and assurances in law, was in his lifetime lawfully seised in his demesne as of fee of and in the piece and parcel of land hereafter described,' etc. The title thus conveyed became, in 1865, vested in the Chicago Petroleum & Mining Company, by which company it was conveyed to the defendant, Hosea Harmon, by deed dated the 22d of August, 1879, unless it had been previously divested by the sales for taxes hereinafter mentioned. (5) In the year 1870 and 1871, there was assessed in Pittsfield township, Warren county, Pa., as unseated, a tract of land described as 'No. 230.' containing 197 acres, owner unknown; and said land was charged in each year with its proportionate amount of taxes. The taxes upon 100 acres of said land were paid before sale by E. Livermore, and the balance, 97 acres, was sold to P. Falconer for taxes in arrears, and deed made and delivered to him by the treasurer accordingly. On June 6, 1873, 44 acres were redeemed by the estate of E. Livermore. Similar assessments were made for the years 1874 and 1875. The taxes on 144 acres were paid before sale by the estate of E. Livermore, and the balance, 53 acres, was sold to P. Falconer, June 13, 1876, and deed made and delivered accordingly. It was conceded that the deeds, assessments, and sales covered 53 acres of the land described in the deed from the defendant to Wentworth, hereinbefore referred to. (6) P. Falconer, the purchaser at the tax sales, died in 1876, intestate, leaving surviving him seven children, two of whom died prior to 1887, unmarried, without issue and intestate. Three of the surviving heirs conveyed their interests in the land in question to W. I. Bachop, in 1887, who conveyed the same interest to Eli B. Wentworth; but in 1885 one of the three heirs so conveying to Bachop had conveyed all his interest in these with other lands to the same W. I. Bachop and Charles H. McCauley, jointly. His deed, therefore, in 1887, passed no title so far as he was concerned; and the actual fractional interest vested in Bachop at the time of his conveyance to Eli B. Wentworth was but five-tenths or one-half.

"The questions arising upon the facts above found, and which have been argued by the counsels. are the following: (1) Has the plaintiff shown that the title to the land in question, at the time of the assessments of taxes in 1870, 1871, 1874, and 1875, was out of the commonwealth, so as to subject it to taxation? (2) Does the evidence identify the land sold and remaining unredeemed with the land sold by the defendant to Wentworth, and as to which he warranted the title? (3) Has the plaintiff shown that David Warner was evicted from the possession of the land, the title to which was warranted by the defendant by title paramount? (4) It appearing that Eli B. Wentworth, by whom David Warner is alleged to have been evicted, had but the undivided half of the title, can the plaintiff in any event recover

damages as for an eviction from more than one-half the premises warranted?

"The defendant, Harmon, not having been notified of the adverse claim to the land set up by Eli B. Wentworth against the tenant in possession, has heretofore had no opportunity of contesting that claim. He is therefore in no way concluded by the proceedings in the ejectment suit of Wentworth against Warner; nor do they even show a prima facie valid title in Wentworth, since no judg ment was ever entered upon the verdict. It is incumbent upon the plaintiff, therefore, to show in this suit all that it would have been necessary for Eli B. Wentworth to show in order to recover the premises from Warner. It is not enough that Warner was evicted from the possession of the land, but it must affirmatively appear that he was so evicted by a title paramount to that conveyed by the defendant. Until this is done, it is a matter of no importance whether Harmon, at the time of his conveyance, had any title or not. The plaintiff here must recover upon the strength of Eli B. Wentworth's title, and not upon the weakness of that held by Warner under the defendant. In respect to the question of title, we regard the case as precisely the same as if Eli B. Wentworth were now seeking to establish his title against Warner in possession, and Harmon vouched in to defend that possession. The plaintiff gave no direct evidence of title out of the commonwealth. He did offer a survey and patent for the tract of land, but does not even claim that the land therein described can be identified so as to include the land in question. Unless the recital in the deed from the executors of Huidekoper to McKinney, to the effect that their testator was seised in his demesne as of fee, is evidence in favor of the plaintiff, and against the defendant, there is no evidence of title out of the commonwealth, unless it may be safely assumed, as it is intimated by the present chief justice in Jones v. Bland, 112 Pa. St. 181, 2 Atl. 541, may sometimes be done. But, if the recital may be regarded as such evidence, it seems to me sufficient to establish that fact. It is in the nature of an admission or solemn declaration that, before the date of the deed containing this recital, the title was out of the commonwealth; since otherwise it could not have been vested in H. J. Huidekoper. The recital is undoubtedly evidence against the grantors in the deed and all their successors in title. It is not conclusive, amounting to an estoppel, except as against themselves and their privies, and in favor of persons in privity with them. But when set up by a stranger, though not conclusive, it is evidence, subject to be rebutted as other evidence may be; and, in the absence of any countervailing proof, is sufficient to establish the fact. Whart. Ev. §§ 923, 1039-1041. In Strayer v. Johnson, 110 Pa. St. 24, 1 Atl. 222, it is suggested that a purchaser at tax sale is to be treated as in

