168 Pa. 510 | Pa. | 1895
Opinion by
There was evidence in the case from which the jury might have found that Greenwald and Kahn were the immediate successors of McQuaide in the occupancy of the lots in question and that he was in possession of them as early as 1860. At a sheriff’s sale in 1866 they acquired his title to or interest in them, and thereafter for a period of nineteen years they used them for “ droveyard purposes ” and paid all the taxes on them, including the assessments for municipal improvements. It is a circumstance worthy of note that while McQuaide, Greenwald and Kahn were living Hasson and Duff who owned the lots in 1856 offered no resistance to their possession or the possession of their successors in title. In December, 1892, Has-son conveyed his interest in them to his brother, the present plaintiff, who having obtained a deed from the heirs of Duff in January, 1893, leased them in April of that year to Winters. This was the first assertion by lease of the Hasson and Duff title, and it was obviously made to enable the plaintiffs to secure possession and compel the defendant to abandon his claim, or bring suit to enforce it. The evidence submitted on the trial afforded but slight ground, if any, for an inference that Greenwald and Kahn were at any time the tenants of Hasson and Duff, or that they paid the taxes for the use of the lots. The declaration testified to by Kraft as having been made to him by Hasson in 1865 was not sufficient to warrant it. That declaration, if made, was quite as consistent with a possession under McQuaide whose title Greenwald and Kahn acquired the next year as a possession under Hasson and Duff. Besides, an inference that the taxes were paid for the use of the lots was opposed to the admissions made on the trial, and to the testimony of J. R. Hasson the plaintiffs’ grantor. He testified distinctly that he paid all the taxes, directly, or advanced money
There was no evidence showing that McQuaide bought or leased the lots of Hasson and Duff, but there was evidence of his possession of them anterior to that of Greenwald and Kahn, and of their purchase of the lots at a judicial sale of them as his. The sale indicated that it was supposed by the creditors of McQuaide that he owned or had an interest in the lots and that such was the belief of Greenwald and Kahn is evidenced by their purchase of them. Their possession and payment of taxes and assessments for street improvements were therefore naturally referable to a claim by them of ownership of the lots on which the assessments were laid. But as it was not shown that McQuaide had title to the lots the purchasers took nothing by the sale, and the evidence of it .was valuable only as throwing light upon the nature and character of their claim and possession. The conditions under which the case was tried were not favorable to the ascertainment of the facts essential to a correct decision of it. The parties whose possession constituted the principal reliance of the defendant were dead and their death rendered the plaintiffs’ grantor incompetent to explain that possession. The litigants were therefore compelled to rely for their evidence, respecting the possession of the lots, upon the recollection of persons residing in the neighborhood of them. The evidence so obtained covered a period of thirty years and was somewhat conflicting. It was sufficient, however, to warrant the jury in finding a possession which clothed the defendant with title under the statute of limitations, and so the learned court below regarded it. Was it submitted to them with proper instructions? Whilst the attention of the jury was called to every possible phase of the plaintiffs’ contention it seems to us that the defendant’s case was not adequately-presented to them. From what was said in the charge respecting the declaration testified to by Kraft as having been made to him by Kahn in 1865, the jury may have inferred that the
The specifications of error are sustained, the judgment is reversed and a venire facias de novo is awarded.
