79 Pa. Super. 592 | Pa. Super. Ct. | 1922
Opinion by
This is an action of ejectment for a tract of land in Georges Township, Fayette County. Esau Hardin, on April 28, 1885, executed and acknowledged a deed conveying the tract to John Mickey, which deed was subsequently recorded in the County of Fayette. Hardin continued in the actual and exclusive possession of the tract, farming it, cutting and selling timber and mining and selling coal to his neighbors, until 1907, when he executed and delivered a deed conveying the tract to the present defendants, and shortly afterwards died. The defendants have since continued in the exclusive possession of the tract. John Mickey died in 1899, whereupon Ms interest, if any he had in the tract, descended to the plaintiffs in this action, who, in October, 1913, brought this action. Upon the trial in the court below the learned judge gave binding instructions in favor of the plaintiffs and from the judgment on the verdict the defendants appealed.
There was no doubt, under the evidence, that Esau Hardin and his successors in title, these defendants, had been in the actual, open and exclusive possession of the tract of land ever since Hardin executed the deed to Mickey, in 1885, and that possession had been continuous until October, 1913, when this action was brought, a period of more than twenty-eight years. Had this possession been in its inception adverse to the record title of Mickey there could have been no question that the claim of the defendants was well founded. Hardin was, however, the grantor of Mickey, and his possession, after the delivery of the deed, is to be regarded as that of a trustee for Mickey, so far as the possession was concerned. If he wished to change the character of the pos
The defendants offered to prove the declarations of Esau Hardin made while in possession of the land and explanatory of the character of that possession, and the exclusion of that testimony is the subject of the first assignment of error. The character of the possession of a party, as stated by himself, while in possession is part of the res gestas. They are evidence for him on the same principle that the facts of taking possession, of maintaining it, of marking lines and corners, and of making improvements, are evidence in his favor. The declarations accompanying and explanatory, are part of the acts themselves: Sample v. Robb, 16 Pa. 320; Sheaffer v. Eakman, 56 Pa. 151; Greenwich C. & C. Co. v.
The remaining assignments of error are founded on exceptions to the action of the court in giving binding instructions in favor of the plaintiff. The testimony of John Low would have warranted a finding that shortly after the deed from Hardin to Mickey was executed he had a conversation with Mickey in which the latter declared that he did not own the Hardin farm. The testimony of James Huey, if true, established that the witness had, some years after the deed was executed been sent by members of the school board to see if they could get a part of the tract of land for the erection of a schoolhouse; that the witness went to Mr. Mickey and spoke to him about it and that Mr. Mickey told him “to go to Esau Hardin that he had nothing to do with it; that he, Mickey, had nothing to do with it.” If the testimony of this witness was true, Mickey not only knew that Hardin was holding for himself, but acknowledged that he had the right to so hold. We are of opinion that the case was for the jury and that the court erred in giving binding instructions in favor of the plaintiff.
The judgment is reversed with a venire facias de novo.