Harper against M'Keehan, 3 Watts & Serg. 238

The opinion of the Court was delivered by Huston, J. Several points have occurred in this case which are new, and some not new. Since the trial of the cause, the counsel of plaintiff has discovered some facts relative to defendant’s title, not known or not made known to the court and jury at the trial; and a great part of his argument here was grounded on one of these facts—i. e., the right of G. Loque to part of the land claimed by defendant. We cannot take into consideration any facts not known and passed on at the trial.

Much testimony was given as to the residence of Hamaker, and argument as to the effect of it. The deeds and parol evidence without contradiction showed that Hamaker claimed a designated quantity of land under a deed; that part of the land inclosed within his boundaries was within'the survey of John Loque, and his house was on that part; but that neither his house or improved land or lines, interfered with the claim of defendants, but was separated from defendant’s claim by a marked line called for by the deed of Hamaker and the deed of defendant. The case of Campbell v.

Wilson, (1 Watts 503), and some subsequent cases, decide and settle that his possession on an adjoining tract, or even an interfering tract, distinctly separated and designated, will not avoid a sale of another tract as unseated, though the claim of the possessor may interfere with the adjoining unseated tract; but that the purchaser of the unseated tract may hold what is without the boundaries of the land so in possession of another. All the testimony as to whether Hamaker ever was under Woodburn, and if so, how ? was left to the jury and decided on by them. The case of Morton v.

Harris, (9 Watts 319), was much urged, but it is sufficient to say it is not this case. Defendant showed a deed from G. Loque in 1811 for 352 acres by courses and distances, and also a deed from Wolff for 49 acres adjoining the other; and it was in proof that soon after a surveyor ran round the two, including them in the same survey. It was in proof by a person present at the survey and others, that this land was known as M. Irvine’s land ever since, and was assessed and taxed and sold as the land of his heirs, and as one tract.

Now, this is very different from assessing 4 separate tracts of different quantities, and setting a different value and laying a different tax on each, and then selling the whole 4 as one tract of a quantity made by adding the acres of the whole 4 together. The Act of 3d of April 1804, which is the basis of our system of taxing unseated land, in its first

section directs minutely that the name of the warrantee as well as owner (if the owner is known), the quantity of acres surveyed, the persons on whom it adjoins, and the waters on which it lies, shall be returned to the commissioners. When sales were made and the title to purchaser disputed, the attention of the court was called to the provisions contained in other sections of the Act, and when they had not been complied with, or the purchaser could not prove in court that they had been complied with, the sale was declared invalid, and nothing was said about the provisions of the first section; besides the fifth

section of that Act vests in the purchaser all the estate “ that the real owner or owners thereof had at the time of such sale, although the land may not have been taxed and sold in the name of the real owner.” We have had no decision or none applicable to this case, on this section. Luffborough v. Parker, (16 Serg. & Rawle 360), turned on advertising as the property of Nathaniel Luffborough, when the owner’s first name was Nathan. In Burns v.

Lyon, (4 Watts 363), we have a case which, though not cited in the argument, has some bearing on this case, and which seems to have been in the mind of the court in deciding this cause. In that case, from the report, no title was shown in any person as owner of the land. It was assessed as 200 acres unseated, being part of a tract in possession of J. Dowling. It would seem Dowling did not claim the

part in dispute. After the sale, some persons went into possession of the 200 acres sold, it would seem, without title; against these the alienee of the purchaser at commissioners’ sale brought ejectment and recovered; and it was decided that it must be left to the jury to decide, whether the land claimed by the purchaser was the same which was assessed and sold; and they found for the purchaser at tax sale. It is true that the point, that no owner was named in the assessment and sale, was not made: if made and decided, it might rule this case. I know of no decision applicable to this case as regards the construction of the fifth

section of the Act of 1804—“ shall vest in the purchaser all the estate of the real owner, though not assessed and sold in name of real owner.” Lands were originally assessed in the name of some person: does the law mean that the title shall pass, though assessed and sold in the name of a person who was not the owner, provided it is found to be the very land which was assessed and sold?—if it do not mean this, it is nearly useless as a provision in favour of the purchaser.

Again, it happens that a tract of land is covered by two warrants; the older warrant and best title is unknown to the assessors and commissioners, but they know of the younger title, and tax and sell the land, designating it by that title; the land under that title pays ' its proportion of the county expenses: can the holder of the oldest title, who has paid no taxes, recover by saying it was taxed and sold in the wrong name? The construction of this

section is important; it was not put in the court below, nor argued here, and perhaps must eventually decide this case. This tract was surveyed on a warrant to John Loque in 1794. There was a time when there was a presumption that the person to whom a warrant was granted was the owner; but since 1792 the chance is perhaps 1000 to 1 that the person whose name was used knew nothing about it and had not a particle of interest in it. We only hear of John Loque in the warrant and survey, and tax and sale. George Loque, a man well known, sold a part of this tract to Wolff in 1803, another part to Irvine in 1811.

Whether frcim want of inquiry or because the inquiry was unsuccessful, it is so, that no proof was given that G. Loque entered the application or paid for the warrant or for the survey, nor any conveyance to G. Loque* The deeds from G. Loque were offered and objected to; but received, not as evidence of title, but along with other evidence to show what land Mr Irvine in his lifetime, and his heirs since, claimed. There was no error in this. In M’Koy v.

Dickinson College, (4 Serg. & Rawle 302), and (5 Serg. & Ramie 254), a defendant was permitted to give in evidence a deed admitted to vest no title, to show how he claimed and the extent of his claim. There was no error in saying that if Irvine at different times purchased different parcels of contiguous land, at one time 49 acres, and again 352 acres, and called and held it as one tract, and it was taxed and sold as one tract, .this alone would not invalidate the sale. Onq point remains. M’Keehan took his deed from the treasurer, stating that he held it in trust for the heirs of. M.

Irvine; he did not give his bond for overplus in trust; his bond recited that Ke had taken a deed in trust, but the bond bound himself and for seven years the land. It was held that a man who had obtained a patent for land, and suffered it to be sold as unseated and purchased himself, did not improve or strengthen his title.

Where, the land of minors is selling for taxes, and a friend of the family buys it in with money furnished by the family, this may apply; but if he buys with his own money and gives his own bond for part of the purchase money, and takes the title in his own .name as the best way of securing himself, it is a different matter; and it is immaterial whether he has the declaration of trust put in the deed to himself, or gives them a declaration of trust on a separate paper.

Until they come of age, it is unknown whether they will accept the purchase and repay his money, or refuse to-pay and leave the land his; and in the mean time his title as to all the rest of the world is the same as if no trust were expressed in it. How the facts, in this case, were as to this matter, we know not. And I am not prepared to say the title of defendants is void on this account, on the facts in evidence.

In many cases a purchaser of large bodies of unseated land has no deeds poll from persons whose names were used in the warrants, though he has a regular title from the person who entered the warrants and paid for them, and who paid surveying fees. And in such cases the owner has suffered the tracts or some of them to be sold, and taken a treasurer’s deed, supposing it would supply the place of a deed poll from the warrantee, and intending it for no other purpose than to unite the formal legal title to the equitable one. In the land office, for many years, they have granted patents on such treasurers’ deeds.

And I am not aware that, in this point of view, there is anything contrary to law or justice. On the facts in this cause, and the law as laid down on the points proposed, we see no error. Judgment affirmed.