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138 SUPREME COURT [Pittsburgh



Kramer against M'Dowell.

A notice of the protest of a bill of exchange to be given by one to another who
resides in the same city, must be served personally or by leaving it at his house or
place of business : depositing it in the post-office directed to him, is not sufficient.

ERROR to the District Court of Allegheny county.

Allen Kramer against A. N. M'Dowell. This was an action to
recover the amount of a bill of exchange drawn at Pittsburgh by
William Seeiy on Benjamin Naglee of Philadelphia, for $250, pay-
able to the order of the defendant, A. N. M'Dowell, forty days
after date, who endorsed the same to the plaintiff. The bill was
duly protested at Philadelphia for non-payment, and notice thereof
to the drawer and endorsers forwarded by mail to the drawer at
Pittsburgh, who enclosed the notice for the endorser, A. N.
M'Dowell, and deposited it in the post-office at Pittsburgh, directed
to him at that place, where he resided. The question was whether
this was sufficient notice. The court below (SHALER, President)
decided that it was not.

Dunlop, for the plaintiff in error, cited 1 Hill 263.

The court declined to hear the counsel on the other side.

The opinion of the Court was delivered by

HUSTON, J. The reports are full of cases as to what is or is not
notice of the protest of a note or bill ; and would seem to have
gone as far as public convenience or private individual justice to
the parties would require. These rules were made for mercantile
or business men, who are in the habit of drawing notes or bills,
and receiving letters by mail ; and to apply them to a farmer, who
never endorsed a note before, and does not receive a letter by mail
once in three months, is hard enough, if not more than enough ;
but we are asked to go one step beyond all former cases. All of
them say if the parties live in the same town the notice must be
served on the person to be affected, personally or left at his house
or place of business. The next step would be to let the notary
put all notices to persons in the same city in the post-office, even
where the person to be notified lived next door to him. We leave
the rule as we found it ; that in the same town or city, at least,
unless when they become larger than Pittsburgh, the notice to be
given by one inhabitant to another must be served personally or
by leaving it at the house or place of business of the person to be
notified.

Judgment affirmed.



Sept. 1844.] OF PENNSYLVANIA. 139



Quin against Brady.

In an action of ejectment, where the question arises upon the validity of the
original title of the parties, and not upon the extent of the claim or the Act of
Limitations, the payment of taxes for the land by one party or the other cannot
affect the title, and is therefore illegal evidence.

If a warrant for vacant land be put into the hands of the deputy-surveyor, and
the land is bounded by older surveys made, marked upon the ground and return-
ed, the deputy may execute such warrant by adopting the old lines and returning
the survey accordingly without actually going upon the ground.

There is no law to prevent a deputy-surveyor from becoming interested in the
location and appropriation of vacant lands, or for a consideration pointing them
out to another for appropriation, provided he acts with good faith towards all
others in his official conduct respecting the same.

ERROR to the Common Pleas of Westmoreland county.

Hugh Y. Brady against James Quin. This was an action of
ejectment. The points made in the court below and the opinion
of his Honour Judge WHITE, who tried the cause, are fully stated
in the opinion of this court.

Foster, for the plaintiff in error.
Beaver, for the defendant in error.

The opinion of the Court was delivered by

HUSTON, J. H. Y. Brady, the plaintiff below, gave in evidence
a patent to himself, dated 22d October 1823, for the land in ques-
tion, about 30 acres ; a warrant to himself, dated 12th September
1823; and a survey thereon of the 6th October 1823, by Isaac
Moore, deputy-surveyor. The defendant, Quin, gave in evidence
a warrant for 400 acres to George Clark, dated the 8th February
1785, " including his improvement interest from 1st March 1779,"
on which a survey had been made on the 2d June 1787, of 429
acres, by John Moore, deputy-surveyor. It appeared in the cause
that in making this survey, the surveyor had included 458 acres ;
but this being more than 10 per cent, above the quantity called
for, he cut off a part by dotting a line across, and returned 429
as above ; and it appeared that Clark had patented his land as of
this latter quantity.

On the 12th August 1790, he sold off 308 acres to Alexander
Lemmon, which would include the part not returned, and which
part is now in dispute. This deed was not recorded until 1842.
The title of Lemmon was deduced to the defendant.

