September Term 1919. Preston Crowl, Thomas J. Clark, C. R. Lark, supervisors of Ralpho Township, v. William E. Cardell. Certiorari. C. C. Lark, Esq., for the Plaintiffs. W. H. Unger, Esq., and W. L. Snyder, Esq., for the Defendant. Cummings, J., April 3, 1920.-This in an action brought by the plaintiffs, Supervisors of Ralpho Township, against the defendant, William E. Cardell, to recover from the defendant a penalty provided by the 699 Section of the Act of the General Assembly of 1917, P. L. 840, which section is as follows: "Section 699. The township commissioners or supervisors of townships of the first or second class may enter upon any lands or enclosures, and cut, open, maintain and repair such drains or ditches through the same as are necessary to carry the water from the roads, streets, lanes, or alleys. If any person shall stop, fill up, or injure any such drain or ditch, or shall divert or change the course thereof, without the authority of the commissioners or supervisors, such person shall for every such offense forfeit and pay a sum not less than four dollars nor more than twenty dollars." The exception filed by counsel for the defendant is: "For the reason that the cause of action in the above case was not cognizable before a justice of the peace, and that the proceedings were unjust and illegal for the reason that the justice of the peace had no jurisdiction of the same, the action being a tort." While we cannot agree with counsel that the justice could not entertain jurisdiction of an action brought for the recovery of the penalty provided by the act of 1917, Section 699, we must sustain the exception in this; that the record of the justice fails to show affirmatively jurisdiction. Nowhere in the record returned by the justice does it appear that the action was brought for the recovery of a penalty. The record of the justice shows that: "The defendant closed a ditch opened by the Township leading the water from the public road into Pocohontas Creek, at the property of the defendant. Plaintiff claims four dollars damages." If a proceeding were brought for the recovery of four dollars damage, as set out in the transcript of the Justice of the Peace, resulting from the closing of the ditch, then plainly the justice would not have jurisdiction. It is useless to cite any authorities on the proposition that the justice's record must affirmatively show jurisdiction. It is a well established principle of law and needs no citation. And now, to wit, April 3, 1920, for the reason that the record of the justice fails to show affirmatively jurisdiction of the cause of action, the exceptions are sustained, and the judgment of the justice reversed. MARTIN v. HOSHAUER. Ejectment-Mistake in Deed-Evidence Unrecorded Deed Notice. A prior unrecorded deed will carry title against a subsequent recorded deed where the latter grantee had actual notice of the former deed. It is the duty of the subsequent purchaser to make reasonable inquiry as to the title of one in possession. Where the description in a deed is insufficient or ambiguous, parol evidence is admissible to identify the land conveyed or ascertain its quantity. These are questions for a jury. Marks of a boundary on the ground control the courses and distances mentioned in the deed. A deed properly acknowledged is admissible in evidence though not recorded. Where, in an action of ejectment for a strip of land included in the plaintiff's deed, the defense was that the description in the deed was an error and that the plaintiff had notice that the strip was owned by and in possession of the defendant. it is not error to admit in evidence the defendant's deeds not recorded within ninety days, or to admit evidence aliunde as to what land was intended to be conveyed and that the defendants were in possession of the disputed land when the plaintiffs took title. In the Court of Common Pleas of Lancaster County. Rule for a new trial. May Term, 1918, No. 30. W. L. Calkins and B. F. Davis, for plaintiff and rule. April 19, 1919. Opinion by Hassler, J. This is an action of ejectment for a strip of land in Ephrata Borough, which the testimony shows contained a frontage on Chestnut Street of thirteen feet eleven inches. The trial resulted in a verdict for the defendant, and twenty-one reasons have been filed for a new trial. The facts developed at the trial are as follows: Prior to March 29, 1907, John Zudrell owned a tract of land on the Northwest corner of Chestnut Street and Washington Avenue in the Borough of Ephrata, fronting on Chestnut Street about one hundred and ninety-two feet. By a deed dated March 29, 1907, he conveyed one hundred and twelve feet, being the Western portion of it, to F. E. Bolster, who on October 5, 1916, conveyed the same to Samuel Hoshauer, the defendant in this case. The description of the land conveyed is exactly the same in both deeds. On April 1, 1907, three days after the conveyance to Bolster, he conveyed the Eastern portion of the tract of land, being bounded on the East by Washington Avenue, to Horace and W. S. Schload, who on March 16, 1912, conveyed the same to Henry C. Martin, the plaintiff in this case. After the conveyance of a portion of his land to F. E. Bolster, John Zudrell only had remaining seventy feet frontage on Chestnut Street, but the deed to the Schloads calls for a frontage of one hundred and twelve feet on that street. The deed from the Schloads to the plaintiff