assessed in the unseated list as tract No. 4897, that the land be so designated in the assessment one hundred acres situate in Fox Township, as to lead the owner to a knowledge of the fact Clearfield County, surveyed in the name of Wil- that it is his land which is assessed. (Dunn v. helm Willink; for 1826, county tax, 6 cents, Ralyea, 6 W. & S. 475; McDermott v. Hoffman, road tax 6 cents; for 1827 county tax 5 cents, 70 Penn. 31.) The tract being unseated, the road tax 6 cents. For these taxes the tract was assessment by its proper number in the name of subsequently sold at treasurer's sale, and pur- the original warrantee, was sufficient, notwithchased by Ebenezer Hewitt, to whom a deed was standing the misstatement of the number of acknowledged and delivered under date of 1 acres. (Williston v. Colkett, 9 Penn. 38.) It is December, 1828. The owner failing to redeem, enough that the name in which it is assessed has Ebenezer Hewitt, by his deed dated 26 July, been linked to the land by some known claim of 1836, conveyed the same to Jones, Warner, and title. (Glass v. Gilbert, 58 Penn. 266.) Andrews, who, on the 11th August, 1836, placed Nor can the title of Jones, Warner, and Andrews both of the deeds mentioned upon record. The be regarded as an abandoned and derelict title. tract contained about 1000 acres, whilst it was It is a general rule in ejectment, subject to wellassessed as containing only 100 acres, but there known exceptions, that the defendant may prois nothing to indicate that a portion only of the tect his own possession by showing an outstandtract was intended to be covered by the assessor's ing title in a third person; but it must be a subreturn. The return was of tract No. 4897, in sisting title, such as would sustain an ejectment, the name of Wilhelm Willink, and the "100 and be available in favor of the party in whom it acres" is but matter of description. At the time is alleged to exist. The effect of the tax sale, of the assessment, Martin Nichols held a con-after the lapse of two years, was to pass the title veyance for 750 acres off the west end, and Jona- of the real owner to Ebenezer Hewitt; the conthan Nichols for 300 acres off the east end, the veyance from Hewitt to Jones, Warner, and residue of the tract; but the whole was unseated, Andrews was, therefore, of the absolute legal title and it does not appear that the owners had made to the land with all its incidents. It was not known their separate ownership, as required by such a title as might be abandoned by mere delay the Act of 1806, in order that their respective in instituting an action. A man may abandon an portions might be taxed separately. The Willink improvement or a right of pre-emption (Whitcomb survey of 1794 was located across the surveys of v. Hoyt, 30 Penn. 403), because continuity of 1785, the earlier surveys having previously appropriated all the land covered by No. 4897, excepting about 126 acres at the northwest corner and 144 acres at the southwest corner, and, as the division line was afterwards run between Martin and Jonathan Nichols, the 126 acres at the northwest corner and about 36 acres of the piece in the southeast corner fell to Martin, and the residue, being 100 acres more or less, to Jonathan. It does not appear that there was any indication, at the time of the assessment, that any portion of the tract was laid upon lands already appropriated, or that the owners of the tract 4897 recognized the superior right of any earlier warrant. The conveyances from Alexander Boyd to Martin and Jonathan Nichols were of the whole tract, and nothing appeared on the land or otherwise to show any relinquishment on part of the holders of the Wilhelm Willink warrant. On the other hand, as we have said, the assessment was of the whole tract by its proper number in the name of the warrantee. It does not even appear that the lands covered by the warrants of 1784 were assessed, or that the taxes thereon were paid for the years 1826 and 1827, and if they were not, the tax deed of 1828 would, under all the cases, be effective to convey all the lands embraced within the lines of tract 4897. possession is essential to its existence; or he may abandon a location by neglecting to follow it up by a survey in a reasonable time, or he may abandon an equity in lands; but Jones, Warner, and Andrews were invested with the full, legal title, and of such a title they could only be divested by an abandonment, the circumstances of which were sufficient to raise an estoppel, or when the possession is acquired by one in consequence of the abandonment, and