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LESSEE OF ISAAC ATKINSON, PLAINTIFF IN ERROR, v. JOHN CUMMINS.

January 1, 1850

LESSEE OF ISAAC ATKINSON, PLAINTIFF IN ERROR,
v.
JOHN CUMMINS.



THIS case came up, by writ of error, from the Circuit Court of the United States for the Western District of Pennsylvania. It was an action of ejectment brought in the Circuit Court by Isaac Atkinson, a citizen of Ohio, to recover a tract of land in Derry township, Westmoreland County and State of Pennsylvania. The whole case was stated in the bill of exceptions, which it is only necessary to recite.

The opinion of the court was delivered by: Mr. Justice Grier delivered the opinion of the court.

Copy of Bill of Exceptions.

'In the Circuit Court of the United States, Western District of Pennsylvania.

'RICHARD SMITH, Lessee of ISAAC ATKINSON, a Citizen of the State of Ohio, v. WILLIAM STILES, with Notice to JOHN CUMMINS, a Citizen of the State of Pennsylvania.

'November Term, A. D. 1846.–Action of Ejectment.

'Be it remembered, that at the November term, A. D. 1846, of the said court, before the Honorable R. C. Grier, an associate justice of the Supreme Court of the United States, and the Honorable Thomas Irwin, judge of the said District Court, judges holding said court, at Pittsburg, in said district, the parties in this cause were at issue upon a plea of not guilty in manner and form as the said plaintiff hath thereof in his declaration complained, by said John Cummins, who had entered into and filed in said cause the common consent rule, confessing lease, entry, and ouster, &c., as appears of record in the same; and therefore a jury was called, and regularly and legally impanelled and sworn to try said issue; and on the trial thereof, the plaintiff, to prove the same on his part, gave in evidence the record of a judgment in the Court of Common Pleas of Westmoreland County, Commonwealth of Pennsylvania, in favor of Thomas Pumroy, for the use of John Sloan, junior, against George Pumroy, on the 5th day of September, 1820, for the sum of four hundred dollars debt and costs; also a writ of fieri facias, issued on said judgment from said court, dated December 2d, 1820, directed to the sheriff of said Westmoreland County, a levy by John Klingensmith, sheriff of said county, of said writ, on all the right, title, and claim of George Pumroy, of, in, and to a certain tract of land, situate in Derry township, adjoining land of James Henry, Nathaniel Doty, William Reed, William Bell, Robert Thompson, James Wilson, and others, containing 400 acres, more or less, about sixty acres cleared, thirty acres of which is in meadow, having thereon erected a grist-mill, shingle-roofed log dwelling-house, shingle-roofed log barn, with an apple-orchard thereon growing; and also of such further proceedings in the premises as showed a legal and valid sale by said sheriff of the premises so levied upon, as aforesaid, on the 18th of February, A. D. 1822, to one John Rhey, for the sum of fourteen hundred and one dollars; also a deed from said sheriff to said Rhey, for said premises so levied upon and sold as aforesaid, duly acknowledged in said court on the 9th day of April, 1822; and also evidence that, at the time of said levy and sale, said George Pumroy was the owner of said premises described in the plaintiff's declaration, and sought to be recorded in this action; also a conveyance in fee of said premises by said John Rhey, on the 16th of June, A. D. 1841, to said Isaac Atkinson. And the plaintiff, on said trial, for the purpose of exhibiting and defining what he claimed as embraced in said levy, sale, and conveyance to said Atkinson, as aforesaid, gave in evidence the plot or draft marked on the outside 'A, November 18th, 1846,' hereto attached, and herewith incorporated as a part of this bill, and claimed before said court and jury that said levy, sale, and conveyance to said Rhey embraced and contained the said land represented in said plot or draft by the black lines, embracing 326 1/2 acres, and also 158 1/2 acres, and gave evidence that William Bell and William Reed, two of the persons named as adjoiners of the said 158 1/2 acres, as indicated on said plot or draft, are not adjoiners of any part of the 326 1/2 acres. The defendant, on the contrary thereof, insisted and claimed that said levy and sale did not embrace or contain any part of the land described in the plaintiff's declaration (which is the same marked 158 1/2 acres on the plot), but, on the other hand, was limited and confined to that marked on the said plot 326 1/2 acres, &c.; and thereupon, after giving evidence to show that the improvements on the said last-mentioned tract of 326 1/2 acres, &c., corresponded with the description in the levy, that the tract in dispute contained upwards of one hundred acres of cleared land, with an apple-orchard, a shingle-roofed log dwelling-house and barn and stable thereon erected, and that the said two tracts were entirely distinct, separate, and disconnected from each other, in order further to prove that said levy and sale did not embrace or contain any part of the land described in plaintiff's declaration, but, on the other hand, was limited and confined to that marked on the plot 326 1/2 acres, called John Klingensmith, Esq., late sheriff of Westmoreland County, by whom the levy and sale in the case were made, and proposed to prove by him as follows:–That he went to the land of George Pumroy, in 1821, to make the said levy; that the said George Pumroy furnished him with the adjoiners of both tracts; that, upon inquiring of said Pumroy whether the description furnished embraced more than one tract, and learning from him that it covered both, he objected to making the levy in that way; that the said Pumroy acquiescing in his decision, he then struck off, as well as he could, the names given to him as adjoiners exclusively of the tract in dispute in this action, and supposed that he had stricken them all off; that on the inquisition held upon the levy, indorsed on the fi. fa., the land in dispute was not submitted to the jury, or acted upon by them, but only what was calied the mill tract, or, in other words, that upon which the purchaser entered after the sale; that at the sale, upon a representation made to him by some of the bystanders that there was an ambiguity in the description of the land which rendered it uncertain whether one or both tracts were included within it, he stated, in the presence and hearing of John Rhey, that he was selling only the mill tract, and that bidders must govern themselves accordingly; that he made the same representation to Paul Morrow, by whom the property was purchased, as the agent and for the use of said Rhey; that, after the said sale, he was directed to execute the deed to said Rhey, which was accordingly done; that, at the time of the execution thereof, it was again represented, and perfectly understood by both parties, that the property conveyed in said deed embraced only the mill tract, and not the land in dispute; and that at a subsequent period, not very remote from the time of the said sale, upon a representation to him by some of the neighbours that the said Rhey was asserting his claim to the property in dispute under said sale, he took occasion to inquire of him whether the fact was as represented, to which the said Rhey replied that he might have said so in a jocular manner, but that he never intended to claim both tracts, for that he knew that he never bought both tracts, and that he never paid for both tracts, and to claim them now (then) would be too much like putting his hand into another man's pocket and robbing him.

'To the admission of which testimony of said Klingensmith, proposed to be given by the defendant as aforesaid, the plaintiff objected, and insisted that the same could not be legally admitted for the purpose aforesaid.

'Whereupon said court did overrule said objection, and admitted said testimony of said Klingensmith so proposed to be given as aforesaid, and the said Plaintiff here in court, and during the trial of said cause, excepts to the judgment, opinion, and determination of said court in admitting said testimony; and as the facts aforesaid do not appear of record, the said plaintiff prays that this bill of exceptions may be certified, signed, and sealed by the judges of said court, that the same may become part and parcel of the record in said case. By the court allowed and ordered to be lodged on file.

'R. C. GRIER, [L. S.]

THOMAS IRWIN. [L. S.]'

The jury found a verdict for the defendant.

Upon a writ of error sued out by the plaintiff, the case was brought up to this court.

It was argued by Mr. Cooper, for the plaintiff in error, and Mr. Wylie, for ...


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