68 Pa. 189 | Pa. | 1871
The opinion of the court was delivered,
The 18th assignment contains the only serious error in the instructions of the court which needs notice. The court charged that “ a vacancy in the possession caused by a tenant’s going out even for a few months, before another tenant comes in, does not break the continuity of the possession, if the landlord have his title upon record, and does not intend to relinquish his possession and put another tenant in before his possession is disturbed by another claimant. Peter A. L. Quick had his title upon record in 1844; but John B. Quick, who claims to have been in possession by his tenants up to that time, had no title; and a vacancy of one day prior to 1844, caused by the tenant’s going out before another came in, would have broken the continuity of the possession.” As an unqualified instruction upon the doctrine of the Statute of Limitations, this portion of the charge is erroneous. The distinction between a trespasser without, and one with title on record, in its effect upon the continuity of possession, has no place in the law. The deed from John B. to Peter A. L. Quick, which the learned judge calls title, is nothing but the link connecting together the possession of these two persons, whose possession otherwise would be independent and distinct trespasses. Where the question is upon the éxtent of possession, of one without title, the deed, warrant, survey or other evidence of supposed title may give color to and extend the possession by presumption beyond his actual enclosure or cultivation; but it can have no possible effect upon the fact whether he has continued in the possession or left it. In view
We are not very clear as to some of the bills of exception to the admission and rejection of evidence. In a case of such numerous facts and complication of detail, it is not easy to pronounce upon every exception. We may say, however, we are not clear that the rejected evidence referred to in the 10th assignment of error was irrelevant. Phillips being found in possession
Nor do we see why the record in the action of partition brought by Clark against Frost & Loring trustees, was irrelevant, though it was rather unimportant. We shall, however, not refer to the bills of exception in detail further than to say that some are not sustained, others were saved by the introduction afterwards of the deeds and other writings notin evidence when the objections were made; and others are not sufficiently before us to decide them. Among the last class is the exemplification of the record from Pike county, of the case of George Biddis v. John B. Quick. The certificate of the prothonotary is not printed for us, or it may be there was no general certificate attached to the exemplification. It would seem from the statement in the bill of exception, that the record consisted of loose and detached parts. If that be the fact, there was error in receiving the detached papers. The record must be made up and certified as a whole. This error, if it be one, can be corrected by making up a proper record and certificate.
Judgment reversed, and a venire facias de novo awarded.