Several witnesses were called and proved, what was not dis-
puted, that Clark, and then Lemmon, and next Quin, had occupied



140 SUPREME COURT [Pittsburgh

[Quin v. Brady.]

the 308 acres, from before the date of the survey ; and two wit-
nesses proved that about 1823, Quin cleared across the dotted
line on the part in dispute, and included that and a part in the re-
turned survey in one field, and had since cleared more of the part
in dispute. Brady had not attended to his land, and did not, it
would seem, know its exact location or lines until 1842, when he
went with a surveyor, and they called on Quin for information ;
he showed his title, and among other papers an old draft of the
George Clark survey, and on it the part in question cut off by a
dotted line. On the 26th March 1842, Quin took out a warrant
for 29 acres, to pay interest from 1st March 1823 ; and on the
12lh April 1842, a survey was made on it of 30 acres 19 perches,
by J. Meckling, deputy-surveyor. Meckling was examined, and
swore that in making this survey he examined carefully and found
marked lines of old surveys, but no marks of the date of Brady's
survey ; the lines of this and Brady's survey were the same.

An instance of what useless evidence will be thrust before a
court and jury occurred here. The neighbours, none of whom,
however, lived in sight of the lines, were called and proved that
none of them saw Isaac Moore run the survey of Brady. Now I
suppose nobody now alive saw George Clark's survey made ; and
probably there are not three surveys in the township made thirty
or twenty years ago, which would be good if you must produce
persons who were present and saw the lines run and marked.

The defendant then offered to prove that the land in dispute
had been assessed as Quin's, and he had paid the taxes ; the court,
on objection, overruled the evidence, and an exception was taken.

The judge was no doubt weary of having useless testimony, and
he rightly rejected the evidence. The defendant had already
proved that he had cleared and cultivated a part of the land.
Paying taxes does not give title ; it may show a claim, but this is
not necessary where he who paid is in possession ; such evidence
is sometimes given to show how much an improver, who has no
survey, claims ; but I repeat, it does not give title. If he in
possession pays taxes twenty-one years, and no suit is brought
against him, he will hold the land ; this is not by paying taxes,
but by the Statute of Limitations. It was prpved tfiat Brady had
said, that in the days of Isaac Moore, he, Moore, had come to the
store of Brady's father, and said if he would give him a coat or
suit of clothes, he would inform him where a piece of vacant land
lay, and thus he got the warrant ; and it was patented when his
father, James Brady, was Secretary of the Land Office.

The court were requested to charge the jury on two points.

1. If the court believe from the evidence that Isaac Moore was
interested and had contracted to sell the land to H. Y. Brady for
a coat or suit of clothes, in such circumstances the survey would
be void. The court answered in the words of the point, only
concluding that it would not be void. A judge once said some-



Sept. 1844.] OF PENNSYLVANIA. 141

[Quin v. Brady.]

thing about a survey made by a deputy-surveyor for himself being
void, but only one judge. If land was clear of other claims, there
never was any law or regulation of the Land Office forbidding a
deputy-surveyor to take it, or point it out to another.

2d point. The survey of Isaac Moore, deputy-surveyor, and re-
turn thereof, is prima facie evidence of the making of such survey;
but that such evidence may be contradicted and overcome by
direct testimony, or circumstantial evidence ; and that if the jury
believe Isaac Moore was not on the ground as deputy-surveyor,
but made the draft in his chamber and returned it, in such case it
is null and void. The court say, " In answer to the second point,
we instruct you that the return by the deputy-surveyor is prima
fade evidence of the making such survey, because he is a sworn
officer, and the presumption always is that the officer does his
duty ; but that any one affected by it will be allowed to impeach
the deputy-surveyor's return within 21 years, either by direct or
circumstantial testimony that the surveyor never was on the
ground and that in point of fact there is no such survey ; and that
as a general rule the law is as stated in the last clause of the propo-
sition. But, like all general rules, there are exceptions, and if the
three sides of this survey were the boundaries of the adjoiners, as
returned in the official surveys, and these boundaries actually
marked on the ground, Isaac Moore might adopt these lines, and
might draft his survey from them, and return it to the Surveyor-
General's Office without going on the land, and it would be a
good and valid appropriation of the land in dispute.

