applicable to tax sales where the curative provisions of the Act of 1815 apply. The curative provisions of that Act do not apply to sales made by the commissioners, and in such a case affirmative compliance with provisions of Act of 29 March, 1824, must be shown. Jenks v. Wright, 11 Sm. 410. Hess v. Harrington, 23 Sm. 438. McCoy v. Michew, 7 W. & S. 386. A presumption of regularity attaches to a deed made by County Commissioners. McHenry v. McCall, 10 Watts, 456. 6. The continued claim for nearly fifty years of As to presumption founded on length of time plaintiff's ancestor with acts of ownership and paybeing in favor of party in possession Read v. Goodyear, 17 S. & R 350. 3. No evidence as to the purchase of and payment of taxes on other tracts than that in dispute should have been admitted. Ankeny v. Albright, 8 Harris, 157. 4. As to the entry "paid before sale." Ankeny v. Albright, supra. Kennedy v. Daily, 6 Watts, 269. Beale v. Commonwealth, 7 Watts, 183. The plaintiffs themselves offered evidence of the time of payment, viz: 10 Jan. 1829, and cannot be permitted to contradict the evidence of a record by a loose entry made after the sale without authority. 5. There was no evidence of sufficient search for the tax-receipts, the contents of which were allowed to be proven. · Porter v. Wilson & Kelly, 1 Harris, 641. The evidence of the contents was not sufficient. There was no evidence that the taxes were paid before the sale. Stanley Woodward and Linn (with whom was Clarence Deringer), contra. 1. The treasurer's deed under the sale of 8 November, 1820, contained the recital directed by the Act of Assembly, that he "offered the same for sale agreeably to law." This shows that an adjournment must have taken place. See McReynolds v. Langenberger et al., 7 Sm. 13. The presumption is that the sale was properly conducted McCoy v. Michew, 7 W. & S. 389; especially after a great lapse of timeHuzzard v. Trego, 11 Casey, 9. ment of taxes was sufficient evidence to warrant a jury in finding that the taxes of 1832 and 1833 had been paid before the sale. Alexander v. Bush, 10 Wright, 62. Devor v. McClintock, 9 W. & S. 80. Lackawanna Iron Co. v. Fales, 5 Sm. 90. Rogers v. Johnson, 17 Sm. 43, does not conflict with the above cases. Laird v. Heister, 12 Harris, 452. Greenough v. Fulton Coal Co., 24 Sm. 486. Bank of Bellefonte v. McManigle, 19 Sm. 156. Best on Presumptions, 32. May 10. THE COURT. The cases of Cuttle v. Brockway, 12 Harris, 145, Iron Co. v. Fales, 5 P. F. Smith, 90, and Heft v. Gephart, 15 P. F. Smith, 540, have closed against all debate the question of the application of the maxim omnia præsumuntur esse rite acta to tax sales under the Act of 1815. The ground of the objection made by the defendants below to the deed to the Luzerne Commissioners of the 2d of December, 1820, was that the sale had not been made on the second Monday of June, nor on any other day to which it was shown to have been adjourned. The fourth section in the Act of the 13th of March, 1815, declares that "no alleged irregularity in the assessment or in the process shall be taken or construed to affect the title of the purchaser" of unseated land for taxes, "but the same shall be declared to be good and legal." The sale in this instance was made on the 8th of November, 1820. The deed was A sale to the County Commissioners is within the delivered in pursuance of it. No action of ejectcurative provisions of the Act of 1815. Peters v. Heasley, 10 Watts, 208. 2. The evidence in regard to the payment of taxes, etc., on other than the Samuel Rope tract was proper, because the tracts had always been treated by Deringer as one. Woodside v. Wilson, 8 Casey, 52. 3. The entry "paid before sale," was properly submitted to the jury as evidence of that fact. 4. The preliminary proof of search for the lost receipts was sufficient. 1 Greenleaf on Evidence, Sec. 558. 5. As to the presumption of regularity arising from lapse of time. Cuttle v. Brockway, 12 Harris, 147. . ment was brought by the owner within the statutory period of five years. The subsequent records in the offices of the Commissioners and Treasurer were made up on the assumption of the regularity of the proceedings. The deed recited the offer of the land for sale agreeably to law." The absence of entries of adjournment from day to day was a defect of form and detail. It was "irregularity in the process," and not the omission of any essential requisite to support the title the Commissioners acquired. The facts made out a case to warrant at least such a binding direction to the jury as was given in Huzzard v. Weys, 11 Casey, 9, that they ought to presume the adjourments to have been duly made. In the . absence of countervailing proof, there was no substantial error in the peremptory instruction to that effect in the charge of the Court below. In disposing of the questions