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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 1) online

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press the price of the property by artifice, the purchase will be void ;
if it be to raise the means of payment by contribution, or to divide the
property for the accommodation of the purchasers, it will be valid.

If a purchaser at sheriff's sale participate in a fraudulent contri-
vance, by which he was enabled to become the purchaser, in an
action of ejectment against him for the property purchased, it is not
necessary that the plaintiff should offer to refund the amount which
was bid at the sheriff's sale and paid for the title. Smull v. Jones, 129.



INDEX. 501

SHERIFF'S SALE.

2. On a sheriff's sale of land, all liens on the land, due at the time
of the sale, where they may be reduced to a certainty as to amount,
are entitled to payment out of the proceeds : hence the arrears of a
widow's annuity, which are due and payable, must be paid out of the
proceeds of sale. Reed v. Reed, 235.

3. A fraudulent vendee gains no title to the land by a sheriff's sale,
nor interest in it, notwithstanding an innocent creditor may by that
very sale obtain a good title to the money. It shall be a good sale as
to the creditor, to entitle him to receive the money, and yet no sale as
to the fraudulent vendee, to enable him to shelter the land against pur-
suit. Foulk v. M'Farlane, 297.

4. A sheriff's deed, with a certificate endorsed upon it under the
hand and official seal of the prothonotary, that it was duly acknow-
ledged in open court, and entered of record, is prima facie evidence
without showing the record. Foust v. Ross, 501.

5. Upon a written waiver of an inquisition by a defendant whose
real estate is seized in execution, the sheriff shall proceed to sell upon
the fieri facias before the return day thereof, without any further
writ : but a sale made after the return day, although continued by
adjournment from a day prior, is void, and vests no title in the pur-
chaser. Cash v. Tozer, 519.

6. A levy and sale of a tract of land as being in the possession of
a certain person, containing a particular number of acres, will vest
the whole tract in the purchaser, although it be found to contain a much
greater number of acres. Zeigler v. Houtz, 533.

SUBMISSION.

HUSBAND AND WIFE, 2.

SUBSTITUTION.

ASSIGNMENT, 1, 2.

1. If after judgments are obtained against a principal and surety, a
third person interposes and gives his note for the debt to obtain a stay
of execution for the principal, and the surety is afterwards obliged to
pay the debt, he is entitled to have an assignment of the judgment on
the note of the third person, to indemnify him for such payment. Pott
v. Nathans, 155.

2. The remedy by distress incident to a widow's annuity, ascertain-
ed by a proceeding in the Orphans' Court, in partition under the intes-
tate laws, is not one to which there can be any equitable subrogation. It
is a personal remedy which belongs to the widow, and which she can-
not use for the benefit of another, who had previously paid the annuity
to her. Shouffler v. Coover, 400.

SUNDAY.

In an action on a contract for the sale of a chattel, proof by the
defendant, that it was received by the vendee on Sunday, from a third
person, does not raise such a presumption that the contract was made
on Sunday, as will defeat the plaintiff's action. Hadley v. Sncvily.
477.



592 INDEX.

SURRENDER.

A voluntary surrender of himself by one who has given bond to
take the benefit of the insolvent laws, will not relieve his bail from the
obligation contained in his bond. Wolfram v. Strickhouser, 379.

SURVEY.

1. A return of survey into the Surveyor General's office, and a lapse
of twenty-one years afterwards, without any attempt made during that
time to take exception or object to it, is conclusive evidence that it was
regularly made.

Reputation and hearsay is such evidence as is entitled to respect in
a question of boundary, when the lapse of time is so great as to ren-
der it difficult to prove the existence of the original land-marks.
Nieman v. Ward, 68.

2. It is essential to the validity of a title founded upon a warrant
and survey as against an intervening right, that the survey shall have
been returned within seven years ; for otherwise, notwithstanding the
property, which was unseated, may have been assessed and the taxes
paid by the owner ; that he used it as woodland for the purpose of
supplying the farm on which he resided with fire-wood, rails, and tim-
ber ; that he claimed title, and this with the knowledge of the improver ;
yet after the lapse of seven years, his right is for ever postponed.
Strauch v. Shoemaker, 166.