The court delivered to the jury an elaborate and learned charge
in accordance with what is said in answer to the second point
above, only they added that George Clark having taken out his
patent on his survey as returned, was bound by that, and could
not claim land not in it.

The counsel here assigned four errors.

1. The first is as to rejecting evidence as to payment of taxes,
which is answered already. 2, 4. The 2d and 4th are the same
in substance, and will be answered together. 3. The 3d is to that
part of the charge of the court relating to Clark and the defendant
being bound by his patent. I thought that a survey returned and
filed, and much more, a patent taken out on it, were considered
by our law as record evidence of title, and that all might not de-
pend on parol ; and that this had been so often settled as not to
be doubted or to have been debateable for the last thirty years.
Even where a survey is returned, no change can be made except
on an order of the board of property. After a return and patent
on that, and an acquiescence for many years, it must be a singular
case in which any board of property will throw all this open again.
That board cannot do it, if in the mean time a title to the land
included in the return and patent has been acquired by any other
person. The remaining assignment of errors I shall answer by



142 SUPREME COURT [Pittsburgh.

[Quiii v. Brady.]

citing two or three cases, in which all the points in this cause
were settled by our predecessors.

In 6 Binn. 39, we find the case of Werdman v. Felmly, which
is this case in all particulars, only stronger. William Mackey, in
1774, had on the same day made a survey for himself in the name
of Janet Sharon, and one for General Potter in the name of Ro-
bert Mackey. They were not returned until 1783, and in the
returns of survey, Mackey and Sharon called for each other ; but
Mackey, on calculating Janet Sharon, found the lines contained
411 acres on a warrant for 300; he therefore cut offyby protrac-
tion 100 acres, and still he returned Janet Sharon as adjoining
Mackey. As soon as the office opened in 1784, he took in his own
name a warrant for the 100 acres. The return of survey was made
without re-marking the lines, and probably without going on the
ground. The late Judge DUNCAN and I were counsel for Werdman.
Our courts, in that part of the State, had been much engaged for
many years in trying titles to land, and this had so often been
settled, that it was not, in the Supreme Court at least, made an
objection ; nor was it objected that the deputy-surveyor who
made the surveys and threw out a part of one, had himself taken
a warrant for the part thrown out, unless his conduct was fraudu-
lent. The law was laid down as it was in this case by the court
below.

In Lambourn v. Hartswick, (13 Serg. 4* Rawle 113), the other
point as to a survey called for being returned, and also the neces-
sity of re-marking old lines, was decided. That was a second
trial ; Hartswick had settled under Lambourn, and Miles had re-
covered ; and he had leased under Miles. The property was
valuable; the cause was elaborately tried and fully considered,
and the law settled as in this case ; and we could not do anything
more injurious to the country than open again to controversy,
points relating to land titles which have been long since decided
and acted on.

Judgment affirmed.



CASES



THE SUPREME COURT



PENNSYLVANIA.



EASTERN DISTRICT DECEMBER TERM 1844.



Jones's Appeal.



It is not universally or even generally true that money which has come to the
hands of a trustee by the act or consent of his colleague, without positive negli-
gence on the part of the latter, is chargeable indifferently to either.

The diligence required of a trustee in the care of the trust estate is precisely
the diligence which a man of ordinary prudence would practise in the care of his
own.

Held, therefore, that where joint guardians in affluent circumstances and in good
repute apportion the custody and management of the property to suit the peculiar
capacity and qualifications of each, but without surrendering the right of eithei
to intermeddle with the whole, each is chargeable with no more than he received,
unless he stood supinely by while his colleague was manifestly impairing the
estate.

THIS was an appeal by Paul Jones, one of the guardians of the
three minor children of John H. Levering, deceased. In March
1826 Paul Jones and John Levering were appointed guardians.
Paul Jones was cited in the Orphans' Court of Philadelphia county
to settle his account. He filed an account stating the sum of
$78.92 principal and interest of money received by him of Abra-
ham Levering, the administrator of John H. Levering, deceased,
on the22d January 1838, accompanied with an answer on affirma-
tion stating that " the principal management of the concerns of

(H3)



144 SUPREME COURT [Philadelphia

[Jones's Appeal.]

said children was conducted by John Levering. That your respon-
dent herewith files an account of his guardianship, showing the
only transactions which he has had as guardian. That the said
account is just and true in the charge and discharge thereof, to the
best of his knowledge and belief, and that no other money, property
or estate belonging to his wards, other than that stated in his
said account, ever came into his hands, possession or power ; and
that he has no other account or settlement of his guardianship to
make; whereupon he requests he may be discharged from the
further answer to said citation."

