Cleavinger v. Reimar

3 Watts & Serg. 486

• Court: Supreme Court of Pennsylvania
• Decided: September 15, 1841
• Status: Published

Opinion

The opinion of the Court was delivered by

Kennedy,-J.

The first error cannot be sustained. The evidence objected to was clearly admissible, because it was pertinent to the issue, as will be shown in the sequel.

Neither does the second error appear to be sustainable. The only evidence offered, or given to the court to prove the interest and incompetency of Peter Henry, on that account, in the cause or the event of it, was his own testimony given on his voire dire at the instance of the defendants. But, according to it, he sold and conveyed nothing to the plaintiff, Reimar, but his claim to the land; such as it was, bad or good, Reimar agreed to take it, and pay the price stipulated between them for it, at his own risk. If so, it would seem that he had no interest in the cause or the result of it, which could render him incompetent to testify on behalf of the plaintiff.

The third error is an exception to the charge of the court, in which, among other things, they instructed 'the jury, that for a period of 55 years, from 1776 to 1831, nothing had been done on the warrant of Reese Meredith, to perfect the title under it; that the owner of it must therefore be considered as having abandoned it, and the survey made in pursuance of it; that no title vested by virtue of it, either in John Y'. Barclay, or in the representatives of Clymer and Woods,- by the assignment of the treasurer’s deed to Mr Barclay; that the board were right in declaring the warrant and survey void, though not for the reason assigned in their decision; which was, that the warrant was granted by the Penns after the 4th of July 1776, when Pennsylvania ceased to be a province of Great Britain, and they to be the proprietaries of it. In this instruction, we think the court below were mistaken; for although but little was done, during the period mentioned, towards completion of the title to the land under the warrant, yet something was done; for instance, the survey was made by a regular deputy-surveyor of the State in May 1787. But suppose nothing had been done towards completing the title under the warrant, yet other things were done, just as effectual to prevent an abandonment of either the title or land from taking place, as the completion of the title would have been; such, for instance, as taking possession of the land by leasing it and improving it, or causing it to be improved, by building houses thereon suitable for habitation, clearing, fencing, and cultivating it as a farm, and at the same time residing upon it with a family, making it the place of abode and the means of supporting such family. The warrant in the name of Reese Meredith, and the land surveyed under it, were- claimed by Henry Clymer and Henry Woods, at least as early as 1825. Upon what ground they claimed the warrant and land, does not appear; nor is it material in this case, seeing no other person appears ever to have had any claim to the warrant. In the beginning of 1825, they, by their attorney, John Y. Barclay, leased the land to Peter Henry for a term of seven years, who, in pursuance thereof, entered upon it, and resided thereon with his family, building upon and improving it, according to the terms of his lease, during the whole of the term, and afterwards, as it appears, by setting up a claim to it in his own right, by obtaining a warrant for it in his own name, founded upon his personal residence upon it. These acts may be considered anything except abandonment, for they are wholly incompatible with it. Besides, as early as 1805 the land was assessed, by the commissioners of the county, with taxes, in the name of the Meredith warrant, which, as the land was then unseated, became a lien upon it until paid; so that no abandonment of the warrant or the land could be made after that, which would prevent and defeat the commissioners from collecting the taxes, if not paid, by a sale of the land. A sale for this purpose was made of the land in 1820, at which the commissioners were compelled to buy it in themselves, as no other bid for it a sufficient sum to cover all the taxes in arrear, and the co.sts accrued thereon. The commissioners held the land until 1830, during which time no pretence of abandonment can be alleged, when they sold it to a Joseph Crichfield, who sold the same to Jacob Chorpenning; and after passing from Jacob Chorpenning to Charles Ogle, Esq., it was redeemed or purchased by John Y. Barclay, the attorney of Clymer and Woods. In the mean time, the settlement and improvement, made upon the land by Peter Henry, must be considered as made for the benefit of his lessors, Henry Clymer and Henry Woods, so that the warrant obtained by him for the land, gave him no right to hold it against them, or their heirs and assigns, after the expiration of the’léase which he took of them. Neither could the decision of the board of property, declaring the Meredith w'arrant and survey void, supposing it to have been correct, avail him anything, without destroying the relationship between him and his lessors; and this it certainly could not effect. But I am inclined to think, that the decision of the board cannot be supported; because the Act of Assembly of the 9th of April 1781, made warrants, granted after the 4th of July 1776, and before the 10th of December of the same year, valid, so that the Meredith warrant, which was granted on- the 23d of August in that year, was not void for that reason, as the board of property thought. The State having received the purchase money, the £15 sterling, as we may presume, because warrants were not granted then for lands, without the whole of the purchase money being paid at the time of granting them, it would have been inequitable in the State not to have made provision for rendering such warrants effectual. We are therefore of opinion that the court below erred in directing the jury as stated above.

