs,
and therefore possession is not to be presumed. The act of 1705
merely says that on a sale under a levari facias, the land shall be
conveyed to the buyers. It is true that in Shrider's Lessee v.
Nargan, 1 Dall. 68, it is said that the registering of a sheriff's deed
in the prothonotary's office is a sufficient recording within the act ;
but the question in that case was the admissibility of the deed in
evidence, not of the effect of registering it as notice. The same
remark may be made of the dictum of Judge Yeates in McCormick
v. Meason, 1 S. & R. 96. The act of 1775 uses very broad
language : " All deeds and conveyances of and concerning any
lands, &c., or whereby the same may be any way affected in law or
equity, &c., shall be recorded in the office for recording deeds, &c.,
in the county where such lands, &c., are situate, within six months
after the execution of such deed," &c. There is no act of assembly
authorizing an abstract by the prothonotary to be entered. Sup-
pose the prothonotary to neglect entering the abstract, would the
title be affected ? In Lodge v. Berrier, 16 S. & R. 297, it was
held, that the minute of the prothonotary of the acknowledgment
of a deed by the sheriff is not evidence to prove the deed, if the
non-production of it is not accounted for.

2. The judge charged that they must find that the defendant has


[Naglee . Albright.]

actual possession of the land in order to protect himself under the
statute of limitations, &c. Now this was a vacant unenclosed lot
on the commons, during the greater part of the time previous to
the ejectment; and it was not pretended that there was actual occu-
pancy on either side. The English common law is doubtless with
the charge of the court. There actual occupancy is necessary to
maintain trespass and to give the benefit of the statute of limita-
tions. 1 Bac. Ab. tit. Trespass ; 3 Levinz 209 ; 2 Hayes Con-
veyancing 402. In Miller v. Shaw, 7 S. & R. 134, Chief Justice
Tilghman said that the law of possession is not quite the same in
countries long settled and thickly inhabited, as in this state. In
Royer v. Benlow, 10 S. & R. 303, payment of taxes was held to be
evidence of possession. So in Read v. Goodyear, 17 S. & R. 350 ;
and McCall v. Neely, 3 Watts 69. In Sergeant's Land Law, p.
223, it is said that " payment of taxes for twenty-one years and
upwards may be tantamount to adverse possession, and make a title
good by the statute of limitations, which otherwise would be invalid,
where the owner has lain by and not paid taxes, or pursued his
claim." The rule with respect to vacant town lots is the same as
that which has been laid down respecting unseated lands. McLelland
*. McCalmont, 3 P. & W. 106. In Mackentile v. Savoy,
17 S. & R. 109, very slight evidence of ownership was
considered sufficient in the case of a vacant city lot.

No counsel appeared on behalf of the defendants in error.

The opinion of the court was delivered by

SERGEANT, J. The points of law arising in this case may be
more conveniently considered as they have been argued in this
court, than by taking up one by one the numerous subdivisions
in which they present themselves in the defendants' specification
of errors.

1. It is insisted that the court ought to have instructed the jury,
that the sheriff's deed not being recorded in the office for the record-
ing of deeds, is void and insufficient as against subsequent pur-
chasers. But it has always been held in the case of sheriif 's deeds,
that their acknowledgment in open court, and the minute taken of
them of record by the prothonotary, is a sufficient recording within
our recording acts ; differing in this respect from other deeds and
conveyances, which may be acknowledged before a judge, justice,
or other officer, and must be recorded in the recorder's office of the
proper county. This distinction has existed in Pennsylvania ever
since the passage of the act of 1705, relative to executions, and the
act of 1715 establishing a recorder's office and sheriff's deeds have,
it is believed, been rarely recorded in the latter. It is true that
this may be an inconvenience to purchasers and others, in examin-

298 SUPREME COURT [Dec. Term,

[Naglee v. Albright.]

ing titles ; but they have the opportunity of ascertaining sheriff's
conveyances, by resorting to the minute books of the courts, in
which an abstract of the contents of sheriff's deeds acknowledged
there, is regularly kept, and a copy of which is evidence after show-
ing the loss of the original. The point was expressly determined
as long ago as the year 1782, in Shrider v. Nargan, 1 Dall. 68,
where the objection was made, that a sheriff's deed of the sale of
lands under a writ of venditioni exponas, not being recorded in the
rolls' office according to the act of assembly of 1775, could not be
read in evidence, but it was not allowed, because, says McKean, C.
J., it was acknowledged in court ; and the registering it in the
prothonotary's office, as is always done, is a sufficient recording
within the act. This decision has never been contradicted, but the
usage has been in accordance with it, and the decision is recog-
nised as late as 1814 by Judge Yeates, in McCormick v. Meason,
1 S. & R. 96, who said it had been determined that an acknowledg-
ment by the sheriff in open court, and a minute of this on the
record, was equivalent to recording, and that this was before he
came upon the bench. The point certainly ought now to be con-
sidered as beyond dispute.

2. It is urged that trespass quare clausum fregit cannot be main-
tained without actual entry by the sheriff's vendee, and that,
*2Q C T1 * a lthough the court directed the jury that it was necessary
J for the plaintiffs actually to enter in order to get possession,
and that if neither they nor their father under whom they claim
ever took possession before the putting up of the fence by the
defendant, the plaintiffs cannot maintain this action, yet they erred
in leaving it to the jury to presume in the absence of any express
evidence of the fact, that the father did enter by virtue of his
sheriff's deed dated in 1796. What was the legal effect of this
sheriff 's deed to Michael Albright in vesting the possession of the
lot in him either by its own efficiency, or by virtue of and pre-
sumption of entry under it into a lot supposed at that time and
long after to be vacant, was a question undoubtedly very material
in the determination of this action of trespass. It seems to be
rightly admitted by the counsel for the plaintiff in error that if this
had been an ordinary conveyance which had been duly recorded in
the recorder's office agreeably to the provisions of recording acts,
then it would have transferred to the grantee not only the complete
title, but also the actual possession, if the lot were at that time
vacant. For by the act of 1715, " all deeds and conveyances made
or to be made and proved or acknowledged and recorded, &c., shall
be of the same force and effect here for the giving possession and
seisin, and making good the title and assurance of the said land and
tenements and hereditaments as deeds of feoffment with livery
and seisin, or deeds enrolled in any of the King's Court at West


[Naglee . Albright.]

minster are or shall be in the kingdom of Great Britain." But it
is contended that these acts do not apply to sheriff's deeds, which
are provided for by an earlier act of assembly (1705) and are dif-
ferently acknowledged "and recorded. I am inclined however to
think, that where the land or lot sold by the sheriff is vacant there
is no such distinction in the effect of a sheriff's deed and that of
another person, and that whatever differences there may be in the
phraseology or dates of the acts of assembly or the modes of acknowl-
edging and recording deeds, a sheriff's deed conveys not only the
title of the defendant but also the actual possession to the purchaser,
in case there is no other possession at the time, either in the defend-
ant or any other person, in the same manner and as fully as an
ordinary deed. I can see no reason under the law and practice of
Pennsylvania, why a sheriff 's deed should be more limited in its
effect than an ordinary deed, and why it should in all cases require
an actual entry to give possession, though it is not necessary in

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) → online text (page 34 of 74)