relating to the sale by the Commissioners to Henry Deringer on the 8th of July, 1826, too much significance was attributed to lapse of time. If possession of the land had been taken by Deringer, the long period intervening between the date of the sale and the date of the trial, would perhaps have afforded, with the other evidence in the cause, ground for assuming that the formal provisions of the Act of 1824 had been complied with, as a presumption of law. It certainly would have warranted a charge that such a compliance ought to be inferred by the jury as a presumption of fact. But mere lapse of time," it was said by LOWRIE, C. J., in Alexander v. Bush, 10 Wright, 62,"proves nothing in favor of a title, for the older it is, without any claim being made under it, the weaker it is, and the weaker are all presumptions in its favor." It is true that Read v. Goodyear, 17 S. & R. 350, decided that where land is sold for taxes and the warrantee makes no claim for twenty-one years, and pays no taxes during that time, it may be left to a jury to presume ouster or abandonment by him; and that length of time strengthens a title founded on a sale for taxes In Sorber v. Willing, 10 Watts, 141, however, the facts in Reed v. Goodyear were said by GIBSON, C. J, to have been indistinctly stated, and among them was the omitted fact that there had been an entry by the purchaser at the treasurer's sale. The curative provisions of the Act of 1815, were held in Jenks v. Wright, 11 P. F. Smith, 410, not to be applicable to a sale by county commissioners, under the Act of the 29th of March, 1824. The evidence in this case did not warrant the assertion by the Court of the regularity and validity of the sale to Deringer as a presumption of law. But there was proof of the pay. ment of taxes from 1826 to 1840. At the time of the sale, the land was the property of the county, and as such the Commissiouers conveyed it. The deed executed by them on the 5th of June, 1827, recited the performance of all the conditions requisite to support the title they conferred on their grantee. The proceedings were spread upon the county records, and their regularity has never been assailed by the county authorities. All these were facts for the consideration of the jury, and under them they should have been left at liberty to find whether the directions of the Act of Assembly had been duly pursued, and whether the title of Deringer was therefore valid. With the remark that the evidence, offered by the defendants to prove that all adjournments of Treasurers' sales have been noted on the sales-book since the year 1838, was irrelevant to any apparent issue in the cause, what has been said disposes of the first six specifications of error. The general offer by the plaintiffs, to which the seventh assignment of error relates, was unobjectionable. Under it there was perhaps no necessity for showing the date of the purchase of the four tracts other than the one in controversy belonging to Deringer, and the deeds for them, but this could not have led to any confusion or embarrassment on the trial. The five tracts were treated as a single body of land, and each tax receipt related to them all. The evidence affecting the Samuel Rope tract involved a reference to the others, and it was admissible, as evidence is always admissible of extraneous facts, with which the subject-matter of a suit is inseparably connected. The eighth, ninth, twelfth, and thirteenth specifications are founded on the rulings of the Court in regard to the sale of the land in controversy by the treasurer to the commissioners in 1828 for the taxes of 1827. The deed recited the sale to have been made on the 25th of November, 1828. If it was valid, it divested the title Mr. Deringer had acquired by his purchase in 1826. and an outstanding title, as to him at least, was subsisting in the County of Lu zerne when the cause was tried. The books showing the assessment, and the deed were given in evidence by the defendants. In their rebutting case, the plaintiffs showed what is called in the record a Commissioners' Transcript Book," containing a charge against Mr. Deringer's five tracts for taxes for the years 1827 and 1828, amounting to $2958, the charge against the Samuel Rope tract being $5.58, made up of county and road taxes, each $1.86, for 1827, and $1.86 road tax for 1828. At the foot of the statement there is a credit of the entire amount of the charge dated the 10th of January, 1829. The treasurer's sale book for the year 1828 was also produced by the plaintiffs, and the entry of the Samuel Rope tract on that book was permitted, under exception, to be given in evidence. The words "paid before sale" were twice written, on the right and left margins of the entry. In the commissioners' book of county rates and levies for 1826, 1827, and 1828, the tract had been charged with taxes