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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 4) online

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tor of the company, entered an appeal, made the oath and gave
the recognizance with security which the law required. A rule
was granted to show cause why the appeal should not be stricken
off for the following reasons: 1. Because the oath was not made
by the president or other chief officer of the corporation. 2. Be-
cause the corporation w r as not in the recognizance by itself, its
agent or attorney.

The court below was of opinion that the appeal could not be
sustained, and struck it off.

Stewart and Banks, for the plaintiff in error, referred to the Act
of Assembly of the l&th of June 1836, tit. "Execution," sees. 43,
44, which authorizes the appointment of a sequestrator, and de-
fines his powers; and cited 8 Serg. fy Rawle 517; 8 Watts 318.

Foster, for defendant in error. The right of appeal by a cor-
poration, and the mode of entering it, are particularly defined by
the Act of 22d of March 1817, and nothing short of a compliance
with that law will sustain the appeal.

PER CURIAM. The statute gives a sequestrator the powers of
trustees under the Insolvent Acts; and these are authorized to
compound, set-off or carry on actions in behalf of the insolvent.
Surely this includes the right of appeal.

Judgment reversed and a procedendo awarded,
iv. z*

294 SUPREME COURT [Pittsburgh

Orr against Cunningham.

The superintendence and payment of the expenses of the execution of a war-
rant are presumptive evidence of ownership ; but it may be rebutted by proof of
the actual ownership, and then the execution of it will enure to the benefit of the
real owner.

A title may be lost by abandonment; and if so, it falls back to the State ; but
is never thereby transferred to an adverse claimant. Nor can a stranger who dis-
covers another's unsatisfied warrant in the hands of the deputy-surveyor, or else-
where, after any lapse of time from its date, assume the ownership of it, and
have it surveyed for himself.

The right to redeem land sold at treasurer's sale is exclusively in the owner :
but if actually redeemed by another, it will enure to the benefit of the owner, and
vest no title in him who redeems it, although he may have been a claimant of
the land at the time.

A defendant in ejectment, who is in actual possession, claiming title by war-
rant and survey, is not entitled to compensation for improvements made upon the
land, by reason of his having purchased a treasurer's title, which he had previ-
ously annulled by redemption.

ERROR to the Common Pleas of Jefferson county.

Robert Orr against Robert Cunningham and others. This was
an action of ejectment for 1030 acres of land. The plaintiff gave in
evidence a warrant for 1000 acres of land to John Nicholson,
dated the 30th of August 1793, a survey made the 1st of Septem-
ber 1819, and returned 7th of December 1819 ; and deduced this
title by a regular chain down to himself.

The defendants claimed under the same warrant and survey,
which they showed was made by Alexander Taylor "for James
E. Cooper, in right of John Nicholson," and a patent from the
Commonwealth for the land in the survey, dated the 19th of Feb-
ruary 1836.

The defendants then gave in evidence a regular assessment of
the land, as unseated for the year 1822, in the name of "John
Nicholson or James Cooper," and a sale of it by the treasurer,
and a deed from him to Samuel Newcomb, dated the 28th of De-
cember 1826; and a deed from Samuel Newcomb to James E.
Cooper, dated 8th of February 1827, and acknowledged the 18th
of September 1839; and a deed from James E. Cooper to the de-
fendants, dated the 22d of May 1839. The defendants then proved
that the improvements made upon the land by them were of the
value of $3675.

The plaintiff then called William P. Brady, who testified, in
substance, that he was the deputy-surveyor for the district in
which this land was in 1793; that the warrant was given to him
by Thomas Grant, who was the agent of John Nicholson, to be

Sept. 1842.] OF PENNSYLVANIA. 295

[Orr v. Cunningham.]

executed; that it remained in his hands unexecuted until 1802,
when Thomas Grant and Henry Vanderslice called upon him, and
Vanderslice, who was then sheriff of Northumberland county,
said he wanted to levy on the warrant ; he did levy on it, and took
it away. About six months afterwards, Thomas Grant returned
the warrant to him, and it remained in his possession until the
year 1819, when he transferred it to James E. Cooper, without
any authority, and handed it over to Alexander Taylor, who was
his successor, as deputy-survey er of the district. On his cross-
examination he said, that there were a number of other warrants
handed to him to be executed, in 1793, by Thomas Grant, at the
same time with the one in question, and that Grant was interest-
ed in some of them but not this one.

