Bowser v. Cravener

1. In an article for the sale of land no consideration was mentioned: it was not therefore void; the consideration might he shown by parol. 2. An entry and improvements were made under a contract of sale ; the purchaser acquired an interest which would be the subject of liens and sales on execution, and would require to be conveyed in writing or sold and delivered in such a way as to take it out of the Statute of Frauds. 3. The declarations of a vendee, after entry and valuable improvements, that he would throw up his article and hold as tenant to his vendor, his possession continuing as before, are insufficient to divest his interest. 4. The certificate of a magistrate to an acknowledgment setting forth that he was “ Magistrate in the chief office of said town of Carlo, in the county of Carlo, Ireland,” and signed “ E. Butler, sovereign of Carlo, Ireland,” with the seal of the town affixed, was sufficient to entitle the instrument to be recorded. 5. A deed thirty years old, where there is possession under it, is regai-ded as an ancient deed, and proves itself. 6. Kecitals in ancient deeds are presumptive evidence of pedigree where an adverse title by inheritance is set up under the same ancestor, though the land in the deed is the subject of controversy.

Error to the Court of Common Pleas of Armstrong county: No. 6, to October and November Term 1867. This was an action of ejectment, by John S. Cravener against David S. Bowser and others, for 100 acres of land in Armstrong county: service of the writ was accepted January 23d 1864. The plaintiff claimed under the original warrantee. On the trial, at a special court, before Campbell, P. J., of the 18th district, the plaintiff gave in evidence an official survey of October 18th 1785, of 201 acres, being depreciation tract No. 280 ; and patent October 4th 1786, to Richard Freeman, for the same tract. He then offered a power of attorney to James Stewart from Simon Freeman and others, recited in it to be the brothers and sisters of Richard Freeman, dated September 16th 1830. The certificate of acknowledgment is as follows:— “ Town of Carlo, to wit: Be it remembered that on this 16th day of September, in the year of our Lord 1830, personally came and appeared before me, E. Butler, Esq., magistrate in the chief office of said town of Carlo, in the county of Carlo, Ireland, Simon Freeman, &c., the persons mentioned in the above or foregoing letter of attorney, and acknowledged said letter of attorney to be their and each of their acts and deed, and desired same to be recorded as such, &c. In testimony whereof I have hereunto put my hand and seal, and caused the seal of said town to be affixed, the day and year first before written. “ E. Butler, Sovereign of Carlo, Ireland,” \ (with the official seal). J The power of attorney was recorded in Armstrong county, March 3d 1831. This offer was objected to by the defendants, because the instrument was not properly acknowledged, and because the recitals were not evidence. The evidence was admitted and a bill of exceptions sealed. The plaintiff then offered in evidence a deed dated February 28th 1831, from Simon Freeman and others (by name), by their attorney in fact James Stewart, to Anthony Cravener, for the tract above mentioned. The deed recited that the grantors were “ heirs at law of Richard Freeman, late of Washington City,” &c. This deed was recorded March 3d 1831. This was objected to because it was not properly acknowledged, and because there was no proof that the grantors were the heirs of Richard Freeman. The evidence was admitted, and a bill of exceptions sealed. The land in dispute is the “ south half” of the Freeman tract. Anthony Cravener died about 1848, leaving two sons, Anthony and John S. Cravener, the plaintiff; Anthony released his interest to the plaintiff, January 8th 1864. Anthony, the father, was living on the north half in 1845 and long before, and was then building a mill on the south half; the foundation was stone, with a log mill-house. The line between the two parts was made for Samuel Bowser in 1844. Slate Lick creek' and Glade run meet on the north part of the tract. The defendants claimed under Samuel Bowser, and gave evidence that Samuel Bowser lived at the falls of Glade run, on the land in dispute, in 1805, and until 1816 or 1817, and had a small cabin and 4 or 5 acres cleared. Whilst there he executed the following instrument signed but not sealed by him :— “ September the 7th in the 1816. Herein agreed upon between Samuel Bowser and David Elanner. Samuel Bowser doth sell to David Elanner his improvement, and Samuel Bowser is to give up his settlement against the 1st of May next, and the half of the