amounting to $3.72, and in the commissioners' list to the treasurer for 1826 and 1827. a county tax for 1827 of $1.86, and a road tax for the same year and of the same amount were stated to be due. A pen appeared to have been drawn at some time through the figures" 186" in both places where they occurred in this last book. This evidence was submitted to the jury on the question of the payment of the taxes of 1827 before the sale to the commissioners. The regular, authorized, and authentic entry in the transcript book showed the payment to have been made on the 10th of January, 1829. The very language of the entry on the sale book implied that it was made after the sale had taken place. It is said to be in the hand-writing of Zurah Smith, the treasurer at the time. Let that be so, and it does not help the use of an unwarranted and illegal endorsement on a public record as evidence of a substantive and material fact. The entry was out of time and out of place. It was made after the sale, to which the treasurer had certified by his solemn deed. It was in contradiction of the explicit written statement of the credit appearing in the transcript book. It was not an act done in the course of the current business of his office-it may have been made years after the transaction; from his letter to Deringer, it is not credible that he made it before the 4th of February, 1829, and it depended for its accuracy perhaps upon the recollection and declarations of other parties, or upon his own memory at the very best. No direct authority is found upon this question. In Kennedy v. Daily, 6 Watts, 269, all that was decided was, that where the word “ paid" appeared on the margin of the entry of a tract of land in the treasurer's sale book, the purchaser could prove that the word was written after the sale, and that the same entry was usually made after the sale as well as before. In Ankeny v. Albright, 8 Harris, 157, the letters "pd." on the treasurer's book were held to be not evidence, of themselves, that the taxes were paid before the sale. In the last case two former county treasurers testified that they always marked the taxes in this way after the land was sold and the money paid by the purchaser, and that they always marked them the same way when paid at any time. But it is manifestly essential to the security of property that muniments of title and public rec Common Pleas-Law. ords should be free from the bazards that would be May 4. STETLER V. PHILA. AND READING R. R. Co. Pleading-Demurrer-Plea of property as bailee, must state who is owner. Replevin. Demurrer to plea. selves as bailees for transportation and carriage." Defendants pleaded, inter alia," property in them The demurrer alleged the plea insufficient, because-(1) it did not state for whom defendants were such bailees; and (2) it did not allege ownership in such person. Stark, for the demurrer, cited Hildeburn v. Nathans, 1 Phila. 567. THE COURT allowed the defendants to amend their owners." The admission of the evidence to which the tenth, eleventh, and fourteenth assignments of error apply, was warranted by the authority of McReynolds v. Longenberger, 7 P. F. Smith, 13. Other questions aside, the sale in 1834 to Charles S. Coxe vested the title to this land in him if the taxes for the years 1832 and 1833 were not paid. The plaintiffs were permitted to prove the existence of receipts for taxes from 1826 to 1840 by witnesses who had seen them, the loss of the receipts themselves being alleged. While such testimony is admissible, it is exceptional plea by averring that "the defendants were bailees in its character, and is capable of producing unjust for the Shenandoah Valley Bank, who were the results. It should be submitted to a jury under carefully guarded and measured instructions as to the precise point in dispute. That point here was the payment, before the sale of 1834, of the taxes for the two preceding years. As the cause must go C. P. No. 1. back on other grounds, it is not necessary to express an opinion as to the sufficiency of the preliminary proof that was made of the search for, and loss of, the papers. But Dr. Clark, one of the executors of Henry Deringer, had possession of the key of the closet containing the receipts for more than a year, and not only had access to them, but had charge of, and was responsible for, them. The necessity for Some examination of his papers would seem clear. No evidence in the record traced these papers to the hands of the other executor, Theophilus Deringer. Still an application for such documents to executors or their representatives is in all cases a proper and safe precaution. Everything involving substantial error that was embraced in the part of the charge to which the fifteenth assignment applies, has been adequately discussed. Judgment reversed, and venire facias de novo awarded. (Opinion