privity with the title divested by that sale, which may be so or not. I find, as a deduction from the recital in question, that the title to the land in controversy was out of the commonwealth at the date of the assessment and sale for taxes to Falconer. The assessment upon which the sale to Falconer rests included the whole tract of 197 acres, and therefore necessarily included the land in dispute. This is also a necessary postulate from the admission of the defendant's counsel that the land sold covered 53 acres of the land concerning which this controversy has arisen. The payment of taxes before the sale and the redemption of the land after the sale are matters which are proper to be shown in avoidance of a title under a tax sale. It is not necessary that one who claims under such sale should affirmatively prove the nonpayment of taxes or the nonredemption of the land. These are matters which the original owner must establish to relieve his land from sale. There is in this case no specific evidence locating and defining the land upon which the taxes were paid by Livermore, or which was redeemed for him after the first sale to Falconer. If the tract contained precisely 197 acres, it is possible that there was included in this payment or redemption some portion of the 74 acres claimed by Wentworth; but, in the absence of any evidence, we cannot assume this to be so, nor locate what part, if any, of the 74 acres was redeemed. The assessment of the land, and the fact that taxes did not appear by the record to have been paid at the time of sale, is sufficient to sustain the tax title; and the evidence failing to show that any part of this particular land was redeemed, or intended to be, we are constrained to hold that the tax title under the first sale, at least, was valid as to the entire piece of land.

"It follows from the foregoing conclusion that the title of Eli B. Wentworth was paramount to the title held by David Warner, at least as to the undivided one-half. I am of opinion that the facts shown constitute an eviction in law, at least to the extent of the undivided one-half of the land. The suit in the ejectment, though not even prima facie evidence of title in the plaintiff, there being only a verdict but no judgment thereon, was nevertheless a demand by Eli B. Wentworth upon Warner for the possession of the land; and it is well settled that a warranty is not required to defend his possession until actually forced out before he can avail himself of the covenant of warranty. He may yield to a mere demand for the possession, or to an ejectment, which is the legal and orderly substitute for an entry, without contest; only, by so doing, and neglecting to vouch in his warrantor, he assumes the burden of showing that the title to which he yields is actually paramount to his own. Had Warner given notice to Harmon and defended the ejectment by showing everything which has now been shown in this action, he must

have been evicted from the undivided one

half of the premises. In my opinion, the plaintiff's vendee, Warner, having yielded to the demand of possession by Eli B. Wentworth, without notifying Harmon, can only claim to have been evicted to the extent that he would have been had the case proceeded to judgment. It is beyond dispute that Wentworth could dispossess Warner only to the extent of the undivided one-half. As to the other half, there is no evidence that Warner's possession was ever lawfully disturbed. The owners of the other half of the tax title have never demanded possession, so far as the evidence shows, in any way; nor did the exigencies of the case require it to be shown who the real owners of the title were at the time of Warner's eviction. For all that appears in the case, it may be that Warner himself or the defendant may be the owner. Bush v. Gamble, 127 Pa. St. 43, 17 Atl. 865.

"My conclusions of law, briefly stated, are as follows: (1) That the recital in the deed from the executors of Huidekoper to McKinney is evidence that the title to the land in question had before that time passed out of the commonwealth. (2) That the records and other evidence given by the plaintiff do establish the assessments and sale of the land in question for taxes as unseated, and there is no evidence sufficient to establish either that the taxes upon any part of the land were paid before the sale in 1872, or that any portion of the land in question was redeemed from that sale. (3) That the facts shown by the plaintiff established in law an eviction of David Warner from such undivided part of the land in question belonged to Eli B. Wentworth, under the tax sale. (4) That Eli B. Wentworth, at the time of the eviction of Warner, having but the undivided one-half interest in the land in question, Icould evict Warner only to that extent, and therefore the plaintiff's recovery is limited to damages for the undivided half of the land; that, under all the evidence, the plaintiff is entitled to recover one-half of the consideration paid by W. W. Wentworth to the defendant, to wit, the sum of $150, with interest thereon from the 27th of January, 1890.

