216 Pa. 205 | Pa. | 1907
Opinion by
The single question now before us is whether the plaintiff’s remedy is under the Act of March 8,1889, P. L. 10, or the Act of June 10, 1893, P. L. 415. The purpose of both acts is the same but the methods of procedure are different. Neither act provides expressly for the settlement of the preliminary question of possession in fact, whereas in this case it is claimed by both parties. The language of the act of 1889 (as amended by the Act of April 16, 1903, P. L. 212) is • “ whenever any person not being in possession thereof shall claim or have an apparent interest in or title to real estate, it shall be lawful for any person in possession thereof claiming title to the same, to make application to the court,” etc. On the appearance of these two facts, the possession by plaintiff and the claim of title by the other party, without more, the rule is to be granted to bring ejectment or show cause why it should not be done. The statute does not appear to contemplate any dispute as to present possession, and has certainly made no express provision for it. It would not be straining the act very far to hold if necessary that as the fact of possession is a required preliminary to the exercise of the power granted, the court ex necessitate must decide it or the grant would be nugatory. But there is no necessity to resort to that construction, however allowable.
* The act of 1893, though as already said making no express provision for decision of this preliminary question, does furnish a procedure easily adapted to that purpose and more in accordance with the general principle that questions of fact shall be settled by a jury. The language of section second, is “ When any person .... shall be in possession of any lands .... claiming to hold or own possession of the same by any right or title whatsoever, which right or title or right of possession
In the case now in hand the learned judge properly held that the only material fact before him was that of possession, and he proceeded to find that fact on the evidence produced at the hearing. But we cannot say that the possession was not in substantial dispute. The land in question is a strip adjoining a public street and claimed by the defendant as part of if. The acts of possession on the part of plaintiff were re
The other questions argued by appellant relating to the merits of the respective titles are not yet ripe for adjudication. They belong to the trial of the issue hereafter.
The order making absolute the rule to bring ejectment is reversed, with leave to the court below either to discharge the rule, or to permit the plaintiff to amend his petition to one for a rule for an issue under the act of 1893.