by WOODWARD, J., in full.] KRAUT V. Fox. April 24, '75. Costs on appeal-Decree for costs is for all the costs of the suit-Practice. Appeal from the taxation of costs by the Prothonotary. In Kraut's Appeal, 21 Smith, 67, a decree was made that the costs of this appeal be paid by the appellees." On Feb. 6th, 1875, a petition was presented to the Supreme Court asking to have the record of the above case returned from the Court below, and to amend the decree by requiring the appellees to pay all the costs incurred in the proceedings. This was refused. [See WEEKLY NOTES, 211.] The Prothonotary taxed the costs, and charged in the bill all the costs from the beginning of the suit, amounting to $93.63. E. H. Weil, for the appellant, said the decree was only for the costs of the appeal, and that they were only $10. He also said that the former Prothonotary of the Supreme Court informed him that the practice of the Supreme Court never had been to make the parties pay all the costs. R. P. White, contra. C. A. V. May 1. THE COURT. As this was a judgment against the successful party in the Court below, the rule that the winning party should have costs, i. e., all costs, should apply. Appeal dismissed. [As to presumptions arising from lapse of time being in favor of the party in possession, see Hillery v. Waller, 12 Vesey. 239, 265-269; Garrard v. Tuck, 8 M. G. & S. 231 Atty. Gen. v. Ewelme Hos., 17 Beav. 366; Lyon v. Read, 13 M. & W. 303; Donaldson v. Phillips, 6 Har. 170; Millete v. Millett, 11 Q. B. 104; McLaughlin v. Kane, 9 Wr. 113; Allen v. Smith, 1 Leigh, 231; Waldron v. Tuttle, 3 N. H. 340; Wilkins's Heirs v. Huse et al., 10 Ohio, 139. As to strict construction of statute, see Dwarris on Statutes, 693 703-707, Eng. ed. of 1830. As to omission of a clause occurring in another statute in pari materiâ, see Moser v. Newman, 6 Bing. 561, R. v. Skone, 6 East, 518; Dwarris, 711. As to power of courts to bring a mischief within equity of the statute where the remedy is not within the words, see Brandling v. Barrington, 6 B. & C 475, R. C. P. No. 1. v. J. Powell, 4 T. R. 572 As to right of party to contradiet his own evidence, see Starkie, 244. As to weight of a mere entry, see Starkie, 84, 89 note 1, Keating v. Williams, 5 Wa. 382. As to necessity of search for lost documents, see Starkia, 530, 533-4-5, note p. 531: Dreisbach v. Berger, 6 Wa. & S. 564.] VOL. I.--26 Quo warranto-Defective return-Alias writ not allowed where defendant's term of office expires before a trial could be had-Practice. Rule to show cause why an alias writ of quo warranto should not issue. Defendant was elected solicitor for a building | C. P. No. 2. THOMAS V. STOCKER. May 8. association, but his election was contested by Practice-Opening judgment— Want of merits in another, who claimed to have received a majority of the votes cast. Upon application to the Court a writ of quo warranto was allowed in January, and served upon defendant, but the service was set aside because of a defective return. [See 1 WEEKLY NOTES, 313.] Douglass, for the rule, argued that an alias or pluries writ of quo warranto should be allowed, by analogy to the practice in writs of summons, etc. W. B. Mann, contra. The parties and their counsel have been guilty of laches, and the writ should not be allowed at this late hour. The first writ was issued in January. On June 5th another election will take place, and, even if the writ is allowed, there can be no hearing of the case until long after that time; and after the term of office is ended, there can be no judgment rendered. Commonwealth v. Athearn, 3 Mass. 285. The writ will not be granted when it cannot be brought to trial before the expiration of the office to which it refers. Commonwealth ex rel. Munderbach v. Reighart, 14 S. & R. 216. People v. Sweeting, 2 Johnson, 184. Douglass, in reply, said the delay was from the other side, and also because of the defective return of the sheriff. As to the term of office being cited the Act of 13 April, 1840, which provides for such a case. nearly expired, he C. A. V. defence. Rule to open judgment Assumpsit on a book account. Judgment was entered for want of an affidavit. In support of this rule there was an affidavit by G. H. McCabe, Esq., of counsel for defendants, to the effect that he had requested one of plaintiff's counsel not to take judgment for a few days, but that his colleague, not knowing of this arrangement, took judgment. There was also an affidavit by defendants to the effect that they were charged with flour purchased from plaintiff which turned out to be of an inferior quality, and only worth half the amount charged. THE COURT said, in the absence of any allegation of fraud or warranty, the defence was not admissible. Rule discharged. LONGEST V. SOBEY. May 8. C. P. No. 2. May 8. C. P. No. 2. ESTATE OF MARY FOX. Assumpsit. The following copy of