No objection was made by the complainants to the items of this
account, but they sought to charge him with moneys received by
his co-guardian, amounting, according to the auditor's report, to
upwards of $900, and lost in consequence of his insolvency. The
auditor, on the authority of Bone v. Cook, (M'Clelland 168) ;
Oliver v. Court, (8 Price 127) ; Brice v. Stokes, (11 Vez. 319), and
Walker v. Symonds, (3 Swans. 61), thought that the appellant was
chargeable with the whole ; and his report was confirmed by the
court below.

The following was the evidence given in the case as reported by
the auditor.

Paul Jones affirmed. Abraham Levering gave me notice. It
(the guardianship) was offered me, and I agreed to assist John in
taking care of the property, with a clear understanding with Abra-
ham that I shouldn't have anything to do with the money ; these
were the conditions on which I agreed to accept it. Never was
asked for security. Was a neighbour of John Levering's ; lived in
sight of him. I received what money I have returned here. I
took the money I have returned because Abraham pressed me to
take it. I was unwilling because I had declared off in the first
start. Abraham gave me a reason ; the reason he gave was a
wish of the family, and his wish ; and that they couldn't get the
money from John Levering's hands.

Abraham Levering affirmed. I think in two days after his
appointment I informed Paul Jones of it. All the children were
small. Jonathan was the oldest, and was then about eleven.
There was no contract made by me with Mr Jones before the
appointment ; he agreed to serve with John Levering. Soon after
the appointment he wished me to pay the money to John ; he
thought him most competent to do the business ; it was at his sug-
gestion I paid it to John. I never made any agreement with Jones
that he was not to be liable in his trust as guardian. Mr John
Levering has failed, and made an assignment. Ishould have paid
the money to either, as most convenient to myself, but for Mr
Jones's suggestion. We thought them both responsible.

Cross-examined. I don't recollect, when I asked him to be
guardian, that he objected to have the money. I know that he at
first refused. I do not recollect that he refused to have anything



Dec. 1844.] OF PENNSYLVANIA. 145

[Jones's Appeal.]

to do with the money affairs ; when the money was paid to him,
he refused to receive it, as John had received the rest, and I told
him the family wished him to receive it.

Levering recalled. There are about $19,000 of incumbrances
on my estate one mortgage $11,000, date something like 1833
or 1834 the others are judgments obtained within the last two
or three years.

Jones recalled. I valued the estate of Levering within the last
year, and valued it at $26,000. We thought four years ago it
was worth more.

Margaret Levering affirmed on part of exceptants. Six or seven
years ago Paul Jones was at my house, before my son Jonathan
was of age; he is now twenty-seven. Jones said he didn't know
what to think of John Levering, some one or other would always
be calling him of one side ; that he expected they were after
money. Jones said he would receive money from Abraham Le-
vering ; that he was sorry he hadn't received more of it. Jones
acted as guardian.

Isaac W. Roberts affirmed on part of P. Jones. I have known
John Levering and Paul Jones since we were boys. I shall be
fifty-three next spring. I considered John Levering one of the
wealthiest men we had in our neighbourhood, till twelve or four-
teen years ago ; he then met with a considerable loss that deranged
his business. I had then no doubt about his solvency. Up to the
time he made his assignment, and some months after, I thought he
would have more than enough to pay. On the 18th May last (1841),
his assignment was made. I loaned him money less than a year
before his assignment, $50. I should have made no difficulty in
paying him money as guardian. Until Levering met with this
loss, I should have thought him richer than Jones.

Cross-examined. I have no hopes that his estate will pay his
debts. If it had been sold a year ago, I think it would.

Joseph Trasel affirmed. Known Levering a number of years ;
always considered him in good circumstances until the time
referred to by Mr Roberts ; at that time he sustained a loss ; but
always thought him a solvent man up to the time he made his
assignment. I knew or heard that he was pushed for money a
few months or a year before his assignment.