held by him under claim of title for the period of the limitation. When there is neither estoppel nor limitation there can be no abandonment, no matter how formal the act short of a conveyance, which can affect the rights of the holder of the legal title. (Watson v. Gilday, 11 S. & R. 337.) In Hoffman v. Bell (61 Penn. 444), land warranted and surveyed in 1794 was sold to the county for the taxes of 1820, the treasurer made a deed in 1826, but as it was made after he had gone out of office it was void; the purchaser from the county paid the taxes for forty-eight years, and during that time the warrantee neither made claim nor paid taxes-held that this great lapse of time, without claim or payment of taxes by the warrantee, was not an abandonment. The owner's non-payment of taxes, says Mr. Justice SHARSwooD in the case cited, cannot be considered as an abandonment of his title; the doctrine of It is only essential to the validity of a tax sale | abandonment does not apply to lands held by a perfect title, but only to imperfect titles by war It appears to be undisputed, that at the time of rant and survey. So in Bunting v. Young (5 Putnam's purchase of the land in dispute in 1875, W. & S. 188), where warrants were obtained and for some time before and after that time, from the Commonwealth in 1793, the purchase-Tyler was ignorant of the real condition of the money paid, surveys promptly made and accept- title; he had taken the timber off the thirty-six ed, it was held, that there could be no such thing acres some years before, and thought the land as abandonment, by which the title would be lost, was embraced in his mortgage to Wallace. If and it was error to submit that question to the the land should prove to be vacant, however, as jury. If this were an ejectment by Jones, War-it was then supposed to be, it would still be availner, and Andrews, we can discover no reason why able for Putnam. It was to ascertain this fact the tax deed to Hewitt, and the conveyance from that the parties went to Harrisburg. Finding Hewitt to them, would not be available in their that the lands were patented, Putnam said to favor; and if this be so, they should have been Tyler on his return home, "What shall I do available in this case, to protect the defendants' now?" Tyler replied, "I don't know." Putnam possession, for the plaintiff must recover on the said, "I will go and see Mr. Wallace, and have strength of his own title. him look it up." Putnam says he did see Mr. Under the testimony of the surveyors, Read Wallace, and under his advice purchased the Cox and Mitchell, the question of location should title. Subsequently improvements were made to have gone to the jury. Phoebe Tyler, as we have the value of $10.000, or thereabouts. In 1879 said, must recover on the strength of her own or 1880 Tyler told Putnam he had found a deed title; and if it be true that one-half or more of to himself for this piece of land; it was the deed the lots of Putnam and Scates were in fact not from Martin Nichols. An examination showed within the lines of the thirty-six acres, conveyed that the thirty-six acres had not been embraced to her by David Tyler, she has shown no title in the Wallace mortgage. Now if the acts and which would justify her recovery of any land declarations of Tyler were such as to induce outside those lines. It will not do to say there Putnam to make the purchase, and as matter of never was any dispute as to the line of the Hutch-fact upon the faith thereof the purchase was inson survey, there is a dispute now, and the true location of the dividing line between the tracts was, under all the evidence, for the determination of the jury. made, Tyler would be estopped from afterwards setting up the true title against Putnam, although he may have been ignorant of his own rights at the time. What the actual inducement is to a But as the difficulties we have suggested may purchase of real estate often involves an operabe removed at the next trial, we come next to tion of the mind, which cannot always be shown, consider the question of estoppel. The defend- and in some cases, perhaps, the existence of cerants allege that David Tyler, and Phoebe Tyler, tain facts will raise a presumption of injury. who holds under him, are in equity estopped from But, in this case, there is no pretence that Tyler asserting title to this land. The doctrine of encouraged the purchase of the Cox title, or inequitable estoppel is well settled under our deci- deed of any other title; Putnam himself testifies sions, and so far as it applies to this case, is that he