The plaintiff then gave in evidence the treasurer's sale-book of
Jefferson county, showing the sale of the land to Samuel New-
comb, and the redemption of it on the 3d of October 1827 by
James E. Cooper ; and then called Samuel Newcomb as a wit-
ness, who testified : " The same fall I purchased, or sometime that
winter, I met with Mr Cooper. He spoke to me about this land ;
said Mr Brady had told him I had purchased it at treasurer's sale ;
he wanted a line from me to the treasurer that I had received my
pay. I owed Mr Cooper a couple of dollars that was deducted
out, and I gave him a line to the treasurer to receive the remain-
der. We had some talk about the deed ; he considered it of no
value, but said it was to be his property. I considered the deed
of no value to me but what it cost me. A short time after, he
wanted me to send the deed or leave it at Esquire Bell's. It was
not sent, and lay in my possession till 1839, or the beginning of
1840, when he received the deed from me, with the transfer that
is now on it ; and made me satisfaction for the same. It was made
at the date of the acknowledgment, but I had agreed to let him
have the deed long before, in 1827. The treasurer paid over the
money to me according to the line I had given Mr Cooper ; the
account was deducted out and the treasurer paid me the balance.
It was agreed that we would date the transfer about the time that
I had agreed to give him the deed. It was written and executed
the day it was acknowledged before Judge Winslow. It was not
mentioned at our first conversation that I was to convey. It was
afterwards that we talked of the deed, at the second conversation.
I agreed to transfer the deed to him ; he gave me the price of the
deed, and a dress for my wife. I did not consider I had received
the amount before. The reason I did not leave the deed at Esquire
Bell's was, because I did not consider I had been paid all out, and
wished to give it to himself so I could get the balance."

The court below charged the jury that the time which had
elapsed between the date of the warrant and the survey for Coop-
er, without any intervening act in prosecution of the title by the
warrantee, raised a presumption that the warrant was Cooper's

296 SUPREME COURT [Pittsburgh

[Orr v. Cunningham.]

property when the survey was made for him ; and that this pre-
sumption was not rebutted by the facts proved by William P.
Brady, the deputy-surveyor. That whether the treasurer's title
was conveyed to Cooper, was a matter of fact to be determined
by the jury; and that upon that fact depended the question whe-
ther the defendants were entitled to compensation for their im-
provements. The jury found a verdict for the defendants.

Buffington, for plaintiff in error, argued that Cooper never ac-
quired any valid title to the warrant ; the testimony showed con-
clusively that the original title of the warrantee was vested in
the plaintiff. The survey in 1819 enured to the benefit of the
owner of the warrant. The sale by the treasurer was annulled
by the redemption; for although Cooper had not such title as
would enable him to redeem, yet if he did redeem the land in fact,
and the purchaser agreed to it by receiving the redemption money,
it is binding upon him, and defeats his title. His subsequent con-
veyance of his title was a nullity. 10 Peters 1 ; 9 Watts 98.

Foster, contra, contended that he who superintended and paid
the expenses of locating a warrant, was presumed to be the owner
of it. Besides, the great lapse of time from the date of the war-
rant to the time of its location, justified the court in referring the
question to the jury, whether he had not purchased the warrant ;
especially when it was proved that it was delivered to William P.
Brady a long time after he went out of office, and consequently,
not for the purpose of having it executed. 2 Binn. 55 ; 1 Yeates
164; 2 Yeates 318; 17 Serg. fy Rawle 350. But if Cooper was not
the owner of the warrant, he had no right to redeem, and conse-
quently the title remained in the purchaser at sheriff's sale, which
was sufficient to defeat the plaintiff's action. 2 Watts 436. Cooper
was the purchaser of the treasurer's title.

The opinion of the Court was delivered by

GIBSON, C. J. It is not alleged that the defendants are entitled
by the Statute of Limitations ; but the court charged that the time
which had run between the date of the warrant and the survey
for Cooper, without an intervening act in prosecution of the title
by the warrantee, raised a presumption that the warrant was
Cooper's property when the survey was made for him ; and that
this presumption was not rebutted by the facts sworn to by Brady,
the deputy-surveyor.

