Wheeler v. Winn

53 Pa. 122

• Court: Supreme Court of Pennsylvania
• Decided: October 17, 1866
• Status: Published

Opinion

The opinion of the court was delivered, by

Woodward, C. J.

The material questions in this cause arise upon the assignments of error to the charge of the court below; but it is denied that the plaintiffs have a right to assign these errors, because they neglected to except to the charge. It appears from the record that both parties submitted points in writing -to the judge, and the counsel for the plaintiffs signed and presented also a paper in the following words :

• “ The court is respectfully requested to reduce their entire charge to writing at the time of the delivery thereof to the jury, and to file the same of record forthwith in this cause, according to the provisions of the Act of Assembly in such case made and provided.”

The charge was accordingly written out and filed, but no exception in form was tendered or noted. The first question for us, therefore, is, whether an entire charge, so brought upon the record, is liable to assignments of error.

At common law, a writ of error might be had, either for an error apparent on the record, or for an error in fact, but it lay not for an error in law not appearing on the record ; and of course, where the plaintiff or defendant alleged anything ore temes which was overruled by the judge, this could not be assigned for error, as it did not appear on the record, and not being an error in fact, but in law, the party was remediless.

To remedy this evil, the stat. 13 Edw. 1, ch. xxxi., gave the bill of exceptions to any one that is impleaded before any of the justices, and who doth allege an exception, praying that the justices will allow it: Roberts’s Digest of Statutes 92.

The terms of this statute, it will be observed, were very general ; but a bill of exceptions under it has been described as founded on some objection in point of law to the opinion and direction of the court, either as to the competency of witnesses, the admissibility of evidence or the legal effect of it, or some matter of law arising upon facts not denied, in which either party is overruled by the court. If such bill be tendered, and the exceptions are truly stated in it, the judges ought to set their seal in testimony that such exceptions were taken at th'6 trial; but if the bill contain matters false or untruly stated, or matters wherein the party was not overruled, the judges ought to refuse to affix their seals. A bill of exceptions is not to draw the whole matter into examination againit is only for a single point,, and the truth of it can never be controverted after the bill is sealed. The nature of the thing requires that the exception should be reduced to writing when taken and disallowed, like a special verdiet or a demurrer to evidence. It is not necessary, indeed, that the hill should be drawn up in form, but the substance must be reduced to writing while the thing is transacting. If the exception be not stated in writing, and tendered at the trial, it is waived, and the party shall not resort back to his exception after verdict against him. For perhaps if he had stood upon his exception, the other party need not have put the cause upon that point, but might have'offered other testimony: Wright v. Sharp, 1 Salk. 288; 2 Tidd’s Practice 788 ; Roberts’s Dig. 94.

A bill of exceptions to the charge of the court may be tendered at any time before the jury have delivered their verdict in open court: Jones v. Insurance Co., 1 Binn. 38. A plaintiff in error may assign error in an opinion on any point material to the issue appearing on the bill of exceptions, although it was not particularized in stating the exceptions below: The Phœnix Ins. Co. v. Pratt, 2 Binn. 308. And it was said by Yeates, J., in Downing v. Baldwin, 1 S. & R. 304, that the statute 13 Edw. 1 gave the bill of exceptions in order that the points determined should be introduced into the record, and be decided on by a court of error.

