Page v. Simpson

Opinion by Mr. Justice Williams, The first assignment of error cannot be sustained. Three defendants were named in the prsecipe and summons. As to two of them the return was “ nihil habet.” Personal service was made upon the third who appeared and pleaded. When the case was reached for trial on the issue so made the plaintiff offered to prove that the other defendants had actual notice of the pendency of the action in order to make the verdict to be rendered binding upon them under the act of 1853. This offer was properly refused. Before this proof could be made, it was necessary that the non-appearing defendants should be brought upon the record by a service on their agent or employee in actual charge or superintendence of the land described in the writ. The act of 1853 authorized judgment against one thus brought upon the record by constructive service, if it was made to appear that he had actual notice of the fact that the action was pending. There was no constructive service in this case, but a return that the defendants Wainwright and Bryant had nothing by which such service could be made. The second assignment raises an important question of practice. This case had been put at issue under a rule of the court of common pleas of Jefferson county which requires that a plaintiff in ejectment shall file an abstract or brief of his title. When this is done it becomes the duty of the defendant to file in like manner an abstract of the title upon which he defends his possession. The plaintiff must then rejoin stating the answer he expects to make at the trial to the title so set up by the defendant. The real breadth of the controversy is thus ascertained and the evidence is limited accordingly. In this case the plaintiff’s brief of title showed that he claimed through Wainwright and Bryant by means of a sheriff’s sale made in 1891 upon a judgment entered against them in favor of the Spring Garden National Bank. The defendant then filed an abstract of his title showing that he also claimed under Wainwright and Bryant by virtue of an earlier sheriff’s sale made in 1890. This sale he averred divested the title of Wainwright and Bryant.-so that no title passed to the plaintiff by virtue of [295] the subsequent sale made to him. The question presented by the abstracts at this time was over the priority of the respective sales; the defendant alleging that the sale under which he claimed was made in 1890, and left no claim in Wainwright and Bryant that could pass by the sale of 1891 to the plaintiff. The plaintiff’s rejoinder admitted the priority of the sale to the defendant but alleged that the judgment by means of which it was affected was made to hinder, delay and defraud the creditors of Wainwright and Bryant, and was therefore absolutely void as against the creditors sought to be defrauded, of whom the Spring Garden National Bank was one. This brought the issue down to a single question of fact, viz, was the judgment and sale under which the defendant’s title was acquired valid? If it was, then as it was first in time it passed the title of Wainwright and Bryant to him; but if it was fraudulent, as the plaintiff alleged, then the second sale passed the title and it was now held by the plaintiff. At the trial the plaintiff properly began his evidence at what was shown by the abstracts to be the common source of title, viz, the title of Wainwright and Bryant. He put in evidence the judgment against them in favor of the Spring Garden National Bank, the sheriff’s sale and deed to himself and the return of the sheriff to the summons in ejectment. This showed the title he had set out in his abstract, and gave him a right, prima facie, to recover upon showing title in the defendants in the judgment. This he could do by tracing the title from the commonwealth down to them or by showing that the defendant recognized their title and claimed under it. He adopted the latter and shorter method. He offered the defendant’s abstract “ for the simple purpose of proving that the defendant is claiming under Wainwright and Bryant and for no other purpose.” The offer was admitted without objection for the purpose stated, and the fact was thus brought to the attention of the court and the jury that Wainwright and Bryant were the common source of title, and that the question on which the action depended was whether the plaintiff or defendant held their title. The defendant’s abstract having been offered and admitted for a specific purpose, was before the jury for no other purpose. No particular instrument or averment contained in it became a part of the plaintiff’s case, so as to relieve the defendant from making [296] out his own title. What did become a part of the plaintiffs case because of the offer of the abstract was that the defendant’s title began with the same parties from whom the plaintiff derived his title. This amounted to an admission by the defendant that Wainwright and Bryant once held a good title to the land. It did nothing more. Its effect was the same as though the plaintiff had shown title out of the commonwealth and traced the same through the intermediate holders to Wainwright and Bryant. The plaintiff should then have rested. For some reason however that is not apparent he undertook to duplicate this proof, and called the defendant and inquired of him if he did not claim title under Wainwright and Bryant. He replied that he did. He was then cross-examined by his own counsel and stated in substance that the title claimed by him was under a sheriff’s sale made in 1890. The only subject upon which cross-examination was proper, was whether he did in fact claim under the title of Wainwright and Bryant. How he claimed, whether through a private or a judicial sale, was part of his own case and could not be injected into the case of the plaintiff in this manner. The motion for a binding instruction to the jury to find for the defendant rested on the reason stated by his counsel, that “ the plaintiff has shown title out of Wainwright and Bryant to W. A. Simpson by his own evidence, and has shown no title subsequent to our title in Wainwright and Bryant.” This was a misconception of the effect of the evidence. The plaintiff had not shown title out of Wainwright and Bryant by his offer. He had offered to show, and had shown, only “that the defendant is claiming title under Wainwright and Bryant,” or in other words that the defendant admitted that the title of Wainwright and Bryant was a good title. This was all, and it did not justify the instruction asked for and actually given by the learned trial judge. The burden of showing how he derived his title from the common source, and that the sale under which he claimed was prior in time to that under which the plaintiff claimed, was still on the defendant. When he had laid his title before the jury in any competent manner the burden of .showing its invalidity would then have rested on the plaintiff; but the fact that he used the defendant’s admission of the validity of the title of Wainwright and Bryant [297] instead of establishing that title by tracing it from the commonwealth to them, did not put that burden on him. The effect of showing a common source of title is well settled: Turner v. Reynolds, 23 Pa. 199; Clark v. Trindle, 52 Pa. 492; Riddle v. Murphy, 7 S. & R. 230. Nor can this judgment be sustained on the ground that the plaintiff did not show possession in Wainwright and Bryant at the date of the sheriff’s sale under which he claimed in accordance with the rule laid down in Yost v. Brown, 126 Pa. 92. In that case the plaintiff did just what the plaintiff in this case did. He put in evidence the judgment on which the sheriff’s sale was made, the process upon it, the sheriff’s sale, and the acknowledgment of the sheriff’s deed. He then offered the summons in ejectment and the sheriff’s return, and rested. The defendant then entered upon his defense and showed a sale and conveyance of the land by the defendant in the judgment to a third person before the judgment which the plaintiff had given in evidence was entered and rested. Upon this state of the evidence it was held that the presumption that possession follows the title was stronger than the presumption of possession arising from a return of service upon the defendant in ejectment, and should therefore prevail until rebutted by evidence showing that the possession of the defendant in the judgment continued notwithstanding his sale. The principle on which that case was decided has no application whatever to this. This was a contest between rival claimants under successive sheriff’s sales in which the later purchaser had to attack the validity of the earlier sale or fail in his action. If the first sale was fraudulent then the purchaser under the second acquired the title of the defendants in the judgment, and both as to them and the purchaser at the first and fraudulent sale, is entitled to recover. The judgment is reversed and a venire facias de novo awarded.