George F. Culin affirmed. I have heard of John Levering many
years ago. The first I heard of his pecuniary difficulties was in
reference to taxes. He was always esteemed and spoken of as a
solvent man. Two or three years ago Reverend Mr Jones told
me he was pushed.

Peter C. Erben sworn. I have known John Levering only six
or seven years intimately; always thought his property sufficient
to pay his debts.

John Levering affirmed on behalf of Jones. I was born in Lower
Merion township, Montgomery county, opposite Manayunk. I

VIII. 19 N



146 SUPREME COURT [Philadelphia

[Jones's Appeal.]

have lived there all my life. I inherited real estate there from my
father. I was a miller had a saw-mill, a grist-mill and after-
wards was a woollen manufacturer. I have been on several occa-
sions administrator, executor, guardian, trustee. Two or three
years before I made my assignment, I was appointed a guardian.
That appointment, I think, was in 1838 or 1839. The heavy loss
that I sustained, that is mentioned in the auditor's report, hap-
pened in 1831, in consequence of the failure of Gillingham, Mit-
chell & Co. They failed in the latter part of that year. They
were my factors. In the early part of the same year I sustained
a heavy loss by a freshet. I could not see that my general cha-
racter and standing were affected by these losses. I don't think
that I cou-ld see any material difference until within two or three
years of my assignment. I borrowed a sum of money in April
1839 of Mr Grant, on bond and warrant of attorney. It has not
been entered in the office. After I sustained my heavy losses I
was able to meet my engagements with punctuality, and to bor-
row money for my current purposes. I could do so as well as
most men in business at that time, I believe. My final failure
took place in May 1841. So far as I could judge, that failure was
unexpected by others. It was after 1833, I can't tell the year or
day, Paul Jones asked me if the funds of the children of John H.
Levering were invested. I told him they were out on bond and
mortgage. A part in fact were out on bond and mortgage; the
part that was out was the same $700 that was handed over to my
successor in the guardianship. The rest of the money was not in
fact invested ; it was in my own hands. I don't know that I let
Mr Jones know that fact.

Question for Paul Jones. As far as you know or belteve, did
anything occur to induce Mr Jones to believe that any part of the
money was uninvested 1 Objected to. Witness answers. No;
he appeared to be satisfied with what I told him. I can't remem-
ber the precise words of Mr Jones ; he generally made inquiries
if the moneys were out at interest. My answer was a general
one. I can't say how many times this occurred, but two I have a
distinct recollection of. I think the last one was within two years
of my assignment; the first was after 1833, I can't tell how long.
On each occasion Mr Jones appeared to be satisfied.

Cross-examined. I think I did not show Mr Jones any bonds
or mortgages on the occasion referred to. I did not show him
any ; he did not ask to see them. I do not recollect that he asked
me the name or names of the borrowers, but I think I told him the
name, Young ; there was no other name. I can't say whether I
told him the amount Young had. I think he did not ask me the
amount. I think I told him on what real estate the money was
loaned. I don't know that I was so particular as to tell him the
county. He knew the place as well as I did ; that it was in Ma-
nayitnk. I don't know that he personally knew Young. I never



Dec. 1844.] OF PENNSYLVANIA. 147

[Jones's Appeal.]

exhibited to him the state of my accounts, the balance in my
hands. He never, to my recollection, asked me. I never told
him the amount of money in my hands. He never asked me. I
can't say positively that I did or not tell him the amount invested.
I can't say whether he asked me. I don't know that 1 ever exhi-
bited to him any papers connected with my trust. To my recol-
lection he never asked me. At the time of my failure I owed;
the whole gross amount was $24 or $25,000. I can't say what
amount was on bond and mortgage, without taking some time to
add them together. I can't tell what amount on notes or other
contracts, unless I had a list to separate them. I can't tell whe-
ther my estate will pay this trust fund. I thought my estate
would pay all. The present prospect is not flattering. From
present appearances, my estate will not pay this trust fund. My
failure was not expected by me one day before my failure. I did
not pay all demands on me promptly up to my failure. I did till
pretty nearly the time. Till about a year before. Since the fail-



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