Corley v. Pentz

Mr. Justice Sharswood delivered the opinion of the court, May 11th 1874. [59] It is quite unnecessary to consider the several assignments of error in this case, as there is one point entirely decisive in this cause. The plaintiff below had clearly mistaken his remedy; admitting his whole case, his proper action was trespass quare clausum fregit, and not ejectment. His own testimony was that he was in possession of the land the day this action was brought — had lived on it twenty-six years. There was nothing in the evidence which cast any doubt upon this fact.' The defendant was entitled to an affirmative answer to his sixth point, that as the plaintiff, at the time he brought suit, was in possession of the premises described in the writ, the verdict of the jury must be for the defendant. The decided cases following the form of the writ of ejectment provided by the Act of March 21st 1806, 4 Sm. Laws 382, that the said defendant “now hath in his actual possession” the tract of land, &c., are uniform and without exception. The return of the sheriff is primá facie, and only primá, facie evidence of the possession of the defendant, and if the evidence rebuts it, he is entitled to a verdict in his favor: Cooper v. Smith, 9 S. & R. 26 ; Dietrick v. Mateer, 10 Id. 151; Gratz v. Benner, 13 Id. 110; Kribbs v. Downing, 1 Casey 399; Rynd v. Rynd Farm Oil Co., 13 P. F. Smith 397; Narehood v. Wilhelm, 19 Id. 64. Judgment reversed.