To state those facts, is to decide the point. The warrant was
issued to Nicholson, in 1793; the survey was made on it at the
instance of Cooper, in 1819 ; and as superintendence, with pay-
ment of fees, has been deemed presumptive evidence of ownership,
there was perhaps a legal presumption that Nicholson was, from
the first, a trustee for Cooper. But the survey raised no presump-

Sept. 1842.] OF PENNSYLVANIA. 297

[Orr v. Cunningham.]

tion of a conveyance from Nicholson, granting him to have been
the owner of the warrant in the first instance. In Galloway v.
Ogle, (2 Binn. 463), a claim set up to a warrant and survey in the
name of another, and persisted in without contradiction for 30
years, was held, in the absence of a transfer by the warrantee to
any one else, to be presumptive evidence that his title was vested
in the claimant by a deed since lost. In the present case, Cooper's
claim was set up in 1819, and had been persisted in at the suing
out of the writ in 1839, for less than 21 years. The time neces-
sary to raise a presumption which acts on an interest in land, has
been eventually reduced to the standard of the Statute of Limita-
tions ; and measured even by that, the time in this instance would
be too short. Length of time, however, is not indispensable to the
presumption of a trust ; and the survey procured by Cooper at his
own expense, raised a presumption, in the first instance, that he
was the original owner of the warrant. But this presumption,
though a legal one, and such as a jury is bound to entertain, was
open to disproof; and what did Brady, the deputy-surveyor, testify
in respect to it ? He stated that this warrant and several others,
were put into his hands for location, by John Barren, in the pres-
ence of Thomas Grant, who was interested in the warrants with
Morris and Nicholson, but who ceased to have an interest in this
particular one when they came to be divided. It was delivered
to him in 1793, and remained unexecuted in his office till 1799, when
he was superseded; and, though an official paper, it was not
handed over to his successor. It was, with others, demanded by
the sheriff of Northumberland county, in 1802; subjected to the
form of a levy and sale on execution ; and handed back to the
witness a proceeding which was declared by this court, on another
occasion, to have been utterly void. The warrant then remained
in the custody of the witness till 1819, when he sold it to Cooper,
without colour of right in himself or pretence of authority from
another. What then becomes of the presumption of Cooper's
ownership ? A warrant is not an article of merchandise ; neither
have we market overt for it. Brady's want of title appeared on
the face of the instrument, which was notoriously an office paper ;
and it is a familiar principle, that the purchaser of an imperfect
title must stand or fall by the case of him from whom he had it.
Yet the court charged that the facts did not rebut the presumption
of Cooper's ownership.

How then can the title have passed from the warrantee and
those beneficially interested with him? By abandonment, say the
defendants, for forty years. A title may certainly be lost by aban-
donment ; but this is the first time we have heard it suggested that
it may at the same time be transferred to an adverse claimant, or
picked up by the first person who finds it. It falls back to the
State, and, by its extinction, sometimes makes a younger, but con-
flicting title, good ; but here there was no such conflict, for both
iv. 38

298 SUPREME COURT [Pittsburgh

[Orr v. Cunningham.]

parties claim in the same right, and the point is to determine
which of them is the owner of it. Where there is no race for pri-
ority of appropriation, an owner may suffer his warrant to rest
unexecuted in the office of the deputy-surveyor, without prejudice,
for an indefinite time ; and even where there is such a race, he
forfeits no more by delay than his right to be served before his
juniors. His loss of priority may doubtless cost him the land, but
not his warrant ; for the contest in such a case is between the
owners of separate titles, neither of whom can appropriate his
adversary's title to himself. Nor can a stranger who discovers
another's unsatisfied warrant in the hands of a deputy-surveyor,
assume the ownership of it, and have it surveyed for himself. How
great soever the supineness of the warrantee, it can be taken
advantage of only by the State or its grantee, and not by an inter-
meddler. In this case the survey, being a lawful act, was not
void ; and it necessarily enured to the owners of the warrant.

We have before us, then, the case of a warrant put into the
hands of the deputy-surveyor in 1793, without further prosecution
of the title till 1819 ; an unauthorized sale of the warrant, and a
survey for the purchaser in that year. This is the case presented
by the record ; and the most dexterous manipulation of it must fail
to work it into the effigy of a title in the surreptitious purchaser.

