Turner against Waterson, 4 Watts & Serg. 171

The opinion of the Court was delivered by Sergeant, J. — To show the regularity of the actual proceedings, we are of opinion that the evidence offered by the plaintiffs ought to have been admitted. The deed, it seems, recited that the land was sold for $67.94, and that the tax and costs were $21.45. According to this, the bond being only $26.52, instead of $46.49, was for less than the surplus.

But the plaintiffs offered the treasurer’s sale list of the year 1838, and also the evidence of the treasurer, to show the recital to be a mistake; that the sum stated in the deed was an error, and that the. bond was for the exact amount of the surplus dué. The recital in a treasurer’s deed of the amount for which the land was sold, is secondary evidence, and when the original documents are lost or destroyed, it may supply their place.

But where they .exist, they are the best evidence of the facts, and where they are defective,, parol evidence is of equal validity to the recital, and they may be admitted to show the recital a mistake. The owner of the land is in no way affected by the contents of the recital. If the bond is really for the surplus, that is all in which he is concerned, and it is all the purchaser is bound to look to. There was error, therefore, in rejecting this evidence. 2. The defendants showed a title by settlement made by William Townley, and conveyed to them on the 18th of July 1836.

This, it would seem, embraced the locus in quo. The plaintiffs offered to show a title or claim of Philip Clover to 30 acres, part of this 100 acres, under a warrant and survey to him in 1831, and that the defendants resided thereon and .claimed under legal title from Clover. This, we think, the court properly rejected as leading to nothing. The defendants might buy an outstanding claim on a‘ third person, whether good, bad, or indifferent, without being thereby reduced to the necessity of surrendering their other title. The doctrine of merger has no application.

Nothing is more common than to buy in outstanding claims, to get rid of vexation and trouble, or to fortify a subsisting title. It would be hard to construe such purchase as destroying the subsisting title. 3 & 5. In these points, also, we think there was no error. The warrant of Robert Morris of the 5th of March 1793, conveyed'no right to any specific land till surveyed. For thirty-eight years nothing was heard of it. In the meantime, the settlement of Townley had been commenced on the 100 acres, in 1829, and was continued.

The Morris warrant was not surveyed until the 15th of October 1831, and then it was surveyed for Philij^CIover and Hugh and George Carson, whose title, (or some of them), the defendants have. They placed the warrant in the hands of the surveyor, employed him to make the survey, and paid him all he ever received; and there,is no evidence of any act done by the warrantee or other person on his behalf, in respect to the warrant, until the year 1839, when the devisees under Morris conveyed to the predecessor in title of the plaintiffs, Mr Heath.

The court below, under these circumstances, instructed the jury, that they might presume a sale of the warrant by Robert Morris, or the devisees under him, to Clover and the Carsons. Superintending the survey, or paying the fees, has generally-been deemed sufficient evidence of ownership of an application or warrant, unless rebutted by evidence that the person so superintending or surveying acted as agent, or unless possession or some act of ownership appears in favour of the person in whose name the application was entered or the warrant was issued. Campbell v. Galbreath, (1 Watts 70); Cluggage v.

Duncan, (1 Serg. & Rawle 117); and payment of the purchase money when the warrant was issued, is not conclusive to show ownership in the person paying, for the money may have been furnished by another. Forty-six years had elapsed in 1839, when the first step was taken in the Morris claim by a conveyance to Heath, and in the meanwhile the survey for Clover and the Carsons had been made in 1831, and a conveyance executed in 1836 from Clover to Richards and Chapin.

After this lapse of time, without any circumstances to rebut it, the right of the owner, as against an intervening survey and claim, may fairly be considered as sold or abandoned. 4. The same observations apply to this error which have been made on the 2d error. 5. Heath was called by the plaintiff after having been twice examined by the defendant, and was rejected as interested. But after being called by the defendant and examined as a witness, it would not lie in defendant’s mouth to object to him as incompepetent. See Southwark Insurance Company v. Knight, (6 Whart. 330); Stockton v. Demuth, (7 Watts 39).

In this, therefore, there was error. For these errors the judgment is reversed. Judgment reversed, and a venire facias de novo awarded.