Duncan v. Sherman

Opinion, Mr. Justice Williams : This was an action of ejectment by a purchaser at sheriff’s sale. The defendant, who was also the defendant in the judgment on which the sheriff’s sale was effected, filed, when he appeared to the action, a disclaimer of “ all right, title and interest” in the land described in the plaintiff’s writ, and a denial that he was when served, or at any time before or after service, in possession thereof. This disclaimer though not a plea to the action, is a solemn declaration of record that the defendant will not present, because he does not claim to have, any title whatever to the land in controversy, or to the possession of the same. The plaintiff had the right, when this statement went upon the record, to take judgment against the defendant and so end the case; but such judgment, as it must rest upon the disclaimer, would necessarily be at the plaintiff’s own cost. If the disclaimer be true, then the action was unnecessary, and no legal basis for the imposition of costs upon the defendant appears upon the record. But the plaintiff had the right to take issue with the defendant upon the question of his possession, and, if he succeeded in showing that the disclaimer was in this particular untrue, then the action was necessary, and the plaintiff was entitled to a judgment for his costs, as well as for the land described in his writ. Such is the rule fairly deducible from the cases: Hill v. Hill, 43 Pa. 521; Kirkland v. Thompson, 51 Pa. 216; Harris v. Tyson, 24 Pa. 347; Lane v. Harrold, 66 Pa. 319. It is true, as the learned judge of the court below well said, that the sole question, to be determined by the trial, was that of the possession of Sherman; but this was to be investigated in view of the facts peculiar to the case. These were, first, that the defendant was the judgment debtor whose right to the possession, if he had any, was now in the plaintiff, by virtue of his purchase at sheriff’s sale; second, that he had explicitly disclaimed title, and that as between him and the plaintiff, therefore, the plaintiff was entitled, to judgment for the land when the trial was entered upon. The practical question to be decided by the trial was, shall the judgment in favor of the [529] plaintiff: for the land be entered with or without costs? This depended on what the jury should find the fact to be in regard to the possession. The plaintiff showed possession, prima facie, by the sheriff’s return, and followed this by proof that the defendant was upon the land, in the exercise of acts of apparent ownership, from time to time. To this showing the defendant’s reply was, that he was the agent of his wife, and his acts upon the ground were hers, done under her direction. We think this would have been a sufficient .reply, if he had shown that his wife had title. His disclaimer was, for the purposes of the trial, an admission of the plaintiff’s title, upon which as we have seen judgment might properly be entered against him, and he could not defend his possession under the title of a stranger after such an admission. But we have held that this rule is subject to an exception in favor of the wife, because otherwise, as has been well said, she would be worse off than a stranger, as she would be put out of possession with her husband, without a hearing upon her separate right to the possession. But her possession is presumptively that of her husband: Keeney v. Good, 21 Pa. 349. It could not, therefore, protect him in the slightest degree, unless the legal presumption as to the origin and nature of her right was first rebutted by proof of her title. It was necessary to show affirmatively that she did not derive her title from him, but, by an honest purchase with her own separate means, or in such other legal manner as would give her a title good against the pursuing creditor. The proof for this purpose must be clear and satisfactory: Tripner v. Abrahams, 47 Pa. 220; Keeney v. Good, supra. The learned judge of the Common Pleas said to the jury: “ There is no proof of any title in Mrs. Sherman; and, so far as this is concerned, we throw it out of the case altogether; ” and yet he allowed a verdict against the plaintiff for costs, notwithstanding the actual possession of the defendant. This was error. The defendant, having in effect admitted the title of the plaintiff by his disclaimer, could not defend his possession under his wife, without showing a title in her. Until this was shown, the legal presumption was in full force that she was in by virtue of his title, and his title had passed to the plaintiff by [530] virtue of the sheriff’s sale. It follows that the plaintiff’s second, third, fourth, fifth and seventh points should have been affirmed. We also think the points should have been so answered as to leave with the jury a clear idea of the rule by which they were to be guided. The plaintiff’s counsel submitted a series of points, ten in number, to which the court made this response : “ So far as the points are in accordance with what we have said to you was the controlling question in the case, they are affirmed. And so far as they are not in accordance with the opinion we expressed in the general charge, they are refused.” It was not necessary to answer specifically every point in this series, but it was necessary to tell the jury the legal rule controlling the questions suggested by the points. We repeat what was said by our brother Paxson in Huddlestone v. West Bellevue Bor., 111 Pa. 122 : “ This is a very unsatisfactory way of answering points. It renders the point of no possible value with 'the jury and always adds greatly to our labors.” When such answer leaves the jury without adequate instruction upon the questions presented by the points, it must, if the questions presented are fairly and legitimately raised, be ground for reversal. The judgment in this case is reversed and a venire facias de novo awarded.