Appeal, No. 136 | Pa. | Jan 3, 1910
Opinion by
The title to the land involved in this ejectment passed out of the commonwealth in 1817, and Mary Robb acquired title to it by deed dated September 15, 1832. After her death it was sold in 1837 by her administrator, the father of the appellant, under an order of the orphans’ court for the payment of debts, and the .title which the appellant claims, passed to him through sundry conveyances, starting with the deed from Mary Robb’s administrator to Hugh Toner and ending with that of the sheriff of Allegheny county to himself. Though an unbroken chain of title by deed was shown in the appellant, the proof submitted by the appellee, whose claim to title by adverse possession was sustained by the jury, was that from 1837 to 1897 — a period of sixty years — posssesion of the land had never been taken by the grantee of Mary Robb’s administrator nor by any subsequent grantee claiming under Toner.
The adverse possession upon which the appellee relied and recovered started in 1865. In that year — twenty-seven years after the sale by Mary Robb’s administrator — Jane Robb, the widow of Oliver Robb, a son of Mary Robb, was in possession of the farm, living on it and claiming it as her own. There was no title in her out of Mary Robb. By her last will and testament, admitted to probate October 12, 1869, Jane Robb devised the farm to her son Robert. On August 16, 1870, he executed a general warranty deed for the coal underlying the property to Thomas J. Keenan, Malcolm Hay and Robert Woods. In 1874 his interest in the farm, excepting the coal, was sold at sheriff’s sale, and, by various conveyances, it finally became vested in Herman Handel, to whom Thomas J. Keenan executed a deed for the one-third interest in the coal which Robert Robb had undertaken to convey to him in
It is most earnestly contended that, as the title to two-thirds of the coal is still outstanding in Malcolm Hay and Robert Woods, or their representatives, under the deed of 1870 from Robert Robb, a general verdict in favor of the plaintiff for the land, including the coal, ought not to be sustained. While at first blush this may seem plausible, it is clear, upon reflection, that it cannot avail the appellant. When Robert Robb conveyed the coal in 1870 he had no interest in it nor in the surface above it. In 1865 — five years before — Jane Robb, his mother, became the adverse occupant of the property, and for five years after her death he continued the adverse possession as her devisee, but during those ten years neither she nor he acquired any right in the property as against the real owner or owners, and against them nothing could have been acquired by adverse possession until the full statutory period of twenty-one years’ adverse possession had expired. During all those twenty-one years the trespassers could at any time have been driven from the land by the holders of the paper title. During that period there was no title at all in Jane Robb or in anyone claiming under her as the adverse occupier of the premises. In 1886, and not before, title by adverse possession became rooted in the land, but its roots went no deeper than 1886. “If, according to Lord Mansfield, the right of possession is taken away from the former owner, and according to Chief Justice Tilghman, it is acquired by the disseisor’s occupancy for the statutory period, Judge Gibson was strictly accurate when he said, in Graffius v. Tottenham, 1 W. & S. 494, that the effect of the statute was to transfer to the adverse occupant the title against which it has run. He added, ‘the title of the original owner is unaffected and untrammelled till the last moment,
In 1886, when title by adverse possession vested in Handel, then in possession of the surface, not only it, but what was beneath it, vested in him; but when the title so vested in Mm he was in the same position as Robb would have been in 1886, if still in adverse possession of the property, claiming ownership in it by such possession. Having undertaken to convey the coal when he had no title to it, if confronted by his conveyance of the same at the time of his acquisition of title by adverse possession, he would have been estopped, as against his grantees, from denying their equitable ownership in the coal and could have been compelled to convey to them. “It is not to be doubted that a vendor who undertakes to sell a full title for a valuable consideration, when he has less than a fee simple, but afterwards acquires the fee, holds it in trust for Ms vendee, and will be decreed to convey it to his use:’’ Clark v. Martin, 49 Pa. 299" court="Pa." date_filed="1865-03-28" href="https://app.midpage.ai/document/clark-v-martin-6232463?utm_source=webapp" opinion_id="6232463">49 Pa. 299. In Chew v. Barnet, 11 S. & R. 389, Judge James Wilson conveyed to Chew before he had title to the property. A conveyance was subsequently made to Mm by Ms vendors under articles of agreement with him. To secure the purchase money he executed a mortgage upon the property upon which it was subsequently sold at sheriff’s sale. When Chew, in an action of ejectment, sought to recover the property from the sheriff’s vendees, it was held that their title was paramount to Ms, and it was said by Gibson, J.: “What is the nature of the estate wMch Mr. Chew acquired by the conveyance from Judge Wilson? When that conveyance was executed, the legal title was in Jeremiah Parker, by patents from the commonwealth;
In 1902 an ejectment was brought for this land by Rebecca
Nothing in the assignments of error calls for further discussion. They are all overruled and the judgment is affirmed.