164 Pa. 623 | Pa. | 1894
Opinión by
The circumstances out of which this litigation arises are substantially as follows: John Frick, the plaintiff, bought a farm from R. Coulter and E. Buffington in 1865. On the day on which he received his deed he made a mortgage, covering the same land, to R. Allshouse. The mortgage described the land as lying in Cowanshannock township, Armstrong county, and as being “ the same land conveyed by Coulter and Buffing-ton to John-Frick.” The mortgage was duly recorded in Armstrong county. After it fell due proceedings were had upon it resulting in a sale of the farm by the sheriff of .Armstrong county to the administrators of- Allshouse. The purchasers instituted proceedings before a justice of the peace and a jury to secure possession of the land, obtained a judgment in their favor, and on the third day of April, 1884, a writ was issued by the justice directing the sheriff to deliver possession to the plaintiff and collect the costs of the proceedings. On this writ the sheriff made return that he had delivered possession “ of the'1 within described premises in my bailiwick,” and collected the
The mode of their entry is described by Hobaugb, one of the defendants. He says they left Kittanning at one o’clock in the morning and drove to Frick’s, and “ up back of the barn, and I got out of the buggy and went up behind the barn.” There the3r waited until the family got up and Frick went out to the spring house, when the witness says: “I run into the house, got in, told Frick to come in, and shook hands, and Mrs. Frick began to cry when she saw who I was.” The family was allowed to eat their breakfast and feed the officers, and then the witness continues : “ The sheriff wanted them to move out and they said they would not, and him and I commenced earrying the goods out of the house.” There were three or four other persons there besides the sheriff and his deput3r, and with their help and the help of a team the goods were carried to the roadside some twenty or thirty rods away and there piled up along the fence, and the possession of the house delivered to the purchasers at sheriff’s sale.
The first question raised is one of fact, viz., in which county were the dwelling house and the thirty-three acres of land occupied by the plaintiff? The evidence upon this question was certainly sufficient, if believed by the jury, to sustain a finding that they were in Indiana count3'. If in Indiana count3r, the next question was one of law, viz., did process issued by a justice of the peace of Armstrong county authorize or justif}’ the acts of the officer to whom it was directed, done in another count3'-?
The learned judge before whom this case was tried was evi
But is it clear that the purchaser at sheriff’s sale did acquire title to the land in Indiana county ? The general rule is that
We notice that the sheriff and his deputy, who are responsible for putting the appellant out of possession, are joined in this action with the purchasers and others to whom the possession was delivered aird who, it is alleged, tore down the house. They certainly are not liable for the destruction of the house unless they are shown to have some other connection with it than that of putting the purchasers at sheriff’s sale into possession. Nor do we understand upon what theory the value of the house can be claimed as damages. The house was fixed to, and part of the land which was bound by the mortgage. Damages for an ouster are for the loss of possession, not for the value of the freehold or any part of it. But neither of these questions is necessarily involved in this appeal and what has been said upon them is therefore obiter dictum merely. Upon another trial the points submitted by the plaintiff will require attention, if, as seems probable, the case goes to, the jury.
The judgment is reversed and a venire facias de novo awarded.