The fourth error is, that the court, in their charge to the jury, assumed the fact, that the agreement in writing, between Mr Cox and the attorneys of Clymer and the executors of Henry Woods, was made before the commencement of the year 1839, instead of leaving it to the jury to say whether or not it was made prior to that year. What the court said to the jury in this respect was, that “ sometime prior to the year 1839, Mr Cox entered into an agreement with Messrs Ogle and Forward, attorneys of Clymer and Woods, which is in the following wordsand then read the agreement. Although the agreement is without date, yet it is perfectly obvious from the terms of it, that it was made prior to the year 1839; for by it Mr Cox, among other things, was “ to give his notes for 1630, payable 1st of May 1838,” which could not have been, had the agreement been entered into subsequently to the 1st of May 1838. That it was made, therefore, before the commencement of the year 1839, was not only a fair but a necessary deduction from the terms of the agreement itself; and as it was in writing, it was proper for the court to make it, and to instruct the jury accordingly.

The fifth error is, that the verdict and judgment are for the whole of the land, whereas there is no evidence whatever that Mr Cox purchased more than two-thirds of the tract; consequently, under the view that the court took of the case, which was that the plaintiff below derived no title from Peter Henry to the land, excepting what' he had a right to claim by virtue of Mr Cox’s agreement for the purchase of it, in consequence of Mr Cox’s being the attorney at law of Henry, in an action of ejectment against him for the land at the time. This point, that Mr Cox’s agreement only embraced two-thirds of the whole tract, does not seem to have been made, on the trial, by the counsel for the defendants below. At all events, it is not included in any of the points submitted by them to the court. It therefore does not seem to arise properly here. However, it may be observed, that Mr Cox’s agreement for the purchase of the land appears to embrace the whole tract; but whether he ever obtained a deed of conveyance from the executors of Henry-Woods, for their testator’s third of it, does not appear. This might have been a ground for a new trial in the court below, but cannot be taken advantage of on a writ of error.

The sixth error is, that the agreement of Mr Cox for the purchase of the land, not having been made prior to the 1st of November 1838, the date of the deed of conveyance from Peter Henry and wife to Reimar the plaintiff; the latter, therefore, could not derive any benefit from Mr.Cox’s purchase, as it was subsequent to the conveyance received by him of Henry, which dissolved the relation of client and attorney between Henry and Cox, if it was not at an end before. It is a sufficient answer to this error to say that it is not sustained in point of fact. For, as has been shown already, Mr Cox’s agreement for the purchase must have been made before the 1st of May 1838; for on that day he was to pay $630 as part of the purchase money for the land.

The seventh error, which is the last, is an exception to the charge of the court, for instructing the jury, that if Mr Cox, without Peter Henry’s having given up all intention to prosecute his claim to the land, or sell his title to some one, who would be better able to do it, went on and purchased the title of Clymer and Woods, for his own benefit, without Peter Henry’s consent, and then sold the property to William Henry, one of the defendants, with a knowledge on the part of William Henry, that Mr Cox was the attorney of Peter Henry in the ejectment against him, or that William Henry had paid no part of the purchase money to Mr Cox, the defendants could not set.up the title of Clymer and Woods, either as vested in themselves or as outstanding, and that the plaintiff was entitled to this verdict for the land, without having made a tender of the money, which Mr Cox had or was to pay for the title of Clymer and Woods. We think the court erred in this instruction to the jury, and instead thereof, they ought to have told the jury, it was competent for the defendants below to set up the title of Clymer and Woods, in order to defeat the plaintiff’s claim to the land, even if William Henry had notice at the time he purchased of Mr Cox, or before he paid any of the purchase money, that Mr Cox was the attorney of Peter Henry, when he bought of Clymer and Woods, so long as the plaintiff had not made a tender, before instituting his action, of the amount of money which Mr Cox had paid and was bound to pay for the title of Clymer and Woods. Had the plaintiff below, before he brought this action, paid or made a tender of the amount of money that Mr Cox paid and was bound to pay for the Clymer and Woods title, then it would have been competent for him, according to the decision of this court in Galbraith v. Elder, (8 Watts 93, 94, 95), and the principles there laid down, to have claimed all the benefit and advantage from that title, that he would have been entitled to had he been the owner or purchaser of it himself. See also Hall v. Hallet, (1 Cox 134), where it is said, that upon principles of policy no attorney shall be permitted to purchase anything in litigation, of which litigation he has the management. It is certainly upon principles of public policy, and not on the ground of fraud, that an . attorney shall not be permitted to avail himself of a title, which he purchases, to land that he Is retained and employed to support a different title to, for his client; and hence the objection, that a party who has been guilty of a wilful fraud, shall not have the money reimbursed which it cost him, by the one who claims the benefit of it, is not applicable. Mr Cox may have intended no injury to Peter Henry, by purchasing the Clymer and Woods title; yet, it is somewhat strange, if the testimony of Peter Henry be true, that Mr Cox should have purchased the Clymer and Woods title, after telling Henry that his title was the better one of the two, and that he could hold the land under it. It is probable, however, that some misapprehension, in regard to this matter, took place between Mr Cox and Mr Henry. But, be that as it may, we are of opinion that the plaintiff below cannot claim the benefit of the Clymer and Woods title, without paying or tendering to Mr Cox or his assignee, the amount of the money, which Mr Cox paid and was bound to pay for it.