So much for the English statute, which contemplates a bill of exception as the only means of bringing the points of law ruled by an inferior court upon the record for purposes of review in a court of error. But on the 24th February 1806, our legislature, without superseding the bill of exceptions, provided still another practice for bringing legal opinions upon the record. That act (see Purd. 807) provided that the judge who delivers the opinion of the court shall, if either party by himself or counsel requires it, “ reduce the opinion so given with the reasons therefor to writing, and file the same of record in the cause.” That this act embraces charges delivered to juries as well as what are more technically called opinions, is shown by the case of Downing v. Baldwin, 1 S. & R. 300, which was, like the case before us, an instance of a charge filed at the request of counsel, but no exception taken to it, and the language of Chief Justice Tilghman in respect of it is worth quoting. “ It has been strenuously argued,” said the Chief Justice, “ that this court can take no notice of the judge’s charge, because it has not been brought on the record by a bill of exceptions. The Act of Assembly directs that in all cases in which the opinion of the court shall be delivered, if either party require it, it shall be the duty of the judges to reduce the opinion so given with the reasons therefor to writing, and file the same of record in the cause. The act does not say what shall be the consequence of this; it makes no mention of a writ of error or a bill of exceptions. But it is contended that it was not meant that any error in an opinion filed of record should be taken advantage of in any other manner than by a bill of exceptions. This construction has never yet been put on the act. The point, indeed, has never been made, but has frequently been taken for granted both by court and counsel, that any error in an opinion filed of record may be taken advantage of on a writ of error without a bill of exceptions, and, upon full consideration, I am of opinion that the practice which has taken place is according to the true meaning of the Act of Assembly. The reason of introducing the bill of exceptions was, that the opinion excepted to could not otherwise appear upon the record. The statute does not say that a writ of error shall lie on the bill of exceptions. Rut, inasmuch as a writ of error lies at common law, and the effect of it is to bring the record before the superior court, the judges, finding the bill of exceptions upon the record, are bound to take notice of it.” And to these very pertinent observations of Judge Tilghman, I may venture to add, that the judges, on return of a writ of error, finding upon the record palpable errors in a charge written and filed under the statute, are equally bound to take notice of them as if they were contained in a bill of exceptions. This conclusion results necessarily out of the language of the act, and of the judicial construction of it. In Bassler v. Niesly, 1 S. & R. 432, it was said by the same learned judge that in order to give the Act of Assembly its full effect, it would be the duty of the court, if required, to permit the necessary evidence to be placed on the record without a formal tender of a bill of exceptions: see also Munderbach v. Lutz, 14 S. & R. 126.

For fifty years the practice was regulated by these statutes — > parts of charges specially excepted to being brought upon the record by bills of exceptions, and entire charges by request to file them under the Act of 1806 — and errors assigned upon them because upon the record, whichever mode was adopted to bring them there.

But some judges were found who would dodge the propositions of law commonly called points, which counsel submitted, or if they noticed them in their charge, it would be in such equivocal language as to mean one thing in the jury-box and another thing in the court of error, or else, if they stated them clearly, they would delay to file the charge to the injury of parties, the Act of 1806 prescribing no time for filing it. To remedy these inconveniences the legislature passed the Act of 17th April 1866 (Purd. 164), which enacts that, “ whenever the parties or either of them shall request the court to charge the jury on particular points of law, drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury shall reduce the answers to the points to writing, and read them to the jury before they retire from the bar to consider of the verdict, and the said points and the answers thereto shall be filed immediately by the prothonotary, and become parts of the record of the case; and when exceptions are taken to the charge of the court in the manner now practised, it shall be the duty of the judge who delivers the charge to file the same in writing with the prothonotary, before the rising of the court, or within thirty days thereafter.” Two things were provided for here — the bringing upon the record points and answers, and the filing of the whole charge or such parts of it as are excepted to within a specified time. Two days before this act another one was passed: see Pamph. L. for 1856, p. 837, requiring judges to file their whole charges of record when requested by parties or counsel. The old practice was not dispensed with but only added to, and now we have, 1st, the bill of exceptions given by the statute of Edward, where those parts of the charge which are excepted to are to be drawn out into a bill of exceptions sealed and filed of record; 2d, the whole charge filed under the Act of 1806, and the Act of 15th April 1856, within the time prescribed by the Act of 17th April 1856. It is the practice of some judges to add their signature or seal to the whole charge, but it is not necessary, for the signature sufficiently identifies it, and as it is not properly a bill of exceptions, but a statutory substitute for a bill, no seal is necessary, nor indeed proper. 3d, Points and answers written out and filed, is another statutory method of bringing the law of the case upon the record without a bill of exceptions.

And as in either of these modes the matter to be reviewed is brought upon the record, and the writ of error which goes to the whole record, brings it necessarily into the court of error, counsel may come here and assign errors upon any part of that record, and it is our duty to notice them. I have taken pains to state the practice more fully than was necessary to the case in hand, because it has fallen into some confusion, and it is no uncommon thing for us to hear debates about what part of the charge is upon the record and what is not. In this instance it is apparent that the whole charge is upon the record, for it was filed in pursuance of the written request of counsel, and was thus made a part of the record by the Act of 1806 and 15th April 1856, and the written points and answers are upon the record, for they are made parts of it by the Act of 17th April 1856. That no exception appears of record is immaterial.

