219 Pa. 375 | Pa. | 1908
Opinion by
The Act of June 10, 1893, P. L. 415, was intended to settle title to land as well as possession, and the requirement of sec. 2 as to the petitioner is that he shall be in possession of the land “ claiming to hold or own possession of the same by any right or title whatsoever, which right or title or right of possession shall be disputed,” etc. It is not merely the petitioner’s possession which must be disputed and which he may defend under the act, but the title by which his possession is held. The argument of appellant is that the plaintiff’s present right of possession and her possession in fact are not disputed, the appellant’s claim being only to a contingent right upon the death of Keefer whom she avers to be the life tenant.
The very point was decided in Stamey v. Barkley, 211 Pa. 313, where the petitioner’s present right of possession was not disputed, but the adverse right set up was of a contract to purchase at a future time, and the contest was on one hand to remove the cloud on petitioner’s title and on the other to maintain it.
And the same point was again decided in Smith v. Hibbs, 213 Pa. 202, where a remainder-man making no claim to present possession, but duly served along with the life tenant, was held to be barred by the proceeding.
A second objection by appellant is that the petitioner in possession was made the plaintiff in the issue. But it does not appear how this did any harm to appellant. In general the better practice is to make the petitioner the defendant in analogy to ejectment where the party in possession is not called on to disclose his title until he knows by whom and on what grounds it is attacked. But as said in Üllom v. Hughes, 201 Pa. 305, the issue both as to substance and form is under the entire control of the court, to bo molded to fit the requirements of the real controversy between the parties. It may well be as argued by appellant that some cases will be found to present difficulties in the application of the statute, but these are not likely to be insuperable. It is a remedial act with great elasticity under the control of the courts and the increasing resort to it shows the general judgment of the profession that it is effective as well as convenient. It should be construed and applied in furtherance of this view.
The deed from Lambert and wife to Eliza and Joseph Keefer, assuming it to be read as the parties here and the court below read it, clearly conveyed a fee tail special which the statute converted into a fee simple. The only doubt about it might be whether the heirs of the body of the Keefers are properly to be included among the parties of the second part. They are only mentioned in the premises to the deed while the operative words of the grant and the habendum are to
Judgment affirmed:
