87 Pa. 286 | Pa. | 1878
delivered the opinion of the court,
In order to save a judgment belonging to the estate of William Irvin, the executors above named, took an assignment from Mr. Krebs, their attorney, of a sheriff’s deed for the land in suit, which had been sold as the property of William A. Dunlap, on an execution issued from a judgment belonging to J. B. Graham & Son. This was altogether proper, and the title being in this manner vested in Irvin and Graham, they were the proper persons to institute and maintain this suit.
But as the title to the land vested in them extra the will of the testator, they hold not as executors but as trustees; the trust arising from the duty and good faith due from them to the estate intrusted to their care. The action, then, not being one by executors, it does not, for this reason, fall within the proviso of the Act of 1869, and had there been nothing else in the way, the defendant might have been admitted as a witness in his own behalf. But the offer, covered by the defendant’s seventh assignment, proposed proof, by Chase, of the declarations of Isaac Dunlap, the deceased assignor
The defendant’s sixth point was well ruled. Whilst it is undoubtedly true, that one claiming the equitable title to land, as against his vendor, who is rightfully in possession, and to whom the purchase-money has not been fully paid, cannot recover in ejectment without a tender of such purchase-money first having been made; yet such is not the rule where the vendor, claiming under an adverse title, intrudes upon the lawful possession of his vendee: Harris v. Bell, 10 S. & R. 39. In such case, full justice is done by a conditional verdict such as the court directed in the present case.
The next, and only other assignment, which we think necessary to notice, is the sixth. This covers the rejection of the record of the Court of Common Pleas of Clearfield county, showing an action of ejectment brought to January term 1859, by John M. Chase against Stacy W. Thompson et al., in which there was a verdict for the plaintiff on the 22d of June 1866. This was offered as notice to William A. Dunlap of Chase’s claim prior to his purchase from Thompson, and as persuasive evidence on the question in issue.
The first part of this proposition amounts to nothing, for, at the time of Dunlap’s purchase, the claim of Chase was adverse to the title under which Dunlap held and unconnected with it, so that the question of notice was not in the case, since, if Chase were entitled to the property under his Scuff title, he would recover without regard to whether his adversaries had or had not notice. As to the latter part of the offer, that must depend upon whether or not the plaintiff’s title was passed upon in that action. To ascertain this we must next revert to that title. It seems that the property in controversy was covered by a warrant from the Commonwealth to William King, dated June 8th 1784, which was duly surveyed and returned to the land office in 1785. Afterwards, in 1835, one hundred acres of the land covered by the above-named warrant vested in Isaac Dunlap who, on the 26th of December 1842, conveyed the same to Stacy W. and Isaac Thompson. In 1846 William Irvin bought this property at a sheriff’s sale upon a judgment which he held against the Thompsons. Whilst Irvin thus held the land, Stacy W. Thompson agreed, by articles, dated September 19th 1859, to sell the same to William A. Dunlap, whose equity, as we have already shown, the plaintiffs now own, and in 1864 William Irvin reconveyed, by deed, to Thompson, Dunlap’s vendor. On the other hand, at the time of the trial of the ejectment in 1866, the defendant, Chase, claimed title under a warrant to one George Scuff, surveyed in 1793, and he afterwards, June 19th 1868, obtained
It is thus apparent, that at the time of the commencement of the ejectment mentioned in the defendant’s offer, Stacy W. Thompson had no title to the land then claimed by Chase. Now, in order that a former ejectment may have force as evidence in a subsequent suit, it is necessary that it should have been not only between the same parties and for the same land, but also that it should have involved the same title : Treaster v. Fleisher, 7 W. & S. 137. Here, however, the title, now in controversy, was not involved in the prior ejectment, inasmuch as Thompson had no title whatever at the impetration of that writ. It is true, that having obtained a deed from Irvin, before the time of the trial, he might have used it as he might have used any outstanding title, but, as at that .time, by reason of his previous sale to Dunlap, he had but the legal title the verdict could only operate, if at all, upon that title.
The judgment is affirmed.
