[Lewis v. Bradford.] were making, without any claim of title or objection on the part of Lewis." To which evidence the plaintiff's counsel objected. The court admitted the evidence, and at the request of plaintiff's counsel, sealed a bill of exceptions. And thereupon the counsel for defendant gave in evidence, in substance as follows, to wit: That when Bradford purchased the place, it was out of repair. That he cleared and sowed 6 acres of new ground, put up the fences, repaired the barn and saw-mill, cut the brush on a pasture lot, made some new fence, &c.; and then called Adam Wilson, who testified as follows: "I called with Mr Bradford at the place, at Mr Lewis's house. Bradford told him he came to look at the place. Lewis said he would as lief he had it as another; but he must be sure to get a good title if he bought. Lewis said nothing else to him but what I have mentioned, that I remember. It was while snow was on the ground, and I think we went up in a sleigh. I went up with Bradford. They did not appear to be strangers. expect they had met at some time. I did not hear Bradford ask for any explanation. I was not with them all the time. I think they went out together-whether to the mill or not I cannot say. I And the counsel for the said plaintiff then called Eliphalet Mason, who testified as follows: Mr Bradford called on me soon after he had purchased, and I understood from him that Elliott and Keeler had given him a history of all Mr Lewis's claim. I can't say whether he purchased or not when he then called on me. The plaintiff's counsel then offered to prove by said Eliphalet Mason, that prior to Bradford's purchase of the land in controversy, to wit, in 1835, he was employed by the plaintiff to search for papers preparatory to commencing a new ejectment for the recovery of the land in controversy. That he did make such searches, and acted under such employment, by said Lewis, and was employed in said capacity, down to some time in the year 1837. That in the spring of 1837, the first time he ever saw defendant, Bradford, he called upon the witness, and said he had been sent to him by Elliott and Keeler, for information respecting Lewis's claim. That, at that time, he informed defendant that Lewis intended to commence a new ejectment, was making preparation therefor, and if Lewis could make certain proof, he would, in the opinion of the witness, recover the land. The court rejected the evidence, and plaintiff's counsel excepted. William Keeler was then recalled. I had nothing to do with the sale of Potts to Bradford. George A. Mix made the bargain with him. My agency was with regard to the renting to Lewis, and continued such agent up to the time the place was sold. Potts afterwards recognized it by settling with me with regard to it. The plaintiff's counsel then offered to prove, by said William [Lewis v. Bradford.] Keeler, that during the negotiation between Mix and Bradford, for the sale and purchase by Bradford, of the land in controversy, and before the purchase was concluded, he informed said Bradford that the plaintiff, Lewis, had a claim to the land. Rejected, and exception taken by plaintiff. The plaintiff prayed the court to charge the jury, "That if the jury find that the plaintiff was in possession of the land, at the time of the purchase of the land by Bradford, such possession was notice to the defendant of Lewis's claim to the land." The court answered this point by instructing the jury, that Lewis at that time being in possession, as the tenant of Bradford, his possession was not notice of any other title than that which he derived under the lease. The opinions of the court, as contained in each of the exceptions to the admission and rejection of evidence, and their answer to the plaintiff's point, were assigned for error. Baldwin and Cuse, for plaintiff in error. Williston and Overton, for defendant in errror. The opinion of the Court was delivered by HUSTON, J.-The plaintiff in this case showed an improvement by actual settlement on the land in question, regularly transmitted, and continued from 1794 till 1817. At this time an ejectment was served at the suit of William Potts on Daniel Gilbert. By the testimony in this case, Gilbert had sold to Lewis, in 1814, and in the assessment of that year, the land is assessed to Lewis, and Gilbert removed to another lot a few miles distant. There was a recovery against Gilbert in that suit, in 1818, but no writ of possession. In 1830, a scire facias issued against Daniel Gilbert and tenants; Gilbert had been dead many years. Some question was made, as appears by the charge of the court, whether either the ejectment or scire facias were served on the person in possession, and there is no error in the charge in this particular. If the scire facias was not served on Lewis, it would strengthen his case. The plaintiff here showed not only the above right by actual possession, continued