17 Pa. Super. 476 | Pa. Super. Ct. | 1901
Opinion by
This was an ejectment. The premises in dispute were sold
The claim of the plaintiff is based entirely upon the alleged adverse possession of Dr. Marshman which he says began in 1855 and continued uninterruptedly at least until 1883, at which time he alleges he acquired a complete title. “The principle is well settled that to make a disseisen that will be the commencement of a new title, producing a change by which the estate is taken from the rightful owner and placed in the wrongdoer, the possession taken by the disseisor must be hostile or adverse in its character, importing a denial of the owner’s title of the property claimed; otherwise however open, notorious, constant and long continued it may be, the owner’s action will not be barred. The mere fact that the claimant has had possession of the land for the statutory period will not suffice to satisfy the rule requiring the disseisor’s possession to be hostile.” 1 Cyclopedia of Law and Procedure 1026. “ Where a party relies on the statute of limitations as giving him a positive title, one with which he can successfully assail even the holder of the legal title in possession, he ought to be held to show all the elements constituting it, conjoined and united in his hands, and that he, or those under whom he claims, entered into the possession of the premises, claiming the same as and for his own property and that as such he has held actual, adverse, continued, visible, notorious, dis
In this view of the case the offers to introduce in evidence the mechanic’s lien entered in 1877, upon which the property was sold to Ashbrook and by Ashbrook to Dr. Marshman, together with the deeds from the sheriff to Ashbrook and from Ashbrook to Marshman, should have been rejected, because entirely irrelevant.
Specific exception is taken to the language of the court contained in the third assignment of error: “ So, if you should find under the evidence here that Dr. Marshman not only had possession of this property in 1855, under the arrangement be
• and, if he did not get the deed, then it was incumbent upon Boyd to take some steps to oust him of possession and pay back to him the purchase money, if any had been paid.” No such duty devolved upon Boyd or those claiming under him. As already remarked, there was no evidence to show when the purchase money was payable or how or to whom payable, nor was it shown or attempted to be shown that the balance of purchase money had ever been tendered. It was no more incumbent upon Boyd to bring an action of assumpsit for the recovery of the purchase money or an equitable ejectment to recover posssession of the property, by reason of its nonpayment than it was upon Marshman to attempt to enforce specific performance of the contract.
The court instructed the jury properly as .to what constituted adverse possession but it was error to allow them to find that the elements which enter into and constitute adverse possession were present in this case. “ What constitutes adverse possession is a question of law for the court but the facts supporting the claim must be established to the satisfaction of the jury like any other question of fact. The reason for this rule is the fact that title being shown the law presumes the true owner to be in possession until adverse possession is proved to begin: ” 3 Kerr on Real Property, 2295.
The appellee in his printed argument here seems to shift his ground and claim that Marshman, under whom the plaintiff claimed, had acquired a title by a presumptive grant. Such a title is “ founded on the presumption that the uninterrupted possession for a long period of years is established on a just right, without which the person would not have been suffered to continue in the enjoyment of the land.” “In this country titles by prescription rest upon the presumption of the previous grant or agreement which has been lost by lapse of time: ” 3 Kerr on Real Property, 2290. But in his abstract of title and also in the trial below the only ground upon which the right to a recovery was based was that of adverse possession. This was the claim which the defendants were called upon to meet; upon this theory the case was tried and submitted to the
Judgment reversed and a new venire awarded.