267 Pa. 294 | Pa. | 1920
Opinion by
Prior to July 2,1888, the Commonwealth had patented and conveyed to certain unnamed parties all the land abutting on an unopened but certified public road in Luzerne County; and on that date patented and conveyed the land in the bed of the road to one James P. Weller; the public and professional opinion then being that the abutting owners had no title to the land in the bed of such roads. On January 25,1882, for a consideration of $2,411 then paid to him, defendant, who had acquired title to four acres and three perches of the
So far as appears by .the record, however, it never redelivered or offered to redeliver to Strong or his estate either of the properties leased to it, nor did it cease mining coal thereunder, or make any claim to recover back the royalties which it had already paid; nor did Strong, up to the time of his death on March 28,1907, or plaintiffs thereafter, until the bringing of this suit on October 13,1911, allege defendant was indebted to them, or that they had suffered any damages by reason of his conveyance to Strong in 1882. On March 28,1910, however, the railroad company and the heirs and legal representatives of Strong, entered into an agreement, whereby, for a consideration of $10,000 in cash and a discharge of its alleged claim to have back the $9,601 royalties paid under the lease of doth properties, plaintiffs and Strong’s heirs agreed to and thereafter did convey to
Subsequently plaintiffs brought this suit upon the covenant in the deed, alleging they had been evicted from the property about July, 1898; a referee duly chosen reported in their favor, allowing them the purchase price of the land with interest from January 25, 1882, the date of the deed, but decided that the only eviction was a constructive one, arising on the date stated by reason of the fact that defendant had no title to the land he then conveyed to Strong. The court below sustained exceptions filed to the report, holding that plaintiffs had failed to prove either eviction or damages, and entered judgment for defendant; whereupon plaintiffs prosecuted this appeal. We are of opinion it was right in its conclusion, even though we overlook the fatal variance between the allegation of an actual eviction in 1898 and the finding of an unaverred constructive one in 1882.
If we treat the statement of claim as amended, the allegation and finding would be that Strong was constructively evicted in 1882, not because he was kept out of possession at that time, but only because it was later found he had obtained no title by his deed of that date. It is true the record does not show that he took actual possession of the land at the time of his purchase, or even attempted to take it, but neither does it appear he was unable to obtain it. It is clear, however, that for at least sixteen years thereafter he was in actual possession, by his lessee, his right thereto was unchallenged, and he was receiving, without objection from any source, the royalty provided by the lease. How then can it be said he was constructively evicted in 1882? The mean
Where a “grantee enters and remains in undisturbed possession of the land, the fact that the title is in a third person does not constitute a breach” of the covenants in the deed (11 Cyc. 1121; 7 Ruling Case Law 1150; 15 Corpus Juris 1288; McGrew v. Harmon, 164 Pa. 115); “the gravamen......[of the action] is not the defect of title, but the eviction consequent on it (Stewart v. West, 14 Pa. 336, 338) : “Nothing appears to be better settled in this State, as well as elsewhere, than that to maintain an action upon a covenant of general warranty, an actual eviction must be averred and proved” (Knepper v. Kurtz, 58 Pa. 480, 484) as set forth in the statement of claim: Clarke v. McAnulty, 3 S. & R. 364; Little v. Thropp, 245 Pa. 539, 550.
The judgment of the court below is affirmed.