survey where he pleases to have it. Hereunto doth set our hand and seal.” Elanner went on to this improvement when Bowser left. Burnheimer and Toy went on to the north part under Bowser; Toy in 1825. Whilst he was there, Bowser told him he had sold to Cravener. Toy stayed under Cravener till 1832, when he left; Elanner was then on the south part, claimed up to the run as the division-line and had 15 or 20 acres cleared. They gave evidence also that Cravener, who was a, single man, about 1831 or 1832, went into the house with Elanner as a boarder; that Flanner left about that time, and Cravener remained after Elanner left; also, that Elanner had declared that he was to pay Bowser a share out of “ the fields” as rent; that Cravener came there as a steady resident in 1833, cleared in that year and the next, cut logs for the mill, and planted trees; that he declared that he had a foreigner’s title, and wanted to go in with Elanner to get possession ; he claimed that he had bought the whole tract from Bowser: there was other evidence of his declarations that he had bought half the tract of Bowser, and that the run was the line. They also gave in evidence from the notes of Mr. Phelps, the testimony of David Eldnner, given in a former trial of the case, June 23d 1848; he then said that he had cleared about 15 acres, and built a house and stable on the tract after he bought from Bowser ; that after the controversy between Bowser and Cravener about the land, he threw up the old article and gave up the land to Bowser; that Bowser told him he might stay on if he pleased— there were 8 or 9 acres he might have, and give Bowser one-third. The defendants further gave in evidence the record of an ejectment to September Term 1850, by Samuel Bowser against the plaintiff and others, for 112 acres 12 perches of land, and verdict for the plaintiff for the land south of Slate Lick, and west of Glade run, — 24th June 1852, judgment; 13th July 1852, writ of error filed; 25th November 1852, record returned, judgment affirmed; habere facias to No. 43, March Term 1853 ; possession February 11th 1853. Also assessments in the name of Bowser for 200 acres from 1807 until 1817, and for 100 acres from that time to 1835. The plaintiff, in rebuttal, gave in evidence, under objection and exception, the deposition of Hon. Joseph Buffington, taken November 6th 1866, with the papers attached, as follows:— “ I wrote this article of agreement now exhibited to me and marked J. B.’ on the margin; it is rather in the form of a conveyance ; it was signed by David Flanner-and witnessed by A. J. Faulk; the case of Bowser v. Oravener had been tried in the Common Pleas of this county, and carrried up to the Supreme Court, and there resulted in favor of Oravener ; I returned home on Monday, I think after the argument, and believing that the judgment would be reversed, in consultation with my colleague, Mr. Johnston, we concluded to send for Oravener and David Flanner: they came to town, I believe, on the next day, and upon inquiry we ascertained that Flanner signed some paper at the instance of David Bowser and Daniel Slagle; he, Flanner, stated at the time, that he had not transferred his interest in the property, that he had merely signed the old article of agreement at the instance of David Bowser and Daniel Slagle ; a full and accurate account of that interview was taken by me in my handwriting, as per a statement hereto attached marked ‘ B,’ signed by David Flanner, and to which I am a witness; upon hearing that statement, Mr. Johnston and myself advised Flanner to execute a conveyance to Oravener for the land in dispute, for which Oravener agreed to pay him $50 ; in pursuance of that I wrote the conveyance from Flanner to Oravener, as first above mentioned, hereto attached, marked ‘A;’ it was duly executed and delivered; I was present and saw the consideration-money, $50, paid;.,I told Flanner upon what grounds the Supreme Court had reversed the judgment, and Mr. Johnston and myself explained to him fully his relationship to the title to the land before he made the conveyance to Oravener.” Paper marked “ B.” “David Flanner states: — On Tuesday, October 27th 1846, David Bowser and Daniel Slagle called at his house; I asked them if they were going to stay any time ; they said not — that they had no notion of staying — that they had the old article along and wanted me to sign it; that if I would not sign it Samuel Bowser would lose the suit; it was just coming on that week, this same week now, that there was about $350 costs on it, and if their father would lose it he would not be worth one cent; they said if they would gain the suit they would give me $15, if not, they would give nothing ; they did not give me anything; they said they wanted nothing but for me to sign the old article ; they read old article ; they read nothing but the old article ; I asked them particularly if there was anything but the old article, and they said not; my name was written to it when they came there, and I had nothing to do but to put my mark to it; my son Elijah was present, and I told him to pay particular attention; I told them there might be some danger of my signing it, and they said, they would keep me indemnified ; that they would have to have it in town before 1 o’clock; that Mr. Phelps must have it in Pittsburg ; that the suit was just coming on for trial; there was no new writing that I saw on it; if there had been anything new I would not have signed it; I asked if it was just the old article they wanted me to sign: they said yes, that was all. his “ October 29th 1846. “ David X Planner.” “ Witness, mark. “Joseph Bueeington.” They gave in evidence also the article, D. Planner to Anthony Cravener, proved by Judge Buffington, viz.:— “ This indenture made the 29th day of October, in the year of our Lord, 1846, between David Planner of the one part, and Anthony Cravener of the other part, witnesseth, that the said David Planner, for and in consideration of the sum of $60, &c., * *' * hath and by these presents doth grant, &c., * * * to the said Anthony Cravener, his heirs and assigns, all the right, title, interest and claim, of him the said David Planner, of, in, to, and out of, a certain piece of land, situate in Franklin township, Armstrong county, containing 100 acres, more or less ; being the same piece of land which the said Planner bought of Samuel Bowser, adjoining lands of the said Anthony Cravener, and which said land is now in the possession of the said Anthony, being the same land which is now in dispute between Samuel Bowser and Anthony Cravener. And the said David Planner having yielded up the said land to the said Cravener, by parol agreement, some ten or twelve years ago, hereby confirms and ratifies that contract, and the right thereby yielded and given to the said Cravener.” Also, the deposition of David Planner, taken February 12th 1864. He testified that Cravener came to the premises and lived with him about thirty years before ; set apple trees, and declared that he had bought the whole tract from him ; that he cut timber for his mill on both sides of the tract. He further testified that Bowser’s son and son-in-law came to him about the time the case was in the Supreme Court, and told him his name was above in the old article and should be below, and wanted him to put it below; on his hesitating, they said their father would give him $15 to do it; said if he did not do it their father would lose the land; they did not tell him he was selling the land, if they had he would not have signed it. On cross-examination he testified that he had made improvements on the land, and had paid $15 of the purchase-money ; that when called upon and sued for the balance he threw up the article ; that he never agreed to pay rent to Bowser and had never paid any. The plaintiffs also offered the deposition of William Noble, taken 8th of February 1845, said to have been read in. a former trial between the predecessors of the same parties for the same land. It was objected to for want of notice and because not identified. E. Buffington, Esq., who assisted at the former trial, testified that his notes showed that a deposition was offered, that proof of service of notice had been made by a witness now dead ; that he could not say whether the deposition was read or not; that Noble’s deposition was read. There was other evidence on this point, more positively identifying this as the deposition. The court received the deposition and sealed a bill of exceptions. Noble and other witnesses testified to declarations by Samuel Bowser that he had sold the whole tract to Anthony Cravener. The defendants’ points and the answers of the court were as follows: — 1. There being no consideration expressed in the contract of 7th of September 1816, of Bowser to Flanner, and none shown in the evidence, it was on the part of Bowser a mere voluntary engagement without any equivalent, and is not enforcible at law. “We answer, that there is no consideration mentioned in the old article of September 7th 1816. Whether any consideration has been shown by the evidence is referred to the jury ; but the defendants themselves have given evidence that Flanner gave up his possession under that contract because he was unable to pay the purchase-money, but if there was no consideration proven, if Flanner entered and made valuable improvements upon the faith of that agreement, he would still have an interest that could be enforced.” 