Mr. Justice Sterrett
delivered the opinion of the court,
The land in controversy was claimed by the plaintiff under three separate titles, one of which was based on the deed of Henry Zimmerman’s executor. This deed was regularly executed in pursuance of the authority contained in the last will and testament of Zimmerman, in whom it is admitted the title was vested in 1850. If he continued to own and died seised of the land, the executor’s deed was sufficient to vest title in Arthurs, the plaintiff. To meet the title thus exhibited, the defendant undertook to prove that Zimmerman sold and conveyed the land in his lifetime; that in 1852, he verbally agreed to sell to David P. Boyer, by whom the purchase-money was afterwards paid, and at whose request a deed Avas executed to Greorge Bascom, under whom the defendant has been in possession. The deposition of Boyer Avas admitted for the purpose of proving his parol agreement with Zimmerman ; the payment of the purchase-money and subsequent execution of the deed and delivery of the same to Boyer, to be held for Bascom, until the purchase-money due from him to Boyer Avas paid. There was also evidence tending to shoAv that the plaintiff purchased with notice of the sale to Bascom. The deed to him Avas endorsed on the deed by Avhich Zimmerman acquired his title and was seen by the plaintiff in the possession of the executor at the time he purchased. It was held by this court, on a former writ of error, that if the deed to Bascom was shown to the plaintiff before he completed his purchase from the executor, it was sufficient to put him upon inquiry as to Bascom’s title, and if he neglected to make such inquiry he cannot claim to be an innocent purchaser Avithout notice. In view of the fact that the deed to Bascom was found in the possession of Zimmerman’s executor, it was all important for the defendant to prove that it had been delivered, in Zimmerman’s lifetime, to Bascom or to some one for him. For this purpose the testimony of Boyer Avas mainly relied on, and the admission of his deposition forms the subject of the seventh assignment.
While Boyer was not a party to the suit he appears to haAre been interested in the result. By the terms of his agreement he Avas bound to make title to Bascom, but instead of procuring a deed from Zimmerman to himself and then conveying to Bascom, he alleges that for the purpose of saving expense he obtained the deed directly from Zimmerman to Bascom and retained it in his own possession as security for the residue of purchase-money. His right to the purchase-money due him depended on sustaining the title which he had thus procured for Bascom. If that failed on the ground that the deed was not delivered, to that extent Avould Boyer be the loser. Before [531] the passage of the Act of April 15th 1869, he would have been incompetent on the ground of interest, and we cannot see that he is in any better position since. The subject-matter of the controversy or thing in action was the title to the land which Boyer claims to have purchased by parol from Zimmerman and for which he after-wards procured the conveyance in favor of Bascom. Boyer is one of the parties to the transaction. Zimmerman, the other party, is dead, and whatever rights he may have had passed by the executor’s deed to the plaintiff, who now represents the deceased in the title. In construing the act, it has been held that where one of two parties to a transaction is dead, the survivor and the party representing the deceased, stand on an unequal footing as to knowledge of the transaction occurring in the lifetime of the deceased : Karas v. Tanner, 16 P. F. Smith 297. The proviso was intended to exclude parties to the transaction from being witnesses in regard to it, when the opposite party is dead and his rights have become vested in others by his own act or by operation of law. The witness was incompetent and his testimony should have been excluded.
The eighth assignment relates-to the admission of Bascom’s testimony to prove that he saw the deed from Zimmerman to himself, on at least two occasions, in the hands of Boyer and Bosler, who presented it to him and requested him to lift it and pay the balance of purchase-money. It was objected to on the ground that Bascom was substantially the party in interest under whom the defendants held. The learned judge in his charge says, the defendants “do not claim to be the owners of the land; they are in possession and claim the right to remain there under Bascom, Avho is the real defendant in the case.” If this be so, he was clearly interested in sustaining his own title; and while he did not see the deed delivered by Zimmerman to Boyer, he was called to prove facts from which its actual delivery was sought to be inferred. It cannot be said that Bascom was a stranger to the transaction. He was the vendee in the deed which Boyer procured for the benefit of both. They were both parties to the transaction with Zimmerman, whose rights, if any he had at the time of his decease, have since become vested in the plaintiff. It appears to us that the spirit if not the letter of the Act of 1869 excludes him from testifying to the delivery of the deed, or to facts occurring in the lifetime of Zimmerman, from which its delivery may be inferred.