TACKING.

LIMITATION, 6.

TAXATION.

The first section of the Act of 15th of April 1835, does not limit the
power of the inhabitants of a borough or township to assess any amount
of tax for school purposes. Wilson v. Borough of Lewistown, 428.

TENANTS-IN-COMMON.

An adverse holding by one tenant-in-common, for any length of
time, however short, previously to the institution of an action of par-
tition, will bar a recovery in such form of action. Law v. Patter-
son, 184.

TENDER.

FRAUD, 1.

TRANSCRIPT.

JURISDICTION, 4.

TREASURER'S SALE.

1 . When unseated land is sold for the payment of taxes, the title of
the real owner, whatever it may be, passes to the purchaser, whether
it be assessed and sold in his name, the name of the warrantee or a
stranger, and whether the person in whose name it is taxed and sold
has or has not any title. Strauch v. Shoemaker, 166.

2. An assessment of a tax by some proper authority, is essential to



INDEX. 593

TREASURER'S SALE.

the validity of a sale of unseated land by the treasurer. Bratton v.
Mitchell, 310.

3. A return of unseated land to the County Commissioners for
taxation, and the payment of the taxes for thirty years, are prima facie
evidence of ownership of the warrant upon which the land was sur-
veyed : and in an action of ejectment against a naked intruder who
entered with notice of the plaintiff's claim, are conclusive, without
other evidence of a conveyance by the warrantee, who under such cir-
cumstances will be considered as having been a trustee for the owner.
Taylor v. Dougherty, 324.

4. The omission of the commissioners to bid for a tract of unseated
land the whole amount of taxes and costs which may have been as-
sessed upon it, will not avoid the title in the hands of a bonafide pur-
chaser.

The recital in a treasurer's deed for unseated land, that a bond was
given for the surplus purchase- money, is prima facie evidence of the
feet, and sufficient for the purpose, unless disproved.

It is not necessary to give a surplus bond when the amount of it
would not exceed the cost of giving the bond. De minimis non
curat lex.

A tract of unseated land may be sold by the treasurer for the non-
payment of taxes, upon an assessment made by the commissioners,
without the intervention of the assessor. Demnney v. Reynolds, 328.

TRIAL.

ERROR, 1.
APPEAL, 2.

1. A misapprehension by the court of the construction of an agree-
ment, by reason of which in their charge they mislead the jury, is
good ground of reversal. Stroh v. Hess, 147.

2. In the trial of a civil suit, the jury must determine facts upon
the weight of evidence ; and a direction from the court that they must
be " conclusively convinced," or that " there must be no doubt resting
on their minds" as to any particular point, is erroneous. Hiester v.
Laird, 245.

3. If there be competent evidence given on the trial of a cause
which is conclusively fatal to the plaintiff's action, the court will not
inquire into the alleged incompetency of other evidence, to the admis-
sion of which exception was taken. G'Donnell v. Lynch, 283.

4. If testimony be offered by one party, the other may require the
purpose for which it is offered to be stated ; if this be not done, and
the evidence be admitted generally, it is not an error, if it was com-
petent for any purpose. McClelland v. Lindsay, 360.

5. In an action of ejectment, upon the trial of which the defendant
gave no evidence, but relied upon the insufficiency of the plaintiff's
evidence in support of his title, it is not error in the court to instruct
the jury that it is sufficient to entitle him to recover. Foust v.
Ross, 501.

TRUST.

EttUITABLE TlTLB.

i. 75 2 z '



594 INDEX.

TRUST.

1. It is not an implied condition of the grant in trust for the unin-
corporated congregation by the style of " The Society of English
Presbyterians and their Successors in and near the Borough of York,"
that it shall remain connected with any particular church judicatory :
therefore ruled, that when the General Assembly of the Presbyterian
Church in the United States was divided into two distinct fragments,
each declaring itself to be the true General Assembly, the persons
composing the majority of this congregation did not forfeit their inte-
rests in the trust by refusing to acknowledge the authority of either
of the conflicting judicatories. Presbyterian Congregation v. John-
ston, 9.