The subsequent sale for taxes would have transferred the right,
had not the land been redeemed. But the act of redemption is
impugned on the ground that Cooper had no right to perform it :
and the argument presents this dilemma: if he was not the owner,
it is said, redemption by him was void, and the tax sale stands
good ; but if he was in fact the owner, the plaintiff has no right to

The right to redeem was given exclusively to the owner of the
land when it was sold, to guard the purchaser from the officious-
ness of strangers ; but when the purchaser himself has ratified an
unauthorized act of redemption, who can be admitted to object to
it ? Certainly not the person who performed it. The party for
whose protection the provision was intended, may waive the benefit
of it when he thinks proper. Cooper doubtless did not consider
himself a stranger, nor did he mean to redeem for the advantage
of any one but himself; yet he could not assign to the act less
effect than the law gave it. The decisions have gone on the letter
of the statute, that a tender by one who has not an interest in the
land, may be rejected ; but here it was accepted. It is proper that
the act of an intermeddler should not be suffered to devest a title ;
but where the purchaser elects to take what the law allows him,
either from a friend or an antagonist of the owner, it would be a
fraud in him afterwards to dispute it. Here he does not dis-
pute it. His purchase is claimed under the very person who paid
the taxes and costs into the treasury expressly to defeat it. Had
there been a surplus bond, it would have been cancelled or deli-

Sept. 1842.] OF PENNSYLVANIA. 299

[Orr v. Cunningham.]

vered up, and the treasurer's deed would, beyond dispute, have
been avoided ; yet this effect would have been produced by the
intervention of one who was neither owner nor agent, but an
antagonist claimant ; and there cannot be one rule where there has
been a surplus bond, and another where there has been none.
Why should not such a claimant be allowed to redeem for the
party eventually entitled, even without the concurrence of the
purchaser ? It is not the business of the treasurer to determine
between conflicting pretensions to the right ; and where he has
received the tender of the one claimant, what is the other to do ?
He also may doubtless tender; but as the treasurer has no
authority to receive, in the whole, more than the taxes and costs
with the additional twenty-five per cent., it would be nugatory to

f) through the form of a tender that would be inevitably rejected.
ex neminem cogit ad vana sen inutilia. On the principle by
which a patent enures to him who has the right, I would say that
a tender by either of two adverse claimants might enure to the
true owner, even without acceptance of it ; but where the money
is taken, and the purchase given up, there cannot be a doubt that
the parties are remitted to their former rights.

This principle disposes also of the claim of compensation for
improvements. The defendants appear, not in the place of a pur-
chaser at the treasurer's sale, but as claimants of a title paramount,
under one by whom the sale was annulled. If the title by the sale
were still in force, they would have a right, not to compensation
for improvements, but to the improvements themselves. It was a
blunder in Cooper to avoid the deed instead of leaving it in force
and taking an assignment of it ; for had he given the transaction
the form of a purchase from the treasurer's vendee, he would have
had the plaintiff's title in addition to his own. The matter seemed
at first susceptible of that construction ; but all its features except
the assignment, appear, on closer examination, to be decisively those
of redemption. The payment of the money into the treasury, and
the memorandum of tender on the list of sales, indicate the true
nature of the transaction too clearly to let it pass for a purchase.
The object of consulting the vendee at all, seems to have been no
other than to obtain his consent to a deduction of his debt to
Cooper from the redemption money. Cooper considered the trea-
surer's deed so worthless, that he did not desire at first to have it
delivered up; and though he afterwards insisted on it, the assign-
ment of it operated no further than to transfer an exploded assur-
ance. By giving the transaction that shape, he rejected the healing
influence of a tax sale ; and though we regret to see parties
deprived of the fruit of their labour by an oversight, we dare not
protect them at the sacrifice of a principle.

Judgment reversed, and a venire facias de novo awarded.

300 SUPREME COURT [Pittsburgh

Hankins's Estate.

