162 Pa. 468 | Pa. | 1894
Opinion by
When the facts in this case are understood the legal questions presented by them are by no means difficult of determination. The land which is the subject of controversy was owned, as early as 1873, by Frederick Dootju He sold and conveyed it to his daughter Lucy, then the wife of Lawson Levan, in 1878. About two months after the deed to her, she died leaving her husband and an infant daughter Nora surviving her. Upon her death the title to the land descended to her daughter as heir at law, but it was subject to the life estate of the husband, given by the intestate laws. The relative situation and rights of the father and child were free from difficulty. The father was entitled to the possession during his life. The daughter held the fee subject to the life estate of her father, and was entitled to the possession when the life estate ended and not until then. In 1880 the land was sold by the treasurer of Columbia county for taxes, and Dooty, the grandfather of Nora and former owner, became the purchaser. In 1885 he seems to have regarded the failure of the infant to redeem the land from the tax sale as sufficient to vest in him a complete title. He accordingly sold the land in that year to Zahner, the defendant. After his purchase Zahner began to cut timber from the land, not for the purpose of clearing and cultivation, but for sale, and with a view to strip the land of its timber, in which its value mainly lay. In 1886 Yocum, the plaintiff, was appointed guardian of the person and estate of Nora Levan and undertook to look after her interest in the land. He began by redeeming it from the tax sale, and then brought an action of ejectment against Zahner who was in possession under the tax title, by a conveyance from Dooty the purchaser. Zahner thereupon took a conveyance from Lawson Levan of his life estate and on the trial of the action of ejectment defended against the title of the holder of the fee, by setting up the life estate as the basis of his claim to the possession. The action of ejectment failed because Zahner appeared to be
The remedy for a remainderman on whose inheritance waste is being committed is well settled. It is not in trespass, but in case for the recovery of damages for the injury done to the freehold. The Act of 1824 does not change the rule in this respect, nor does it include in its provisions a remainderman. It does not give a new action to the owner of timber which has been cut without his consent. What it does give is a new statutory measure of damages in the common law actions of trespass and trover. Where these actions will not lie, the new measure of damages cannot be applied. It is too clear for serious contention that trespass will not lie at the suit of a remainderman against the life tenant in actual possession. This seems to be practically conceded, but it is contended that the action of trespass can be maintained on the theory that the guardian, by the act of redeeming the land from the tax sale, acquired the entire title that .passed by the sale. As the sale cut off both the life estate and the freehold or might have done so, it is argued that the redemption carried both estates to the guardian when he paid the redemption money. This is a mistake. Redemption operated to set aside or annul the sale, and left the title precisely as though the sale had not been made. The remainder was revested in the heir at law, the life estate in the husband or his' vendee. The heir neither gained nor lost in title by the process. This action cannot be maintained therefore on this theory.