93 Pa. Super. 452 | Pa. Super. Ct. | 1928
Argued April 30, 1928.
The subject of this controversy is a body of land containing two and a half acres on which is a log *454
house. The plaintiff exhibited a legal title through a succession of conveyances, the last of which was a sheriff's sale, resulting from a foreclosure proceeding on a mortgage which was a lien on a large body of land of which that portion now claimed by the plaintiff formed a part. The defense presented by the appellee was that he had been in such actual and exclusive possession of the premises for more than twenty-one years as gave him a legal title, and on this issue the case went to the jury. The evidence offered was sufficient to show that the defendant went into the premises in the year 1900, and that he maintained an exclusive, continuous, open and hostile possession thereof for a period of more than twenty-one years prior to the bringing of the plaintiff's action. To this defense the plaintiff replied, (1) that by the sale of the mortgaged premises the continuity of the defendant's occupancy was interrupted; (2) that about fourteen years after the defendant's entry, the secretary of the plaintiff company went to the defendant who was then on the premises and stated to him that the property was for sale, that it would be sold soon; and that he, the defendant, would have to move, to which the latter replied that he had no place to go if they put him off; thereupon Mr. Feist, the secretary, said to him, we have no use for the log house, and as long as you agree to move, we have no objection to your staying here until we sell; Mr. Nye then said he would move at any time Mr. Feist requested. The testimony relating to this conversation was denied by the defendant, and the court submitted to the jury the question whether there had been such admission of lack of title by the defendant, as was testified to by Mr. Feist and Mr. Lawton who accompanied him. The verdict established the defendant's contention on all the questions arising on the parole evidence introduced, and the only subject for consideration on this appeal is whether when a mortgage of the record owner was *455
foreclosed during the adverse possession, the sale of the land under the scire facias to which the defendant was made a party by the sheriff when he served the writ had the effect to break the continuity of the defendant's adverse possession, and whether after the sale there was entry by the purchaser, as claimed by the appellant. It will be observed that the thing sold by the sheriff was the title existing in the mortgagor. The defendant was not named as a party in the praecipe for the writ of scire facias, nor in the writ of levari facias. He was brought into the case when the sheriff's deputy found him on the premises and made him a party to be notified pursuant to the provisions of the Act of 1901, P.L. 614, as amended by the Act of 1903, P.L. 263. The effect of such service was not however to bind the defendant with respect to his title to the conclusiveness of the judgment to be thereafter obtained on the mortgage. The scire facias was not a writ to determine a title as against an adverse owner. It was a process for the collection of the amount due on the mortgage. A judgment obtained thereby became a lien on all of the land described in the writ which belonged to the mortgagor. There was no privity of estate between the defendant and the plaintiff. He was not interested therefore in the validity of the plaintiff's claim in the mortgage proceeding. The sale on the mortgage had the effect to put the plaintiff in the mortgagor's place as to title, but it was not effective to defeat the estate which the defendant claimed adversely to the title of the mortgagor: Excelsior Savings Fund v. Cochran,
An examination of the testimony brings us to the conclusion that there was not such entry on the land by the purchaser at sheriff's sale as would break the continuity of the defendant's occupancy. The casual *456
crossing of the two-acre lot by Feist, secretary of the Home Land Company, purchased at sheriff's sale, in connection with the control of the other 146 acres covered by the mortgage, could not have that effect. He stated that he was at the house at the time the conversation took place about surrendering the premises in 1914, but his evidence was discredited by the jury in the face of the defendant's contradiction. It does not appear that he was there at any subsequent time asserting the title of the Land Company. "In order to defeat an actual adverse possession, which, if continued, would give title under the statute, the entry must be of such a character, and accompanied by such notice, as clearly indicates to the occupant that his possession is invaded and his right challenged": O'Hara v. Richardson,
The assignment of error is therefore overruled and the judgment affirmed.