purchased the Cox title under the advice stated substantially in the cases following. Posi- of his attorney, whom he had employed to look tive acts, tending to mislead one ignorant of the the matter up. A question of fact is thus distruth, and which do mislead him to his injury, tinctly raised, viz., whether Putnam purchased are grounds of estoppel, though the party estopped relying in whole or in part upon Tyler's implied were ignorant of his rights. (Chapman v. Chap- disclaimer, or upon the advice of his counsel. man, 59 Penn. 214.) But the acts of a party, This question was, we think, one for the jury. done in ignorance of his rights, will not operate The learned Judge instructed the jury as follows: as an estoppel, unless others have acquired rights" It is just as you find the weight of the evidence on the faith of them. (Newman v. Edwards, 34 in these particulars, that turns your verdict for Penn. 32; Duncan's Appeal, 43 Penn. 67.) One the plaintiff or defendants. Did Tyler mislead who by a positive act induces another to purchase Putnam, or did Putnam by the Cox title, indeland of a third party, of which the former is the pendent of what Tyler had said or done, intendtrue owner, is estopped from setting up his title ing to assert a superior or better title as he beagainst the purchaser, though all parties acted in lieved and hold the land? If he did, then Tyler's good faith, and in ignorance of the true state of acts and silence did not hurt him. If, however, the title. (Miller's Appeal, 84 Penn. 391.) he acted on whatever Tyler said or did, then he When a person actually encourages or induces was misled, and that by the man who ought to another to enter upon land and invest money, or have had the knowledge, and given him (Putexpend labor, he cannot afterwards call in ques-nam) notice of it, and the plaintiff is estoption such title, though he acted in ignorance of his ped." own right. (Woodward v. Tudor, *81 Penn. 382.) The verdict was for the plaintiff, and the infer ence is irresistible that the fact submitted was found for the plaintiff. Nor do we find in the evidence any positive act of Tyler which can be treated as an inducement or encouragement to make improvements on the property after the purchase. The testimony upon this point is certainly very slight indeed. It is said, however, that he lived within half a mile, saw the improvements made, and gave no notice of his claim, but mere silence will not estop a party having title; it will postpone only when silence is a fraud, which cannot be imputed to one who is ignorant of his rights. (Folk v. Beidelman, 6 Watts, 339; Robinson v. Justice, 2 P. & W. 19; Owens v. Myers, 20 Penn. 134; Davidson v. Barcklay, 63 Penn. 406; Lawrence v. Luhr, 65 Penn. 236.) improvements as far as they are permanently beneficial to the estate and enhance its value. (Story's Eq. 779; Pomeroy's Eq. 1241; Skiles's Appeal, 16 WEEKLY NOTES, 246.) This is the extent to which the Courts of this State have gone in allowing for improvements, and it will be seen that the claim of the defendants cannot in this case be sustained. The second, third, seventh, eighth, ninth, and tenth assignments are not sustained; but upon the first, fourth, fifth, sixth, and eleventh the judgment is reversed, and a venire facias de novo awarded. SCATES v. TYLER. January 3, 1888. THE COURT. For reasons expressed in an opinion filed in the case of Putis reversed, and a venire facias de novo awarded. nam v. Tyler, argued with this case, the judgment Opinions by CLARK, J. PAXSON, J. absent. S. H. T. January 11, 1888. Western Union Telegraph Company v. -Er It is further contended, however, that although Telegraph companies-Repeated message—l The general policy of the law, where no statute intervenes, is to allow the value of improvements only by way of set-off against or in mitigation of damages for the detention of the land; and the value of betterments cannot therefore usually exceed the amount of the plaintiff's damages and mesne profits. (Sedg. & Waite, 698.) It is a well-settled principle of equity, moreover, that when a bona fide possessor of property makes meliorations upon it in good faith, and under an honest belief of ownership, and the real owner is for any reason compelled to come into a Court of Equity for relief, that Court applying the familiar maxim, that he who seeks equity must do equity, will compel him to pay for those In an action against a telegraph company to recover damages for delay in the transmission of a message, the face of the telegram ought to contain something to put the company on its