more than twenty-one years, but also traced the title through James and William Lewis, to the plaintiff, T. H. Lewis, who, in 1828, became the purchaser of a warrant and survey from the heirs of Stewart, and the plaintiff produced in evidence that title, as follows: June 25, 1773, warrant to Samuel Clark for three hundred acres of land, on the south side of Towanda creek, at the junction of a run with the creek, to include a tree marked A. B., that stands in the fork about four miles from the river, in the county of Northumberland. September 20, 1773, receipt of Edmund Physic to Samuel Clark, for 24 pounds 15 shillings, the purchase-money. September 20, 1773, deed poll from Samuel Clark to Samuel Pleas [Lewis v. Bradford.] ants. February 17, 1775, assignment of this to John M. Nesbit. March 15, 1775, assignment to Charles Stewart. September 24,1803, survey by T. Sambourne, deputy surveyor, of three hundred and twenty-five acres, in the fork of Towanda creek, about five miles from the northeast branch of the Susquehanna, &c., &c., with a note thereon, that it interfered with a survey made on a warrant to Amy Hooner. Accepted in surveyor general's office, April 3, 1804. The death of Charles Stewart, in 1800, was proved, and that he left four children: 1. Martha Wilson, a widow now living; 2. Mrs. Collman, twice married, now dead, leaving one son, F. Stranahan. 3. Mrs. Mary Wilson, now dead, leaving six children. 4. Samuel R. Stewart, now dead, leaving two children, Charles and Robert, now living. Then the plaintiff read a deed, January 25, 1824, F. Stranahan and wife to Martha Wilson; October 15, 1822, Charles S. Stewart and wife to Martha Wilson. And offered to prove by parol, that Mrs Martha Wilson for many years has acted as agent for the other heirs, in leasing and selling the lands of the estate, and that the other heirs have acquiesced in, and confirmed her acts, &c. The court rejected this offer. A power to make a lease under three years, or to pay taxes, &c., may be proved by parol, but a power to sell, in fee, cannot be so proved. The court was right; an express recognition, and a receipt of his proportion of the purchase-money, knowing it to be the purchase-money, might be given in evidence under certain circumstances, as a receipt for price of land on a parol sale may be. July 6, 1822, power of attorney, Martha Wilson to Jonathan Stewart, to sell lands, &c., &c. February 23, 1828, article of agreement, Jonathan Stewart, stating himself to be agent for the heirs of Charles Stewart, with the plaintiff; consideration 600 dollars. The plaintiff then showed assessment to Daniel Gilbert of thirty acres improved, two hundred and seventy woodland, and sawmill, in 1812; and the same in 1813. In 1814, the same property is assessed, and stated to be transferred to James Lewis. The law directs the assessor to notice any transfers of possession each year. They also showed assessment of some property, together with some adjoining wildlands, to the Lewises, till the plaintiff was dispossessed, and proved that the land had been taxed and taxes paid in Luzerne county in 1809, before Bradford county was created. The defendant gave in evidence-July 20, 1784, warrant to Amy Hooner for three hundred acres of land in Nittany valley, to include the north branch of Spring creek, about three miles westward of land this day granted to Mary Hooner, in the county of Northumberland. August 10, 1786, a survey of three hundred and six acres on the south side of Towanda creek, in Luzerne county, or Northumberland, with a note, that the land which this warrant was originally intended for, is included in old surveys. It was admitted here, that it called for land at least one hundred [Lewis v. Bradford.] miles from where it was laid. There is no case in which it has been decided, that a warrant removed one hundred miles is in a worse situation than if removed one mile or ten miles. I apprehend, however, it must be surveyed within the district of the deputy surveyor to whom it was directed. On 2d January 1788, it was returned to the office of the surveyor-general. September 26, 1800, patent issued to Stacy Potts, (this was admitted except the recital of the intermediate conveyance from Amy Hooner to Stacy Potts.) January 1, 1810, deed from Stacy Potts to William Potts, George Sherman, Joseph Potts and Stacy Potts, Jr. (his sons and son-inlaw); consideration 600 dollars. The defendant then offered the record book from the recorder's office of Bradford county, containing the record of a deed, March 18, 1837, from the last named grantees to defendant; and offered to read the same in evidence to the jury; this was objected to; and admitted, and formed the second bill of exceptions to the evidence, to which I shall recur after stating the defendant's title. He also showed a record of a suit in the circuit court of the United States for the district of Pennsylvania; the