2. The contract above mentioned was executory, and being such, might be rescinded by parol; and if the jury believe from the evidence that the agreement was delivered up to Bowser by Flanner, and that subsequently Flanner left the land and abandoned all claim to it, there is sufficient evidence of a rescission of said contract, and any subsequent conveyance made by Flanner would be void. “We answer this point in the negative; the loose declarations of Flanner, as to changing his possession from a purchaser to a tenant, are insufficient to establish the relation of landlord and tenant.” 3. If the jury believe from the evidence that Flanner took possession of the land in dispute under the contract of 7th of September 1816, and afterwards attorned to Bowser as his landlord, and agreed to pay him rent for the use of the place, or fixed upon himself any other character than that under which he entered, he thereby abandoned his equities under said contract, and his possession is referred to his new agreement and would enure to the benefit of Bowser ; and if the jury believe from the evidence that Bowser and Flanner together held adverse possession for twenty-one years, then the plaintiff cannot recover. Answer : “ If lie entered in 1816 as a purchaser under the contract of that date he could only become a tenant of Bowser by a conveyance good under the statutes of fraud and perjury, a parol surrender of the articles and possession alone would not divest his title, and therefore the possession of Cravener under Elanner would not enure to Bowser unless under the agreement of 1846. If Bowser and Elanner had the adverse, exclusive and continued possession of the whole land for 'twenty-one years, it would confer a good title against all the world.” 5. If the jury believe from the evidence that Anthony Cravener went into the house of Flanner on the premises and became a boarder in his family, it was not such an entry as would justify the possession of Elanner, or suspend the running of the Statute of Limitations, although he might be the holder of the legal title; until he did some act indicative of his intention to claim the possession, or declare that he entered for the purpose of talcing possession under his title, and if the possession of Bowser and his tenants to that of Elanner was exclusive, adverse and continued for twenty-one years before such an entry by Cravener, the Statute of Limitations would be a complete bar to the plaintiff’s right to' recover in this action. “ We answer that a mere casual entry of the holder of a legal title would not stop the running of the statute, but as soon as done with a claim of right and exercising act of ownership, it would suspend the running of the statute. The balance of this point is answered in the affirmative. The verdict was for the plaintiff. The defendants took a writ of error. The errors assigned were the answers of the court to their points, and the admission of the evidence contained in the several bills of exception. cited Shorb v. Shultz, 7 Wright 207; Jones «. Wood, 4 Harris 25'; Sartwell v. Wilcox, 8 Id. 117; Soles «. Hickman, Id. 183; Boyce «. McCulloch, 3 W. & S. 429; Goucher v. Martin, 9 Watts 106; Lauer v. Lee, 6 Wright 165; Peebles «. Reading, 8 S. & R. 493; Henderson «.Hays, 2 Watts 152; Overfield v. Christie, 7 S. & R. 177; Hughes «. Pickering, 2 Harris 297 ; 2 Greenl. Ev., § 298; Garvey «. Hibbert, 1 Jac. & W. 180 ; Galbraith «. Green, 13 S. & R. 92; Murphy «. Lloyd, 3 Wh. 53,8 ; Meals «. Brandon, 4 Harris 220 ; Eerguson «. Staver, 9 Casey 411; Hammer v. McEldowney, 10 Wright 334. cited Cravener «. Bowser, 4 Barr 259; Goucher «. Martin, 9 Watts 106; Smith v. Patton, 1 S. & R. 80; Bassler «. Niesly, 2 Id. 355; George v. Bartoner, 7 Watts 630; Colt v. Selden, 5 Id. 525; Lowry v. Mehaffy, 10 Id. 387; Arnold v. Cessna, 1 Casey 43 ; Dixon v. Oliver, 5 Watts 512; Acts of April 3d 1840, § 1, Purd. 313, pi. 20, Pamph. L. 233; 1705, § 2, 1 Sm. L. 69; Milligan v. Dixon, 1 Pet. C. C. 433 ; Blythe v. Richards, 10 S. & R. 261; Costen’s-Appeal, 1 Harris 296 ; Stockbridge v. West Stockbridge, 14 Mass. 257 ; Green v. Chelsea, 24 Pick. 71; Doe v. Phelps, 9 Johns. 169 ; Doe v. Campbell, 10 Id. 475 ; Little v. Pallister, 4 Green 209; Paxton v. Price, 1 Yeates 500; Act of March 14th 1850, § 2, Purd. 67, pi. 5, Pamph. L. 195; Garrigues v. Harris, 5 Harris 344 ; Scott v. Baker, 1 Wright 330 ; Peterson v. Speer, 5 Casey 479; McCaskey v. Graff, 11 Harris 326; Stauffer v. Young, 3 Wright 455; Steward v. Richardson, 2 Yeates 89; Rhine v. Robinson, 3 Casey 35; Voris v. Smith, 13 S. & R. 334; Gibson v. Gibson, 8 Harris 11; Moore v. Pearson, 6 W. & S. 51.