29 Pa. 415 | Pa. | 1857
The opinion of the court was delivered by
Formerly the plaintiff’s testator was in possession of this tract of land, and it was decided, 12 State R. 296, that he was there without title, and he was ejected under a judgment affirmed in this court. This ejectment is brought in the nature of a bill in equity to compel payment for the improvements made during the possession under the condemned title, and we presume, though this does not appear, that the defendants are mere tenants under the Squibb title. The plaintiffs suppose that they have an equity, arising out of the circumstances attending the origin of their title, on which to found their claim for improvements.
For the sake of argument, we may concede this. What then was the character of this equity ? It did not constitute a title to the land, but only a right to retain the possession of it until a debt was paid. It was therefore no more than an equitable lien, incident to the possession and depending upon it. If it existed at all, it was entitled by our law to protection by means of an equitable verdict and judgment, when the adverse claim was set up in the former action of ejectment.
Can it now be made the subject of an independent action of ejectment? We think not; we have no precedent for it, and we think there ought to be none. If the plaintiff’s testator had such a lien, he ought to have presented it as a defence in the former action. Having neglected to do so, or failed in it, he ought not to be heard now. Besides this, there was a long possession under the defective title, and that is some compensation for the improvements.
Judgment affirmed.