Pifer v. Berkey

Opinion by Mr. Justice Elkin, The record in this case is not a very satisfactory one to review for the purpose of determining the exact legal rights of the parties. The confusion results from loose and indefinite pleadings. The subject-matter of the controversy is the title to ten acres of land. Appellant filed his petition in the court below under the Act of June 10, 1893, P. L. 415, setting forth his claim of title to the land in dispute and asked for a rule upon the appellees, who denied his title and right of possession, to show cause why an issue should not be framed to settle and deter [398] mine the respective rights and title of the parties to said land. Appellees answered, denying title and possession in appellant and claiming both in themselves. After hearing the court directed an issue to be framed to determine the ownership of the ten acre tract of land in dispute, with appellees as plaintiffs and appellant as defendant. No formal issue was framed as the statute requires and the parties went to trial upon the general averments of the petition and answer which were treated •as the pleadings in the case. This practice should not be encouraged although it seems to have been adopted in several counties called to our attention. The statute clearly contemplates the framing of a formal definite issue setting forth the exact questions to be determined by the jury. Both sides should be required to file abstracts of title and the entire proceeding should conform as nearly as may be to an action of ejectment. The title to land is the question to be determined and the verdict of the jury in such an issue has the force and effect of a verdict in ejectment upon an equitable title. All of which indicate the necessity for formal pleadings and definite issues. We have called attention to this question because in several recent cases arising under the act of 1893, and brought before us on appeal, definite issues were not framed and the pleadings were as informal as those in the case at bar. While such records may not constitute reversible error they are not approved. In the present case one of the errors complained of is that appellees were allowed two strings to their bow when they should have been confined to one. In other words, they were allowed to go to the jury on the question of •title by adverse possession, also title by parol purchase followed by possession and valuable improvements. . The case was so tried but in view of the pleadings we cannot say there was reversible error in so doing. It is true that one of the averments in the answer of appellees is that appellant sold the land in controversy to Abraham Howard soon after he, Berkey, had acquired title to the same [399] in 1885, and the evidence shows that the title by purchase was the one mainly relied on by appellees at the trial. We do not agree with the contention of learned counsel for appellant that the evidence was not sufficient to submit to the jury on the question of parol sale followed by possession, erection of buildings and other acts indicating ownership. Wo think the evidence was sufficient for the purpose intended. The learned trial judge in a charge free from just criticism left it to the jury to say whether Howard had taken possession under his parol purchase, or as tenant under appellant. This was the pinch of the case and the court so instructed the jury. The able argument of counsel for appellant has not convinced us that the learned court committed any error in this respect. There is some doubt whether title by adverse possession was set up under the pleadings. One of the averments of the answer is “that said Abram Howard went into possession of said land on or about the first day of September, 1885, and remained in possession of the same until his death, to wit, May 5, 1907, when the title and possession thereto descended to the respondents who held the possession and still hold the legal possession thereto.” There is another averment that the possession in the Howards has been continuous and unbroken to the present time. These averments, it is true, are somewhat ambiguous and leave room for doubt as to whether the possession was open, notorious and adverse as against appellant or was possession taken under the alleged parol sale. However, both questions were left to the jury and during the entire course of the trial both claims of title were insisted upon. In view of the very general averments of both the petition and answer which formed the pleadings in the case we cannot say that the court committed error in admitting testimony to prove adverse possession and in submitting this question to the jury. This was within the reasonable discretion of the court under the pleadings. We have examined with care each of the thirteen as [400] sign merits of error but deem it unnecessary to discuss them in detail. Our general views hereinbefore expressed cover the important questions raised and are controlling. Assignments of error overruled and judgment affirmed.