8 Watts 536 | Pa. | 1839
The opinion of the Court was delivered by
The first error assigned is a bill of exception to
The two remaining errors relate to the same question, and will, therefore, be considered together, or as one. The question raised by them is, whether the court below did not err in charging the jury as they did, by instructing them, in effect, that although Smith had obtained his first possession of the land in dispute from Mrs French, then the tenant of Robert Cooper, from whom the plaintiffs derive their claim as his heirs-at-law, yet because Cooper, the ancestor, and the plaintiffs had delayed the commencement and prosecution of their action to recover the possession of Smith, from the year 1S22 or 1823, when he obtained it first, till the time of bringing this suit, they must be considered as having abandoned not only their original pre-emption claim which they set up to the land, but likewise their right to demaud and recover the possession thereof, which Smith acquired from the tenant of their ancestor. In this we think the court erred; because, as to that portion of the land in dispute, which Smith obtained the possession of from Mrs French, it is clear that, upon principles of sound policy, law, and reason, he cannot in this action claim to be in any better situation, or be permitted to set up any other defence than she could do were she the defendant instead of him. Mrs French, according to her testimony, undoubtedly held as a tenant under Cooper, for his use, the possession of that portion of the land which he gave to her for that purpose; and Smith, having accepted of it from her, must be considered as holding it in the same manner that she did for the use of Cooper or his heirs, the plaintiffs. Jackson v. Harder, 4 Johns. Rep. 202; Jackson v. Whilford, 2 Caines's Rep. 215; Brant v. Livermore, 10 Johns. Rep. 358; 2 Camp. 12; Jackson v. Hinman, 10 Johns. Rep. 292; Jackson v. M’Leod, 12 Ibid. 182; Galloway v. Ogle, 3 Binn. 468. It is obvious that the title of a landlord to real estate, though perfectly good and indefeasible, would frequently be rendered the next thing to worthless, if his tenants, or third persons, prevailing upon the tenants to let them into possession, were permitted to call his title in question, and to make him show that it was better than any other to the land, before they should be
Judgment reversed, and a venire de novo awarded.