18 Pa. Super. 245 | Pa. Super. Ct. | 1901
Opinion by
This was an action of ejectment for a tract of 175 acres, being part of a larger tract known as lot No. 15 in the Second Donation District containing about 375 acres. The evidence adduced by the plaintiff, if believed by the jury, would have warranted them in finding the following facts: James Gardner was the first settler upon lot No. 15, having gone into possession in 1829 or 1830, claiming to have a conveyance for the entire tract. The fact that he had in his possession what purported to be a deed, or an assignment of a deed for the tract was testified to by his sons, but there ivas no technical prooE of its execution, nor was it produced at the trial. James Gardner built a house upon the tract and died in possession of the entire tract in 1832. After his death the tract, excepting 100 acres sold by his administrator for payment of debts, was occupied by the
The possession of a tenant is the possession of his landlord, and where the relation of landlord and tenant is once established, as it was in this case, if the plaintiff’s witnesses are to be believed, it cannot be destroyed during the occupancy of the tenant, without express notice to the landlord that the tenant holds adversely: McGinnis v. Porter, 20 Pa. 80. There is not the slightest evidence that Bernard McAnallen ever set up an adverse claim in his own right to any part of the land. Unquestionably, therefore, his possession, if otherwise sufficient, may be tacked to that of James Gardner and his heirs in making out a title by adverse possession in the Gardner heirs. It is urged, however, that although he went into possession as tenant at will of the entire tract remaining after the sale of the 100 acres for payment of debts, yet if, before the expiration in 1851 of the period of twenty-one years from the date of the entry by James Gardner, there was a severance of the 100 acres upon which the house stood from the 175 acres described in this writ, and after such severance McAnallen abandoned possession of the 175 acres, the rightful owner, by such abandonment was placed in the same position, so far as this part of the land was concerned, as he* was before James Gardner took possession. Inasmuch as there is no evidence that any one but Bernard McAnallen had possession between 1842 and 1868, the correctness of the foregoing proposition may be conceded: Susquehanna, etc., R. R. Co. v. Quick, 68 Pa. 189. But what evidence is there of a severance, either in title or possession, of the 100 acres from the 175 acres in the lifetime of McAnallen ? What evidence is there that he abandoned the possession of
A broader question is, whether the plaintiff, who acquired all the rights of the heirs of James Gardner, could recover the possession from a mere intruder without proving a perfect title as against all the world. The court held that he could not. The correctness of this ruling is assailed in numerous assignments of error which we need not‘discuss separately, since they all raise the same question.
In Green v. Kellum, 23 Pa. 254, Mr. Justice Woodward said : “ According to the oldest principles of the common law, a disseisor has a good possession against everybody but the true owner, and his heir is in by a better right.” In Mobley v. Bruner, 59 Pa. 481, the rule was stated as follows by Mr. Justice Williams, who spoke for the court: “As against the de
The court was right in refusing to give binding instructions for the plaintiff. In any view that may be taken of it his case depended upon the testimony of witnesses. It was for the jury to pass on their credibility and to determine from the evidence whether the facts essential to a recovery by the plaintiff were established.
We cannot say that the record referred to in the seventeenth assignment of error was admissible in evidence for either of the specific purposes stated in the offer, namely to show who were the heirs of James Gardner, and to show that James Gardner died in the actual possession of the land. Not being admissible for the specific purposes stated in the offer we cannot say that the court erred in rejecting it, although it might have been admissible for some other purpose, as, for example, to show in connection with other evidence the assertion of dominion.over the land after the death of James Gardner. Moreover, the fact that 100 acres of the original tract were sold by the adminis
Judgment reversed and venire facias de novo awarded.