conveys a lot having a frontage of eighty-seven feet on the same street. That there was an error in the description of the land contained in one of the deeds given by John Zudrell is evident, as together they conveyed more land than he was the owner of. The deed from John Zudrell to F. E. Bolster, defendant's predecessor in title, was not recorded within ninety days of its delivery. The deed from Zudrell to Horace and W. S. Schload, plaintiff's predecessors in title, was recorded at once, and before that of Zudrell to Bolster, though the latter was recorded before the plaintiff purchased and obtained title to the Schload tract. As the deed of defendant's predecessor in title was not recorded as required by the recording act, the de fendant's predecessors in title, if they did not have actual notice of its existence and what was conveyed by it, were not bound by it, and their deed took priority over it, so that they were entitled to the whole frontage on Chestnut Street called for in it. The plaintiff then would have obtained title to the eighty-foot frontage called for in the deed from them to him. But if the plaintiff's predecessors in title took their deed with actual notice that part of the land conveyed in it had previously been conveyed to the defendant's predecessor in title, they did not acquire title to the land so conveyed, even though the prior deed was not recorded: Tate v. Clement, 176 Pa. 550. The plaintiff, however, would not be bound by the actual notice to the Schloads, but must have actual notice of the title of defendant's predecessor in title: Good v. Bausman, 6 W. N. 93; Phillips v. Stroup, 1 Mona. 517. Possession is notice to subsequent purchasers of whatever title the one in possession claims: Jamison v. Dimock, 95 Pa. 52. It is the duty of the subsequent purchaser to make reasonable inquiry as to the title of the one in possession and failure to do so deprives him of the right to claim title under his deed if the one in possession has title: Tolles' Appeal, 110 Pa. 331; Jackson v. McFadden, 4 W. N. 539; Marsh v. Nelson, 101 Pa. 51; Anderson v. Brimser, 129 Pa. 376; Jamison v. Dimock, 95 Pa. 52; Rowe v. Ream, 105 Pa. 543. It was proven at the trial, and not contradicted, that hoth lots were sold at a public sale in the fall of 1906; that the line between them was marked by stakes driven in the ground and a cut in the curb on Chestnut Street; that the defendant's predecessor in title took passsssion of the land under his deed to the stakes and the cut in the curb, and he and the defendant have been in possession of it ever since. It was also proven that the plaintiff's predecessor in title took possession of the lot purchased by them up to the stakes and the cut in the curb, and that they and the plaintiff have been in possession of it to that boundary since that time. This boundary line was subsequently marked by the plaintiff with a hedge and afterwards with an iron fence. The boundary line so marked by stakes and a ent in the curb, and by the hedge and iron fence, leaves the disputed strip of land in the possession of the defendant and his predecessor in title. The plaintiff for several years has leased from the defendant's predecessor in title the disputed strip, with other land, for farming purposes. The plaintiff did not at any time make any inquiry as to the title under which the defendant, or his predecessor in title, held possession of the land west of the boundary line marked as above described and which was the disputed strip. The defendant and his predecessor in title have been in possession of the disputed strip of land from the time of its conveyance by Zudrell, which was prior to the conveyance to the plaintiff's predecessor in title. The plaintiff, therefore, had actual notice of such title as the defendant and his predecessor in title claim, even though their deed was not recorded, and neither he, the plaintiff, nor his predecessor in title took by their deeds any title to the disputed strip of land. The plaintiff, therefore, was not entitled to a verdict. We might have submitted the case to the jury to find a verdict for the defendant if they believed this uncontradicted testimony, but we submitted the case most favorably to the defendant, and of that submission the reasons point out nothing of which the plaintiff can justly complain. We submitted to the jury the question of what was conveyed by the deed to the plaintiff, as it was inaccurate and ambiguous in two particulars. First: The courses and distances did not meet, as the eastern and western boundaries are parallel, the front eighty-seven feet long and the rear one only sixty-nine feet. Second: The deed called for thirty-two perches of land, whereas the land which the plaintiff claims he obtained by his deed amounts to forty-two perches. Under these circumstances we submitted to the jury evidence outside of the deed to show what land was intended to be, and actually was conveyed by it, and what the parties understood was conveyed. For this purpose we instructed them to consider the boundary marked on the land, first by stakes and the cut in the curb, and subsequently by the hedge and the iron fence, the lease by the plaintiff of the land in dispute and the quantity of land called for in the deed, and what it would amount to if the disputed strip was in plaintiff's tract, in order to arrive at their conclusion whether the plaintiff and his predecessor in title had no |