much spoken of case of Lessee of William Potts v. Daniel Gilbert, found in 3 Wash. C. C. 475 Rep.; it was returnable at April session 1817; the old form of ejectment, supposed a previous writ, which in fact was never issued, on which the declaration was founded; tested in November 1816, returnable to April 1817, and a verdict and judgment for the plaintiff, on which no further proceedings were had until a scire facias post annum et diem, returnable to April 1832. It issued against Daniel Gilbert and tenants; judgment for want of appearance, and a plea and writ of habere facias possessionem issued on 4th February 1833, and returned " possession delivered." As there was no objection to this record, it was not brought here, and we do not know on whom it was served. The proof was that Daniel Gilbert had been dead many years, and that Elliot and Whitten were in possession as tenants of Lewis; whether it was served on them, or Lewis had any notice of it, we do not know. I have spoken of these proceedings before. I shall go back to the two points as subject of dispute, before I notice what took place after the marshal delivered possession. And the counsel of the plaintiff insisted the patent did not vest title in Potts, because no receipt for the purchase-money was produced. This reason will not support the objection; since the opening of the office after the revolutionary war, no warrant could legally issue until the purchase-money to the state was paid, and warrants and surveys have been constantly read without producing the receipt for the purchase-money. It is only where two persons contend as to their title to a warrant, or where an actual settler or other person in possession, is put in jeopardy by some person claiming under a warrant, that it becomes necessary for the party claiming it to show some legal or equitable right to that war [Lewis v. Bradford.] rant. The production of a warrant is prima facie evidence that the purchase-money has been paid to the state. It may be some presumptive evidence, that it was paid by the person to whom the warrant was granted, or by him in whose name it was granted, more correctly speaking; but, as in this case, it is no evidence that the purchase-money on the warrant to Amy Hooner was paid by Stacy Potts. The presumption being that it was paid by her, Stacy Potts must show a conveyance from her, or that he himself paid the state for that warrant, or that he has a conveyance from her or from the person who did pay for it. The patent from the state to Stacy Potts is good for all right the state had at its date; but it is not good against Amy Hooner, unless the patentee can show a right from her; nor is it good against any person who in any way, either by warrant or settlement, had acquired a warrant or a right to a warrant before the date of that patent. See Penrose v. Griffiths, 4 Binn. 231, and the opinions of Tilghman and Yeates fully on this subject. The dissenting opinion of Bracken-. ridge arose from losing sight of the principle, that a defendant is safe until the plaintiff show an unexceptionable title; and in Bonnet v. Devebaugh, 3 Binn. 175, and following pages, the right of Croyle was saved by his actual possession before the patent was granted to his adversary. The patent, then, was not satisfactory, but this, not because the purchase-money had not been paid to the state, but because there was no title from the person who paid it to Stacy Potts; and such seems to have been the opinion of the court, for the recitals were not admitted as evidence against Lewis, whose title commenced prior to the patent. The next exception was as follows:-It was admitted that the copy of a deed from the record book was evidence, but denied that the book itself, when brought into court and read, was evidence. Our first act on the subject is that of 1715, which says, "there shall be an office of record in each county of this province, which shall be called and styled the office for recording deeds." After directing the appointment of recorders and mode of proof or acknowledgment of deeds and the effect of recording, it provides in the fifth section, "and the copies or exemplifications of all deed so enrolled, being examined by the recorder, and certified under the seal of the proper office, (which the recorder is hereby required to affix thereto,) shall be allowed in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law, as the original deeds themselves," &c., &c. This act and the construction of it, have come down to us from the early part of last century, and it would be strange, but not useful to change, and in fact destroy it by an affectation of grammatical accuracy. It was argued as if copies of the record from that book were made evidence; so they are, and must be, or the act is useless; but the words of the law are, that copies of the deeds, &c., are to be evidence. Now the record book is a copy of S |