2. Trusts which are not affected by the Statute of Limitations are
those technical and continuing trusts, which are not cognizable at
law, but fall within the proper, peculiar, and exclusive jurisdiction of
a court of equity. Finney v. Cochran, 112.

3. If one buys the defendant's property at sheriff's sale, and ver-
bally agrees to hold it in trust for the defendant, with a right of
redemption within a limited period, it is a contract resting in parol
merely, and not transferring any title in the land. Fox v. Hefner,
372.

TRUSTEE.

ORPHANS' COURT.

UNSEATED LAND.

TREASURER'S SALE, 3, 4.

1. When unseated land is sold for the payment of taxes, the title of
the real owner, whatever it may be, passes to the purchaser, whether
it be assessed and sold in his name, the name of the warrantee or a
stranger, and whether the person in whose name it is taxed and sold
has or has not any title. Strauch v. Shoemaker, 166.

2. An assessment of a tax by some proper authority, is essential to
the validity of a sale of unseated land by the treasurer. Brtvtton v.
Mitchell, 310.

3. A tract of unseated land may be sold by the treasurer for the
non-payment of taxes, upon an assessment made by the commission-
ers, without the intervention of the assessor.

The omission of the commissioners to bid for a tract of unseated
land the whole amount of taxes and costs which may have been as-
sessed upon it, will not avoid the title in the hands of a bond fde pur-
chaser. Devinney v. Reynolds, 328.

4. In an action of ejectment against one who enters without right,
if the plaintiff show that the title to the land in dispute is out of the
commonwealth, that taxes were assessed upon it, and that he holds a
deed of the sheriff who sold it for the non-payment of taxes previously
to the Act of 1815, it is such aprima facie title as puts the defendant
to the necessity of showing a better right ; which if he fail to do, the
plaintiff is entitled to recover.

To recover upon a title founded upon a sale for taxes prior to the



INDEX. 695

UNSEATED LAND.

Act of 1815, the plaintiff must show a strict compliance with the re-
quisitions of all the Acts of Assembly authorizing sales in such cases,
or he must show what would amount to an abandonment of the title
by the original owner ; and if it appear that such original owner had
not looked after the land, and had not paid any taxes for it for up-
wards of twenty-one years, it would amount to an abandonment, and
the holder of the tax title would be entitled to recover upon it against
one who showed no title, and was a mere intruder. Fouat v. Ross,
501.

VARIANCE.

A variance between a statutory bond and the requisitions of the law,
is fatal only when the condition would impose a greater burden on the
obligor than the law allows. Commonwealth v. Laub, 261.

VENDOR AND VENDEE.
WITNESS, 5.

1. Articles of agreement for the purchase of land become merged
in the conveyance and thenceforth null and void : there being no alle-
gation of fraud or mistake in the execution of the conveyance. Creigh
v. Beelin, 83.

2. As between a vendor and vendee of land, the acceptance of a
deed and execution and delivery of bonds for the purchase-money,
closes the question upon the agreement, merges it in the conveyance,
and precludes the parties from afterwards claiming, either on the one
side an allowance for a deficiency in the land, or on the other pay-
ment for a surplus. Cronister v. Cronister, 443.

3. In an action of covenant by a vendor against a vendee to com-
pel the payment of purchase-money, upon the pleas of won estfactum
and covenants performed, if the defendant rest his defence upon a de-
fective or encumbered title of the plaintiff, he must make that defence
on the trial of the cause, otherwise he cannot avail himself of it upon
a writ of error. Snevily v. Egle, 480.

4. A sale and delivery of personal property by one in possession
contains an implied warranty of title : and on the issue of property
between two persons claiming, as vendees of the same goods, the ven-
dor cannot be called as a witness, by one, to prove he sold and deli-
vered the goods to him, and not to the other. M'Cabe v, Morehead,
513.

5. A vendor cannot maintain an action to recover the purchase-
money of land, upon a parol agreement of sale, and proof of perform-
ance of the contract on his part : but he may recover damages from
the vendee on the parol agreement. Wilson v. Clark, 554.

VENDUE.

An auction is a sale by consecutive bidding, intended to reach the
highest price of the article, by exciting competition for it ; such only
ie prohibited by the Act of the 2d of April 1830. Hibler v. Hoag.
552.