"Answer to plaintiff's points: The plaintiff's first point is answered in the affirmative. The second point is answered in the affirmative. The third joint is answered in the negative. The fourth point is answered in the affirmative. The fifth point is answered in the negative.

"Upon the whole case, I find that the plaintiff, James McGrew, is entitled to recover from the defendant, Hosea Harmon, the sum of $175, with interest thereon from this date, November 6, 1893. And, unless exceptions are filed, judgment is directed to be entered accordingly."

Opinion of court on exceptions:

"The exceptions filed by the plaintiff complain of the rulings of the court by which the plaintiff's recovery was limited to the one

half of the consideration, instead of the whole. It is argued with much force and ability that the eviction of Warner was not by the action of ejectment, in which no judgment was ever rendered, but by entry, and that the possession of Wentworth, the owner of the undivided one-half of the tax title, will be presumed to be as well for the other owners, as for himself. The covenant of warranty is a technical contract, the meaning of which is well established, and no real or fancied equity in any particular case can justify a departure from the well-settled rules by which the rights and liabilities of the parties to such a contract are to be measured. The covenant is not broken by a failure of title, but only by an eviction of the covenantee from the possession of the whole or some part of the premises by title paramount. Eviction implies that it shall be involuntary. It need not be by legal process, nor by actual force; but when the tenant voluntarily yields to an entry or mere demand, without giving the warrantor an opportunity to defend, he must show that, had he not done so, his eviction by legal process was inevitable. Clarke v. McAnulty, 3 Serg. & R. 364; Knepper v. Kurtz, 58 Pa. St. 484. The evidence shows no demand for the possession from Warner, except that made by Wentworth by the ejectment. The other owners of the tax title have never asserted, and may never assert it. Wentworth, as tenant in common, could recover no more than his own purpart and would then be in possession jointly with Warner, and as tenant in common with him.

Freem. Coten. 343; Dewey v. Brown, 2 Pick. 387; Gray v. Givens, 26 Mo. 303; Dawson v. Mills, 32 Pa. St. 302. Warner might have had partition, and, for all that appears in this case, be still in the undisturbed possession of one-half of the warranted premises, had he seen fit to remain. It does not even appear that this right would be questioned by Wentworth should Warner now assert it. Under these circumstances, I think the rules governing the rights of tenants in common between themselves are not applicable. The covenant upon which the suit is brought has been broken only as to the half of the premises, and the exceptions on the part of the plaintiff must be overruled, and judgment entered in accordance with the former order of the court."

D. I. Ball and C. C. Thompson, for appellant. W. W. Wilbur and Wm. Schnur, for appellee.

DEAN, J. After a careful examination of the assignments of error on this appeal of James McGrew, we are of opinion the learned judge of the court below, in his findings of fact and conclusions of law, committed no error. On the testimony, the court found there was no eviction of Warner by title paramount from more than one-half the land; that, for all that appears, he could have re

mained in undisturbed possession of the other half. In view of this finding of the fact, to have held that the entry of Wentworth was constructively an entry for himself and tenants in common with him to more than the undivided half would have been error. The opinions of the learned judge of the court below on the hearing and exceptions to his judgment are full and to the point. They properly rule all the questions raised by this appeal. The assignments of error are overruled, the judgment is affirmed, and the appeal is dismissed, at costs of appellant.

(164 Pa. St. 115)

MCGREW v. HARMON. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

RECITALS IN Deeds-BrEACH OF COVENANT-EVI

DENCE.

In an action for breach of covenant for

quiet enjoyment, where the issue is as to the

validity of a tax title, a recital in the deed to their common grantor that the maker was seised in fee of the land conveyed is sufficient to sustain a finding of title out of the commonwealth.

Appeal from court of common pleas, Warren county; C. H. Noyes, Judge.

Assumpsit by James McGrew against Hosea Harmon. There was a judgment for plaintiff, from which defendant appeals. Affirmed.

This is the same case we have just considered on the appeal of plaintiff (30 Atl. 265), where the facts will be found stated.

DEAN, J. The learned judge of the court below, in a very clear and forcible opinion, properly disposed of all the questions raised on this appeal. The recital in the deed from Huidekoper to McKinney, the common grantor of both parties, that he was seised in fee of the title, was sufficient to warrant the finding of fact of title out of the commonwealth. That was, in effect, an averment of title in Huidekoper, and therefore, necessarily, that the commonwealth had no title to land which both parties claimed under Huidekoper. The assignments of error are overruled, the judgment is affirmed, and the appeal is dismissed, at costs of appellant.

same, defendant need not be served with a copy of the claim, to entitle plaintiff to judgment for want of affidavit of defense.

