Treftz v. King

The opinion of the court was delivered, November 10th 1873, by Sharswood, J. — This writ of error is brought upon a judgment •n an action of ejectment on a general verdict, rendered in the court below October 6th 1849, which was affirmed by this court: 6 Harris 157. The error now assigned, however, is to an order made by the court many years subsequently (July 15th 1868), requiring the defendants to file in court the title-papers for the 'plaintiffs, and directing J. John Trefts, one of the defendants, to convey to the plaintiffs. It may perhaps be inferred from some of the entries that it was an equitable ejectment, though we are without any bill of exceptions to show it — as it appears certainly by the case as reported in 6 Harris to have been. Assuming this to have been so, we are of opinion that it affords no ground for the order or decree made by the court below. Before the Acts of Assembly conferring equitable jurisdiction on the courts, the power of giving relief on equitable titles in this state was through the medium of conditional verdicts in ejectment. Such verdict is necessary to place the grounds of equity on the record and to enable the court to make the proper order. Hamm v. Beaver, 1 Grant 448, cited by the counsel of the defendants in error, shows this. How else can the decree made below he reviewed ? Surely it will not be contended that such a decree as was made in this case is not the subject of review in some form. We think it very clear that the court had no power to make such an order. The plaintiff below, if entitled to possession of the title-papers and to a conveyance of the legal title, is not without remedy. He may file a bill in equity for that purpose. Order of July 15th 1868 reversed, and record remitted.