596 INDEX.

WAGES.

MASTER AND SERVANT.

WAGONER.

A wagoner who carries goods for hire, thereby contracts the
responsibility of a common carrier, whether transportation be his
principal and direct business, or an occasional and incidental employ-
ment. Gordon v. Hutchinson, 285.

WAY-GOING CROP.

The way-going crop, to which a tenant is entitled upon his leaving
demised premises, includes as well the straw as the grain, which he
may remove and dispose of as he pleases, being subject only to the
terms of his contract, and not to any supposed custom of the country
on that subject. Craig v. Dale, 509.

WARRANTY.

A sale and delivery of personal property by one in possession, con-
tains an implied warranty of title : and on the issue of property be-
tween two persons claiming as vendees of the same goods, the vendor
cannot be called as a witness, by one, to prove he sold and delivered
the goods to him and not to the other. M'Cabe v. Morehead, 513.

WIDOW.

DISTRESS, 1.

The acceptance by a widow of her share of her deceased husband's
intestate estate, under the statute of distributions, is not an election
such as will bar her from recovering dower out of land which her
husband had aliened in his lifetime. Leinaweaver v. Stoever, 160.

WILL.

It is not necessary to the legal probate of a will, that the witness
should be able to say, that the testator expressly acknowledged the in-
strument to be his will : it is sufficient that he declared the execution
of it to be his act and deed. Loy v. Kennedy, 396.

WITNESS.

WARRANTY.

1. In a question between the holder and endorser of a note regard-
ing the exoneration of the latter on the ground of the negligence of the
holder, it is error to permit the endorser to give evidence of the ability
of the payor at a period when it was not in the power of the holder to
enforce payment. Bank of Pennsylvania v. Reed, 101.

2. In an action of debt upon a written obligation in the name of the
obligee for the use of another, where the defence made is that the
obligation was paid to the obligee before his transfer of it to him for
whose use the suit is brought, the obligee is not made a competent
witness by the payment of all the costs which have and may accrue
in the action. Stroh v. Hess, 147.

3. Any one who is not a party to a suit on the record is presumed



INDEX. 597

WITNESS.

to be free from interest and competent to testify, until the contrary be
made to appear by proof. Hence, in an action against a sheriff's sure-
ties to recover the amount of a writ of fieri facias which came to the
hands of the sheriff's deputy for execution, the deputy is a competent
witness for the defendant, unless it be proved by the plaintiff that he,
in consequence of negligence or misfeasance, had made himself liable
to his principal for the amount of the writ. Juniata Bank v. Beale, 227.

4. It is error to permit a witness to testify respecting a fact of which
he has not the means of knowledge. Hiester v. Laird, 245.

5. In an action of ejectment by a vendor against one who purchased
the land as the property of the vendee at sheriff's sale, the vendee is
not a competent witness. Jones v. Patterson, 321.

6. In a scire facias upon a mechanic's lien against the owner of
a building, and the contractor who constructed it, by him who fur-
nished the lumber, in which it appeared that the contractor had been
fully paid for his work and materials, he is not a competent witness
for the owner. But he may be made competent by a release from the
owner for his liability over to him for costs, to which he might be sub-
jected in the event of a recovery against him. Dickinson College v.
Church, 462.

WRIT OF ERROR.

1. An amendment at common law is not the subject of a writ of
error. Davis v. Church, 240.

2. The death of a plaintiff before suit brought, may be taken ad-
vantage of by a plea in abatement, or in bar ; and if a judgment in
such case be inadvertently rendered, it will be reversed on a writ of
error coram nobis. Hurst v. Fisher, 438.

YORK COUNTY.

An action upon a bond given by the commissioners of York county
for the redemption of small notes may be removed from the jurisdic-
tion of the Common Pleas of York county to that of Adams county,
under the provisions of the Act of 6th June 1839.

A county commissioner is elected for three years, and until a suc-
cessor be elected, and his official acts are binding upon the county
although done after the lapse of three years, if his successor be not
elected and sworn into office. York County v. Small, 315.



END OF THE FIRST VOLUME.



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Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 1) → online text (page 67 of 67)