Wickham v. Sutton

33 Pa. Super. 368 | Pa. Super. Ct. | 1907

Opinion by

Hendekson, J.,

The plaintiff acquired title to twenty-seven acres and ninety-four and one-half perches of land, part of a tract belonging to the grantors, by deed from Thomas Taylor and others in 1872. Part of this land was improved and part wooded. The trespass complained of was on a piece of uninclosed and unimproved land adjoining the twenty-seven acres and ninety-four and one-half perches. The plaintiff claimed to have bought this additional land from one F. V. Taylor and a paper was offered in evidence in support of the claim, purporting to have been signed by F. Y. Taylor. The paper was in the following form: “ This is to show that I agree to allow the tract of land sold to Charles L. Wickham to extend parallel with the east and west lines running north and south across the Robert Gray tract, that is, my right and title ofisuch lands. F. Y. Taylor.” When objection was made to the admission of this evidence the plaintiff’s counsel stated: “We do not offer this as evidence of the land, but simply as corroborative evidence of Mr. Wickham’s title.” The paper was not dated, no consideration was recited and there, was not sufficient evidence of its execution. It is without words of conveyance and contains an obscure description of the land to which it refers. F. Y. Taylor was dead at the time of the trial. The paper was admitted in evidence by the trial judge apparently upon the theory that it was in corroboration of the plaintiff’s claim of title by .adverse possession. It was evidently not relied upon by the plaintiff as a grant of land, for his attorney when offering it said it was simply corroborative evidence of the plaintiff’s title. It was necessary, therefore, to resort to the claim of title by adverse possession, for, although the learned counsel for the plaintiff insists in his argument that the plaintiff claims by purchase, there is an entire absence of evidence to show any title acquired in that way. An attempt was made to show such occupancy as would give title by adverse possession. The evidence on that subject-was that the plaintiff cut firewood from time to time, took some timber from the land and that he made a road thereon to enable him to remove the timber. Fences were not built, the land was not cultivated, nor were any permanent improvements made. There was neither possession by residence nor by cultivation. The place of the trespass was not within the boundaries of the twenty-seven acres and ninety-four and one-half perches bought by the plaintiff, and actual possession was necessary within the lines of the additional land claimed by the plaintiff in order to acquire title thereto. Residence by the plaintiff on the twenty-seven acre lot did not draw to it possession of land not part of that tract and would not be notice that the plaintiff claimed beyond the boundary of what he had bought: Miller v. Shaw, 7 S. & R. 129; McArthur v. Kitchen, 77 Pa. 62. The evidence was not sufficient to sustain the plaintiff’s claim and the court might have so instructed the jury. It is not important, therefore, whether the record of the partition proceeding offered by the defendants was admissible or not. It did show, however, that the defendants were on the land under a claim of right, they having bought it at a partition sale of the real estate of F. Y. Taylor. It is true the deed had not been delivered to them, but the sale was confirmed and part of the purchase money paid -nearly a month .before the trespass was committed. The defendants were on the premises, therefore, under a claim of title.

The judgment is affirmed.