guard; but when the alleged damage arises from erroneous transmission it defence that the face of the telegram does not disclose its meaning. no When one who receives a telegram which contains the usual requirement as to "repeating messages" goes to the office whence it was sent to him and requests the operator to wire back to see if it is correct, and is informed by the operator (who makes no demand for extra pay), that he has done so, and the message is correct, the company is responsible for the loss result In such a case, if there had been a demand for payment for the extra service and a refusal to pay, a different question would have arisen. A plaintiff who was led through an error in a telegram into the belief that certain sheep, which had in fact cost $5.60 per cwt., had cost $5.06 only, resold the same for $6.00; whereas if he had known the facts he could have received $6.50: Held, that the difference between $6.00 and $6.50 was the true measure of damages. In such a case a conversation between one of the plaintiffs and the telegraph operator who received the dispatch, is competent testimony. Error to the Common Pleas No. 1, of Philadelphia County.. Case, by John B. Landis and Metz J. Erisman, against the Western Union Telegraph Company, to recover damages arising from a mistake in the transmission of a telegram from East Liberty (a suburb of Pittsburgh), to Philadelphia. Plea, the general issue. On the trial, before BIDDLE, J., it appeared that the plaintiffs were dealers in live stock, doing business at the Abattoir in West Philadelphia. On April 27, 1882, the following telegram was delivered to the plaintiff, Landis, to whom it was addressed : East Liberty, Pa., April 27, 1882. To J. B. LANDIS, "A. I sold them at six cents." On behalf of the defendant, it was shown that the telegram was sent upon the usual form furnished by the company, which contained the words: "To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same." And at the foot : "This is an unrepeated message." No charge was made or received for the inquiry made by the operator, Shuster, who inquired only of the main office at Tenth and Chestnut streets, Philadelphia. The defendant offered to show by the witness, Shuster, the custom of the company in relation to repeated messages. Objected to. Objection sustained. (Third assignment of error.) five patch as originally sent, the words were That the plaintiffs received several telegrams, daily, and paid bills monthly to the company as rendered. That the dispatch as received, meant that the sheep had cost five dollars and six cents per hundredweight, and therefore plaintiffs supposing them to be a lower grade of sheep, sold them for six dollars, instead of six dollars and fifty cents. This suit was to recover this difference in price for the sheep so sold. Defendant requested the Court to charge :(1) If the jury find that at the request of one of the plaintiffs the receiving operator asked back as to the corectness of the message, and asked only to the office from which he had received the message, and was assured that the word in the copy of the message before the sending operator was 'six," and that the operator so informed the plaintiff, and that the plaintiff paid nothing for this service; these facts do not amount to a repetition of the message provided for in the contract between the parties and the plaintiff. Refused. (Fifth assignment of error.) 66 (2) The plaintiff having sold sheep at a price above what he paid for them, he has suffered no loss, and can recover nothing from the defendant. Refused. (Sixth assignment of error.) In the general charge, the Court said: "The operator admits that they asked him to ask back, What and he told them he had asked back. more one who wants a message repeated can do, is hard to understand. All you can ask is to have it repeated. A citizen can't know by what route his message was sent. The sender has no mode of compelling a repetition to originating office. If the receiver of the message asks to have it repeated, he is not bound to know how it is done. If he asked to have it repeated that was all he is bound to do. The liability of defendant is complete. It is beyond dispute that plaintiff did ask to have the message repeated." (Fourth assignment of error.) Verdict and judgment for plaintiffs for $258.44. Whereupon defendant took this writ, assigning for error the admission of testimony, the refusal of his points, and the portion of the charge above quoted. Rudolph M. Schick (Benjamin Harris BrewsIt was shown by the plaintiffs that in the dis-ter with him), for