The action was ejectment for a tract of land in Bratton township, Mifflin county, which was surveyed in 1793, upon a warrant to William Gray. The plaintiffs claimed title to it by virtue of a sale for taxes, and showed an assessment of taxes for the years 1820,1823 and 1835, and a treasurer’s deed to R. C. Hale, dated 12th June 1838. Hale’s title vested in the plaintiffs in 1864, who instituted this suit 2d August 1864.

The defendant stood upon the Statute of Limitations, and to make out twenty-one years’ adverse possession was obliged to rely upon an improvement commenced by John Horning in the year 1814, the right to which he claimed to have purchased. The court was called on by plaintiffs’ 3d point to say that the defendant had shown no such designation of boundaries or continuance of possession as would make title under the statute, but the learned judge declined to affirm the point, and referred it to the jury to say whether Horning or those claiming under him kept up the possession until “near or about the time Winn went there.” In looking through the evidence, we see no adequate proof of a possession by Horning to constitute title under the statute. Richeson Bratton, the first witness on the part of the defendant, says “ Horning’s improvement was made in 1814 — that he built a small house for the purpose of having some one to live on it to herd his cattle. Michael Horning was put in there by his son John, and I was hired by John to go there to assist him. Michael Horning, when we went there, showed me the corners he claimed to up and down the creek. The corner was not far from the old path that ran across the mountain. The improvement was near the creek, six or eight rods from it. Old Mr. H. lived there, had a cow, churned butter, had beds, baked bread, &c. I stayed there through the summer season. I left old Mr. H. there. I do not think old Mr. IT. stayed there through the winter. We sprouted and fenced up a piece, fenced a place for the cattle, and a piece of land for a truck patch. I do not know of his being there for any other purpose than to herd cattle through the summer. While T was at the Hornings they put cattle there every spring. The improvement was kept up from five to ten years. I think the fire burnt the house down. I do not know that the improvement was renewed after it was burned. Horning claimed 360 acres along the creek.”

Another witness, Daniel Yoder, stated that “the hunters and fishermen kept up the house a good many years after it got old, for their accommodation and those who took cattle over there; after it was burned, a cabin was built there by the men who herded their cattle there, and the hunters. Horning had his cattle always over there. I don’t know that he was there more than one summer, but they were there back and forward, and kept their cattle there. Horning lived at Horning’s Ferry after he left the cabin. No one lived there but to watch their cattle after he left;”

I have selected from the strongest evidence on the part of the defence this description of the Horning improvement, for the purpose of showing that it lacked continuity, without which it never could ripen into title. No matter what corners and lines were marked or cabins built, if the possession was used only to herd cattle, and abandoned every year when the pasture season ended, it was not a possession for the purposes of the statute. And such as it was, it seems to have been a mixed possession with hunters, fishermen and other herdsmen, and not exclusive in the Hornings. It was not, therefore, such a possession as could confer title, for it is a well-settled principle of construction, that a possession under the statute must be not only hostile, but continued and exclusive. And it must be also for purposes of residence or cultivation. An annual entry upon another man’s lands, to cut timber, to feed cattle, to hunt or fish, can never give title, and the cultivation of a truck-patch during the summer as incidental to the other pursuits, does not redeem such entries from the character of occasional trespasses.

We are of opinion that the evidence failed utterly to show such an improvement, commenced and continued for twenty-one years before suit brought, as could constitute title under the statute, and that the court erred in submitting it to the jury as evidence of title in Winn. The consequence of this ruling is, that Winn is to be regarded as a mere intruder, and therefore not in position to raise objections to the tax title of the plaintiffs: Foster v. McDivitt, 9 Watts 341; Foust v. Ross, 1 W. & S. 501; Dikeman v. Parrish, 6 Barr 210; Troutman v. May, 9 Casey 462. The treasurer’s deed to Hale has not been exhibited to us, but if it was made, as we suppose, for the unpaid taxes before mentioned, it was not defective by reason of a tax included in the sale that was assessed within a year of the sale. Where an assessment of taxes is shown, and a treasurer’s sale is made for their collection, the deed is conclusive against an intruder without title or color of title.

We think the court also erred in rejecting the exemplifications of the deeds offered on the part of the plaintiffs, for it was decided in Leazure v. Helligas, 7 S. & R. 313, that the office copy of a deed conveying lands in two counties and recorded in one only, is evidence in ejectment for lands in the county in which it is not recorded.

We see no importance in the remaining bills of exception.

The judgment is reversed, and a venire facias de novo is awarded.