Appeal from court of common pleas, Venango county.

Scire facias sur municipal lien by Oil City against Mrs. L. K. Hartwell. Plaintiff had judgment for want of an affidavit of defense, which the court refused to strike off. Defendant appeals. Affirmed.

F. W. Hays, for appellant. Isaac Ash and P. M. Speer, for appellee.

As was

PER CURIAM. If the judgment against defendant for want of an affidavit of defense was not unauthorized, neither of the specifications of error can be sustained. They are both predicated on the assumption that the judgment was without authority of law, because no copy of plaintiff's claim was served on defendant, and hence plaintiff was not entitled to judgment. This assumption, and the conclusion drawn therefrom, would be correct if it were not for the fact that the writ of scire facias, in cases such as this, takes the place of what, under the old practice, was called a "declaration" or "narr.," and under the new a "statement." said by Mr. Chief Justice Gibson in McKinney v. Mehaffey, 7 Watts & S. 276, "a scire facias answers the purpose both of a writ and a declaration." No change in that regard has been effected by the act of 1887. The writ, served on the defendant in this case more than 15 days before return day, contains every ingredient necessary to a complete statement of claim under the provisions of that act. The municipal act of 1889 (article 15, § 22), relating to municipal liens provides "that reference being made, to the number and term to which, and the docket and page in which such claim or claims are registered, in the praecipe instituting the suit, it shall not be necessary to file a copy of the same." In this case that provision was strictly complied with, and the defendant was thus furnished with all the information she was entitled to, or could have had if plaintiff had served her with a copy of its claim. The record shows that the case was ripe for judgment when the same was entered, and hence there was no error in discharging the rule to show cause why it should not be stricken off. firmed.

(164 Pa. St. 17)

Judgment af

receive and transport cars, without delay or discrimination, of a connecting road, does not oblige it to move such cars when not provided with the appliances which ordinary care requires for the safety of the crew, and therefore does not relieve them from liability to their employés in negligently doing so.

3. It is not contributory negligence for a brakeman to. make a flying switch, where it is required by the nature of his employment.

4. Where a brakeman had not previously been on a car which he was to sidetrack by a flying switch, and claimed that he did not know that it was unprovided with handles to grasp after uncoupling it, his duty having compelled him to act at once without opportunity for inspection, the question of his contributory negligence is for the jury.

5. It is error to admit the opinion of an expert as to whether it was a defect in a freight car that there was nothing on the end of it for a brakeman, after uncoupling for a flying switch, to lay hold of.

6. While a railroad may prove not only written but oral instructions given to its assistant inspectors, its inspector cannot give his opinion as to what the duties of the assistants were under the instructions given by him to them.

7. An instruction that "no sane man would lose a leg for any corporation, but you are not to be guided by such a consideration as that in arriving at the amount of damages," is objectionable, as drawing away the mind from the legal measure of damages.

8. An instruction is improperly given where there is no evidence on which to base it.

Appeal from court of common pleas, Luzerne county.

Action by John F. Dooner against the Delaware & Hudson Canal for injuries received as a brakeman in defendant's employ. Judgment for plaintiff. Defendant appeals. Reversed.

Andrew H. McClintock and George R. Bedford, for appellant. L. H. Bennett and John McGahren, for appellee.

DEAN, J. The plaintiff, John F. Dooner, was a railroad brakeman. This had been his occupation for about five years, and for the last year prior to 31st of October, 1889, he was in the service of the defendant company. On that day, while in the performance of his duty as brakeman, he was run over by a freight car which defendant was transporting, and lost his leg. The accident came about in this way: The railroad of defendant begins at Wilkes Barre, where it connects with a number of railroads entering and passing through the city. It is the duty of defendant to accept and transport the cars of other roads over its lines on their way to destination. A regular freight train is made up on defendant's road, to run north from Wilkes Barre, about 2 o'clock in the afternoon of each day. On the day in question this train numbered 22 cars, in charge of a crew made up of a conductor, engineer, fireman, and four brakemen. The brakemen were placed on the train-First, Ross; second, Dooner, this plaintiff; third, May; and, fourth, Alles. Among the cars making up the train was one-No. 1,093-laden with apples, received from the Pennsylvania Railroad. This car was coupled to the engine,