plaintiff in error. The rule as to measure of damages is, that in from it that the operator had wired back to inthe absence of malice, a defendant is only responsible for such damages as may be fairly and reasonably considered to have arisen from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of a breach of it. Hadley t. Baxendale, 9 Exch. 341. Hoag v. R. R., 4 Norris, 293. R. R. v. Taylor, 15 WEEKLY NOTES, 37. quire if the message had been transmitted correctly. The fact that nothing was paid for this service is not important. Had there been a demand and a refusal to pay, there would have been more force in the point. Aside from this the plaintiffs had a current account with the company and paid on bills rendered on stated occasions. The fifth and last assignment relates to the measure of damages. The Court was asked to to say to the jury that as the plaintiffs had sold the sheep at more than cost, they sustained This rule has always been adopted in telegraph no damage. This the Court declined to do, and cases. Tel. Co. v. Wenger, 5 Smith, 262. Landsberger v. Tel. Co., 32 Barb. 530. Mackay v. Tel. Co., 16 Nev. 222. Dorgan v. Tel. Co., 1 Am. L. T. (N. S.) 406. in this we see no error. The plaintiffs were entitled to recover their actual loss. This is the rule recognized in our own case of United States Telegraph Company v. Wenger (55 Penn. 262). In that case an order to purchase stocks was sent to a broker in New York. The message was never delivered, causing a delay in the purchase It is submitted that the testimony did not of the stock, which, in the mean time, had adshow that the company had assumed the respon-vanced in price. The plaintiff was allowed to resibility incident to a repeated message. cover the difference. Samuel B. Huey (Josiah R. Adams with him), for defendants in error. February 6, 1888. THE COURT. We see no error in permitting the witness, Landis, to answer the question, "Did you sell the sheep at that price?" The sheep had been sold to arrive at six dollars per hundred. The allegation of the plaintiff was that they had been sold for less than their value by reason of the error in the telegram, and he claimed to recover the difference as the measure of.damages. The defendant company could not have been injured by the reply of the witness. It was urged by the plaintiff in error that the telegram did not disclose its meaning so as to enable the operator to understand the importance of its correct transmission, and that the company could not have been aware of the extent of their responsibility for an error. Telegraph Company v. Wenger was cited to sustain this view. That, however, was a case where the negligence was a failure to deliver the telegram. Some of the other cases cited were also for delay in delivery. It seems reasonable that where damages are claimed for mere delay in delivery, the face of the telegram ought to contain something to put the company upon its guard. A delay of a day or even a The second assignment does not appear to be few hours might cause a heavy loss. But the sustained by an exception, and is moreover with-case in hand is one of erroneous transmission, and out merit. Nor do we think it was error to re- the loss was by reason of such error. The plainfuse to permit the defendant to prove by the wit-tiffs were receiving daily, and sometimes several ness, Shuster, the practice or method pursued by the company in regard to repeated messages. What either party did or omitted to do upon this particular occasion, was competent. times daily, telegrams of a similar character re- The fourth assignment alleges error in the charge of the Court. A careful examination of the evidence leads us to a different conclusion. The message came from the stock yards near Pittsburgh to Philadelphia. When delivered at that place to the plaintiff he feared there was a mistake and went at once to the office of the July '85, 174. company and asked the operator to wire back for information. The witness said: "I think I went right away to operator and asked him to ask Erisman whether it was five six' or 'five sixty,' and he said I have asked him." The reason he had asked was "he thought it was funny it was 'five six.'" This was substantially uncontradicted. The plaintiff could only understand Linnard's Appeal. R. H. N. March 26, 1886. Pledge of certificate of stock fraudulently obtained as collateral for antecedent debt— What constitutes a purchase for value-Discussion of forbearance as a consideration-Transfer of negotiable paper in payment and as securityDistinction between collateral given as security |