account was consideration of the sum of $916.66, lawful money to filed. them in hand paid by Jeremiah Hacker, trustee, therein described to Jeremiah Hacker, his heirs and etc.," conveying the moiety of a certain ground rent assigns; that said Hacker purchased and paid for the said moiety of ground rent with the moneys of petitioner; that said Hacker has since died, leaving a will, and making his wife, Buelah M. Hacker, residuary legatee: Sale of ground rent by petitioner, and inability to convey a marketable title; and praying an appointment of trustee in place of said Hacker, deceased. Gregory, for the petitioner, presented also the answer of Beulah M. Hacker, setting out that she is widow of said Hacker and one of executors of will; that she has read said petition and believes the facts therein stated to be true; and that she is residuary legatee of said Hacker, and if said ground rent belonged to his estate, she would be entitled thereto. Trustee appointed us prayed. C. P. No. 2. May 8. C. P. No. 4. In re MCMULLIN'S PETITION. Satisfaction of lost mortgage. Petition of William McMullin, setting out that a mortgage was made to him by Edw. Jordau in 1841; that the said mortgage had been paid, but that it was lost, and the Recorder of Deeds declined to permit petitioner to satisfy it of record without producing the paper itself; and praying a decree authorizing and requiring the Recorder to permit satisfaction to be entered in accordance with the Act of 10 April, 1849, 12. Stover, for the petitioner, produced a search by the Recorder of Deeds, showing that no assignment of the mortgage appears of record; and an answer of the owner of the land joining in the present application. THE COURT ordered notice to be given to all parties interested, by publication for two weeks in the Legal Intelligencer, and five times in two daily papers of general circulation. May 1. WINSOR V. WAREHOUSE Co., POWERS, et al. Action on foreign judgment-Sufficiency of record filed to require the filing of an affidavit of defence. Rule for judgment for want of sufficient affidavit of defence. This was an action of debt on a judgment of the Supreme Court of New York. The record as filed comprised two agreements signed by the attorneys of the defendants in the original suit, withdrawing their answers and consenting to the entry of judgment, and a transcript of the entry of judgment signed by the clerk of the Court. The defendant, Powers, filed a suggestion that "he is advised by his counsel and therefore suggests that the plaintiff is not entitled to a judgment for want of an affidavit of defence." Valentine, for the rule. Harrington, contra, argued that the record as filed was insufficient, and that it was not certified in accordance with the Act of Congress, and cited— Lothrop v. Blake, 3 Barr, 483. Van Storch v. Griffin, 21 P. F. Smith, 243. Valentine, in reply, cited Moore v. Fields, 6 Wr. 467. THE COURT held that the record as filed was sufficient to compel the filing of an affidavit of defence; the same strictness not being required with regard to certification in this case as when the record is offered in evidence on trial. Rule absolute. The depositions showed that the premises were described in the Legal Intelligencer as fronting on Sergeant Street, whereas in reality they front on Fox Street, a much smaller street than Sergeant, and this would materially affect the value of the property. In the handbills and advertisements the prem C. P. No. 4. ises are described as erected on the rear of lot fronting on Sergeant Street. Edmunds, for rule. The misdescription in Legal Intelligencer is sufficient to avoid the sale, particularly if it is shown to be such as would affect the price. Emlen, contra. The handbills describe the premises correctly. The Legal Intelligencer is merely a note of the sale, and an error therein, especially when immaterial as in this case, is insufficient ground for setting aside a sale. Building Asso. v. Silvey, 4 Philada. Rep. 17. Rule discharged. May 1. JACKSON V. GARRIGUES. Assumpsit on a book account, consisting of a number of entries, all of the following character:1875, Jan. 14, George L. Garrigues, $1.50. 1.00. Printing headings. 1875, Jan. 16, George L. Garrigues, Printing on bill head. . The affidavit set forth that the defendant "is advised by counsel, verily believes, and therefore avers that the copy filed is not such a copy of book entries as entitles the plaintiff to judgment for want of an affidavit of defence " Crawford, for the rule. N. H. Todd, contra, cited- The insertion of the date, which had been omitted, did not constitute a different date, and is not a material alteration, in the absence of any allegation of $625. defence on the merits. He cited Byles on Bills, *255. Marshall, contra. Rule discharged. Endorsed, "Albert R. Schofield, 44 Aug. 22, 1874. ALBERT R. SCHOFIELD." |