A testator devised " to my daughter A. I give and devise the farm where I
live, provided she does not get married. Should she get married, the said pro-
perty shall be given up, and in lieu thereof I give and devise to her $500. Should
she die or get married, then the property willed to her to be sold, and equally
divided amongst the surviving heirs ; A. to be considered as one of the heirs."
A. died unmarried. Held, that the proceeds of the sale of the farm were to be
divided among the surviving children and grandchildren of the testator : and
that the executor of A. was not entitled to any part of it.

APPEAL from the decree of the Orphans' Court of Allegheny

Enoch Hankins died on the 29th of November 1835, leaving
four children surviving him, and several grandchildren, the chil-
dren of two deceased daughters. By his last will and testament,
he thus disposed of part of his estate : " To my daughter Ann, I
give and devise the farm and all the personal property which I
now possess and whereon I live, provided she does not get mar-
ried ; also, the house and lot on the Monongahela river, on the
same conditions. Should she get married, the said property shall
be given up, and in lieu thereof I give and devise to her $500.
Should Ann die or get married, then the real and personal pro-
perty willed to her to be sold, and equally divided amongst the
surviving heirs, Ann to be considered as one of the heirs."

In November 1839, Ann died unmarried and without issue, leav-
ing a will and appointing executors. After her death, John Gil-
fillen, administrator, with the will annexed, of Enoch Hankins,
sold the property devised to Ann, and the proceeds thereof were
brought into the Orphans' Court for appropriation. The court
referred the same to auditors, who reported, that upon the facts
stated, the fund should be divided into seven shares, of which each
of the four surviving children should be entitled to one share : the
executors of Ann one share, and the children of the two deceased
daughters each one share. This report was excepted to, on the
ground that the executors of Ann were not entitled to any part
of the fund : but the court confirmed the report of the auditors.

Williamson and M'Candless, for appellants.
Van Amringe, for appellee.

The opinion of the Court was delivered by
ROGERS, J. The great and leading rule in the construction of
wills is, that the intention of the testator, if not inconsistent with

Sept. 1842.] OF PENNSYLVANIA. 301

[Hankins's Estate.]

the rules of law, shall govern ; and that no part thereof, to which
meaning or operation can be given consistent with the general
intention of the testator, shall be rejected. The strict grammatical
sense is not always regarded, but the words of a will may be
transposed to make a limitation sensible, and to carry into effect
the general intention of the testator. 11 Vez. 148; 1 Paige 343;
2 Paige 130. Here the general intention of the testator was to
make a comfortable provision for his daughter Ann during her
life. And for this purpose he bequeaths her the farm and all the
personal property he possessed, and on which he lived, and a house
and lot on the Monongahela river. It was given to her on condition
she should not marry ; but if she did marry, the testator bequeaths
her $500, and directs that the property devised be sold, and divided
equally among all his children, of whom Ann was one. If, how-
ever, Ann died unmarried, he directs the property to go among
his surviving heirs, which of course means his own heirs, viz : his
surviving children and grandchildren. This, it is very apparent,
was the general intention of the testator; but to carry this inten-
tion into effect, the language used is not the most clear. " To his
daughter Ann he gives and devises the farm and all the personal
property which he possessed, and on which he lived, and also the
house and lot on the Monongahela, on the same conditions. Should
she get married, the said property is to be given up, and in lieu
thereof he devises to her $500. Should Ann die or get married,
then the real and personal property willed to her to be sold, and
equally divided amongst the surviving heirs, Jinn to be considered
as one of the heirs." It is contended that the words " surviving
heirs" applies to her death as well as marriage, and that she is a
surviving heir in the contemplation of the testator, although she is
dead. But this is a palpable absurdity, for which no rational reason
has been given ; for, there is nothing in the suggestion that the
testator was desirous that she should have power to dispose of her
share of the estate to reward those who might be heirs to her. Of
this there is nothing in the will. It is but a fanciful notion, resting
on conjecture merely. But by a transposition of the language we
give every word in the will its proper and legitimate signification.
Thus, by applying the words " Ann to be considered as one of the
heirs" to her, if she married, we effectuate the intention of the
testator by giving her $500, and an equal dividend of the property
sold, and thus producing an equality as he intended among his
children. So, if she should die, (as was the case, without heirs),
married, the property goes, as is perfectly right, to the surviving
heirs of the testator, viz : his children and grandchildren. By this

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