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Mr. Justice Sterrett
delivered the opinion of the court,
The land in controversy was claimed by the plaintiff under three separate titles, one of which was based on the deed of Henry Zimmerman’s executor. This deed was regularly executed in pursuance of the authority contained in the last will and testament of Zimmerman, in whom it is admitted the title was vested in 1850. If he continued to own and died seised of the land, the executor’s deed was sufficient to vest title in Arthurs, the plaintiff. To meet the title thus exhibited, the defendant undertook to prove that Zimmerman sold and conveyed the land in his lifetime; that in 1852, he verbally agreed to sell to David P. Boyer, by whom the purchase-money was afterwards paid, and at whose request a deed Avas executed to Greorge Bascom, under whom the defendant has been in possession. The deposition of Boyer Avas admitted for the purpose of proving his parol agreement with Zimmerman ; the payment of the purchase-money and subsequent execution of the deed and delivery of the same to Boyer, to be held for Bascom, until the purchase-money due from him to Boyer Avas paid. There was also evidence tending to shoAv that the plaintiff purchased with notice of the sale to Bascom. The deed to him Avas endorsed on the deed by Avhich Zimmerman acquired his title and was seen by the plaintiff in the possession of the executor at the time he purchased. It was held by this court, on a former writ of error, that if the deed to Bascom was shown to the plaintiff before he completed his purchase from the executor, it was sufficient to put him upon inquiry as to Bascom’s title, and if he neglected to make such inquiry he cannot claim to be an innocent purchaser Avithout notice. In view of the fact that the deed to Bascom was found in the possession of Zimmerman’s executor, it was all important for the defendant to prove that it had been delivered, in Zimmerman’s lifetime, to Bascom or to some one for him. For this purpose the testimony of Boyer Avas mainly relied on, and the admission of his deposition forms the subject of the seventh assignment.
While Boyer was not a party to the suit he appears to haAre been interested in the result. By the terms of his agreement he Avas bound to make title to Bascom, but instead of procuring a deed from Zimmerman to himself and then conveying to Bascom, he alleges that for the purpose of saving expense he obtained the deed directly from Zimmerman to Bascom and retained it in his own possession as security for the residue of purchase-money. His right to the purchase-money due him depended on sustaining the title which he had thus procured for Bascom. If that failed on the ground that the deed was not delivered, to that extent Avould Boyer be the loser. Before [531] the passage of the Act of April 15th 1869, he would have been incompetent on the ground of interest, and we cannot see that he is in any better position since. The subject-matter of the controversy or thing in action was the title to the land which Boyer claims to have purchased by parol from Zimmerman and for which he after-wards procured the conveyance in favor of Bascom. Boyer is one of the parties to the transaction. Zimmerman, the other party, is dead, and whatever rights he may have had passed by the executor’s deed to the plaintiff, who now represents the deceased in the title. In construing the act, it has been held that where one of two parties to a transaction is dead, the survivor and the party representing the deceased, stand on an unequal footing as to knowledge of the transaction occurring in the lifetime of the deceased : Karas v. Tanner, 16 P. F. Smith 297. The proviso was intended to exclude parties to the transaction from being witnesses in regard to it, when the opposite party is dead and his rights have become vested in others by his own act or by operation of law. The witness was incompetent and his testimony should have been excluded.
