Douglas v. Irvine

126 Pa. 643 | Pa. | 1889

Per Curiam:

If we take the isolated portions of the charge embraced in the first, third and fourth specification of error, and sever their connection from the charge as a whole, we might, perhaps, discover slight error. This is well illustrated by the fourth specification, where complaint is made that the learned judge instructed the jury that, “We say to you that the statute commenced running in the lifetime of Guy C. Irvine, audit would continue notwithstanding the minority of George W. Irvine’s children.” An examination of the charge shows that the learned judge used this language in reference to the question that he was discussing and which he submitted to the jury, viz.: whether George W. Irvine was holding and occupying the land adversely to Guy C. Irvine and in his own right as owner, and by the instruction complained of he intended, and it must have been so understood by the jury, that if he was so holding adversely, the statute commenced to run in the lifetime of Guy C. Irvine, notwithstanding the minority of the children of the said George W. Irvine. So understood the charge was free from error.

The first and second specifications are without merit. As regards the first, it is sufficient to say that the survey made by the executors of Guy C. Irvine in 1869, was not such an entry as would toll the statute. It was not followed up by an ejectment within one year, as required by the act of April 13, 1859, P. L. 603. The verdict of the jury establishes the fact that the statute commenced to run in the lifetime of Guy C. Trvine. When the statute has commenced to run, no subsequent disability will stop it: Lynch v. Cox, 23 Pa. 265; Henry v. Carson, 59 Pa. 307. It is therefore clear that the alleged entry, to have been of any avail, should have been followed up by an ejectment within one year thereafter, even though the parties in whose interest the entry was made were minors. The fact that the latter were living with their father on the premises, is not material. They had no legal possession of the premises. Their possession was the possession of their father. The court in rejecting the offer of evidence referred to in the second assignment, granted permission to the defendant to prove that William Irvine, one of the devisees under the will of Guy C. Irvine, was in the exclusive possession of the land. This of course could not be done, as he was a mere boy living with his father. It would be a singular circumstance if this boy could break the continuity of his father’s adverse possession by a declaration of this kind.

Judgment affirmed.