Greenwich Coal & Coke Co. v. Learn

234 Pa. 180 | Pa. | 1912

Opinion by

Mr. Justice Moschzisker,

The evidence produced by the defendant was full, complete, satisfactory and clear, and upon a favorable view the jury could have definitely found the boundaries and the quantity of land claimed; that the parties to the gift had been brought face to face; that the gift had been made in express, direct, positive and unambiguous language; that it had been repeatedly acknowledged by the donor, and as often asserted by the donee; that, in pursuance of the gift, the latter had gone upon the property and made valuable improvements, the cost of which he had defrayed out of his own and his wife’s money, with the knowledge and approval of the donor; that the change from father to son was notorious, and the defendant had maintained open, adverse and exclusive possession of the property continuously for more than twenty-one years; and that it was understood and agreed between the father and the son that the delivery of one-third of the grain by the latter to the former during his life was in payment for work done by the father in clearing the land. These findings would have been sufficient to sustain a verdict for the defendant: Mahon v. Baker, 26 Pa. 519; Sower v. Weaver, 84 Pa. 262; Hart v. Carroll, 85 Pa. 508; Allison v. Burns, 107 Pa. 50; Hyde-Murphy Co. v. Boyer, 229 Pa. 7; Caldwell v. Caldwell, 24 Pa. Superior Ct. 230. So much has been written upon the general law applicable to the subject in hand that it would serve no good purpose to review it here. The authorities all hold that a case such as the present is not within the Statute of Frauds, and that where a man under circumstances like these has spent the best part of his life improving a piece of land for a home, compensation in damages is not adequate.

At the time of the gift to the defendant there had not been any severance of the title to the coal, and, therefore, the “actual possession of the surface carried with it the actual possession downward perpendicularly through the various strata:” Caldwell v. Copeland, 37 Pa. 427. While there was some evidence that the defendant was in possession of the land before the completion of the gift, there was evidence to the contrary; hence that issue was for the jury: Hyde-Murphy Co. v. Boyer, 229 Pa. 7; Mahon v. Baker, 26 Pa. 519. The court could not have directed a verdict for the plaintiff, and no error was committed in refusing judgment non obstante veredicto in its favor. The first two assignments are overruled.

Although the trial judge failed to use the term “exclusive possession” in the particular part of the charge called to our attention by the third assignment, yet there was nothing in the language there used, or in that employed in any of the instructions, which excluded the idea of the necessity for “exclusive possession.” The jury were told that they must inquire “Was there an absolute gift.... ? Did Elias go into possession of the land, following this gift; do as his father had suggested, build his buildings upon it, pay taxes for a time, have it all to himself and claim it absolutely as his own.... ? If the gift was not of that character____and Peter Learn held control of this property during the occupancy of his son, Elias, then he is not entitled to a verdict, and the verdict will be for the plaintiff.” Again, in the defendant’s points the terms used are “undisturbed possession” and “claiming it as his own against every person and has so continued in such possession.” There is no doubt but that the jury must have understood the necessity for exclusive possession by the defendant. The assignment in question is overruled.

There is no merit in the fourth assignment. The trial judge left it to the jury to find what the real bargain was between the father and son as to the delivery of the one-third of the grain. He called attention to the contention on each side, and the language employed at the end of the instruction was evidently intended to convey to the jury the thought that they were to find which was true in point of fact, so that they might consider the entire case from that vieAV-point. The assignment is overruled.

The fifth assignment fails to quote all that was said by the court in connection with the instruction complained of therein. If the language employed is taken with its context, it is not likely that the jury could have understood it as a direction to find the particular fact referred to in favor of the defendant; it is more probable they understood that the court merely meant to call their attention to the fact that the defendant argued that they should have no difficulty in finding that Peter Learn made an absolute gift of the land to Elias. While this portion of the charge was not as nicely phrased as it might have been, we are not convinced that the plaintiff suffered any harm therefrom, and the assignment is overruled.

; We see no error in the sixth assignment. All the cases hold that the payment of taxes is an element in the proof of possession under a claim of title, and if the plaintiff desired the court to call attention to the fact that the land was assessed to Peter Learn prior to the date mentioned in the instruction, it should have so requested. The assignment is overruled.

Had the court affirmed the point in the seventh assignment it would have been equivalent to instructing the jury that the delivery of the grain was the payment of a rent, and that the verdict should be for the plaintiff. Whether or not the one-third of the grain was a rent depended upon the facts. It nowhere appeared in the evidence that Peter Learn had ever so designated it, and all his declarations were inconsistent with such an idea. As before indicated, that issue was for the jury and was properly submitted. This assignment is overruled.

The eighth assignment criticises the answer made by the trial judge to the effect that the running of the Statute of Limitations in favor of the defendant depended upon how they might find the fact as to whether or not Elias paid rent. We see no error in this, and the assignment is overruled.

The matters covered by the next four assignments are sufficiently disposed of in our discussion of the third assignment. These assignments are overruled.

Although there was no testimony to show that the defendant had “grown old,” yet we cannot say that any substantial harm was done by the instruction complained of in the thirteenth assignment; it is overruled.

The testimony quoted in the next two assignments, concerning declarations by the defendant and others, was properly admitted. As to the admission of such testimony, we have said, “His (the occupant’s) own declarations while in possession of the premises as well as the understanding of his neighbors, was proper evidence of the character of his claim:" Kennedy v. Wible, 11 Atl. Repr. 98. “Such declarations accompanying his acts, constitute part of the res gestas, and as such are always received in evidence in questions of possession:" Potts v. Everhart, 26 Pa. 493. “The character of possession of a party as stated by himself while in possession is part of the res gestee”: Susquehanna & Wyoming Valley R. R. & Coal Co. v. Quick, 68 Pa. 189. These assignments are overruled.

Before concluding we note that it is not clear how much of the testimony of the defendant was intended to be stricken from the record; but we do not take it that the first part covering the language and the time of the gift was affected by the order of the court. However that may be, whether the bargain to pay the one-third of the grain to his father was made at the time of the gift or later on, would not necessarily fix the nature of the obligation. It might have been made after the defendant went into possession, independently of the gift, out of appreciation of the services performed by his father in clearing the property, without of necessity being a rent or acknowledgment of Peter Learn’s continued control over the land; or it might have been a unilateral contract made at the time of the gift, and yet not be a rent or in the nature thereof. The repeated declarations of Peter Learn to the effect that he had given the land to his son, and as to the arrangement for the delivery of the grain, made when the parties'were face to face, accompanied by the act of the assessment of the land to the defendant by the direction of his father, constituted strong evidence of a gift: Sower v. Weaver, 84 Pa. 262, 269; Matthews v. Matthews, 11 Pa. Superior Ct. 381; Caldwell v. Caldwell, 24 Pa. Superior Ct. 230. It may also be well to note that the equities of this case are with the defendant. He was not only in actual possession of the land, which was enough to put the purchasers of the coal upon inquiry as to his title (Hottenstein v. Lerch, 104 Pa. 454; Rowe v. Ream, 105 Pa., 543; White v. Patterson, 139 Pa. 429), but, if the evidence of his witnesses is to be believed, and the verdict shows that it was, he served actual notice of his claim of title before any purchase money was paid. After reading the testimony and reviewing the entire record, we feel that the evidence was sufficient to sustain the verdict and that no reversible error was committed in the trial.

The judgment of the court below is affirmed.