The eighth assignment relates-to the admission of Bascom’s testimony to prove that he saw the deed from Zimmerman to himself, on at least two occasions, in the hands of Boyer and Bosler, who presented it to him and requested him to lift it and pay the balance of purchase-money. It was objected to on the ground that Bascom was substantially the party in interest under whom the defendants held. The learned judge in his charge says, the defendants “do not claim to be the owners of the land; they are in possession and claim the right to remain there under Bascom, Avho is the real defendant in the case.” If this be so, he was clearly interested in sustaining his own title; and while he did not see the deed delivered by Zimmerman to Boyer, he was called to prove facts from which its actual delivery was sought to be inferred. It cannot be said that Bascom was a stranger to the transaction. He was the vendee in the deed which Boyer procured for the benefit of both. They were both parties to the transaction with Zimmerman, whose rights, if any he had at the time of his decease, have since become vested in the plaintiff. It appears to us that the spirit if not the letter of the Act of 1869 excludes him from testifying to the delivery of the deed, or to facts occurring in the lifetime of Zimmerman, from which its delivery may be inferred.
The plaintiff also claimed under two tax sales: one made in June 1858, for taxes of the two preceding years, and the other in June 1862, for taxes assessed in 1860 and 1861. Each of these sales respectively -was sufficient to vest a good title in the plaintiff, if the land was unseated when the taxes were assessed and they remained due and unpaid for at least a year prior to the sale. The only defence taken to the tax titles was that the land was seated at the time the taxes were assessed. It was contended that the [532] Christian Lower tract, which embraces the land in controversy, was seated by reason of its having been united with the adjoining Overdorf tract, which at the time was improved and occupied. Under the evidence this was a question for the jury, and we have no means of knowing how it was determined. It ivas also claimed that it was seated by virtue of what is called the “ Reisinger improvement.” In relation to this, the evidence tended to show that in 1846 or 1847 Peter Reisinger, who owned an adjoining farm on the south, extended a clearing over the line, so as to embrace about two acres ■which he had under cultivation for a year or two ; that in March. 1849 he died, and the 'improvement was never cultivated or used thereafter; in 1851 and the two years following all the rails that had enclosed the clearing were removed, and it was thrown entirely open and permitted to grow up. In view of the testimony bearing on this subject, the jury were instructed that “ the improving of any portion of a tract of land by residence or cultivation seats the whole tract, if it all remains in the same ownership. But such improvement may be abandoned, and if abandoned so long as to permit the land to return to its natural condition, it will become again unseated, and may be assessed and sold as unseated land. Whether the Reisinger improvement was so abandoned and permitted to grow over with bushes and trees you must determine from the evidence. If it Avas, the tract, so far as this improvement is concerned, was an unseated tract and might be so assessed and sold; but if the improvement was kept up, -it would render the tract seated and a sale of it as unseated for taxes assessed against it would convey no title.” This instruction is the subject of complaint in the first assignment. Substantially the samé question is presented in the third assignment, and they may be considered together.
While the charge on this branch of the case was in the main correct, it was calculated to make an erroneous impression on the minds of the jury. They would naturally infer from what was said that actual abandonment of the improvement was not enough, unless it remained deserted and abandoned for such a length of time as to “ grow over with bushes and trees.” This was requiring too much. If the clearing was never used or cultivated after the death of Reisinger, and Avithin a short time thereafter all the rails Avere removed, and it continued to remain for several years as an open common, the improvement might properly be considered abandoned, without waiting until it greAv over with bushes and trees. If, as some of the witnesses testified, the fencing was all taken aAA'ay in 1852 and 1853, and no use whatever Avas made of the clearing for many years thereafter, it is altogether probable that in 1860 or 1861, if not before, the condition of the premises was such as to afford the most satisfactory evidence to the assessor that the improvement had been actually abandoned and the land permitted to assume [533] its natural state. If such was the fact, the tract was properly considered unseated and assessed accordingly.
Again, if the clearing over the line by Reisinger was accidental and without any intention on his part of taking possession of the tract on which the clearing was done, it would not have the effect of seating it. In view of the fact that Reisinger owned and lived on the adjoining farm, it is by no means clear, under the testimony in the case, that the clearing over was not of this character; and 'if the jury had felt at liberty to consider this aspect of the case they might have so found.
The tenth and eleventh assignments present substantially the same questions that were considered and decided when the same title was before this court on a former writ of error. The remaining assignments of error are not sustained, and there is nothing in either of them that calls for special notice.
Judgment reversed and a venire facias de novo awarded.