Beam v. Gardner

Opinion by Rice, P. J., This was an action of ejectment for a tract of 175 acres, being part of a larger tract known as lot No. 15 in the Second Donation District containing about 375 acres. The evidence adduced by the plaintiff, if believed by the jury, would have warranted them in finding the following facts: James Gardner was the first settler upon lot No. 15, having gone into possession in 1829 or 1830, claiming to have a conveyance for the entire tract. The fact that he had in his possession what purported to be a deed, or an assignment of a deed for the tract was testified to by his sons, but there ivas no technical prooE of its execution, nor was it produced at the trial. James Gardner built a house upon the tract and died in possession of the entire tract in 1832. After his death the tract, excepting 100 acres sold by his administrator for payment of debts, was occupied by the — 253 — widow and children of James Gardner until the death of the 'former in 1842. After her death Bernard McAnallen, an uncle of the Gardner children, went into possession under an arrangement between him and them by which he was to pay the taxes and clear five acres every year and hold the land for them until the heirs saw fit to dispose of it. Bernard McAnallen occupied the house built by James Gardner from the time he went into possession until the time of his death, which occurred in 1868. In 1890 proceedings were instituted for the partition of the land among the Gardner heirs and those claiming under them which resulted in the sale and conveyance of the land in controversy to the plaintiff. The possession of a tenant is the possession of his landlord, and where the relation of landlord and tenant is once established, as it was in this case, if the plaintiff’s witnesses are to be believed, it cannot be destroyed during the occupancy of the tenant, without express notice to the landlord that the tenant holds adversely: McGinnis v. Porter, 20 Pa. 80. There is not the slightest evidence that Bernard McAnallen ever set up an adverse claim in his own right to any part of the land. Unquestionably, therefore, his possession, if otherwise sufficient, may be tacked to that of James Gardner and his heirs in making out a title by adverse possession in the Gardner heirs. It is urged, however, that although he went into possession as tenant at will of the entire tract remaining after the sale of the 100 acres for payment of debts, yet if, before the expiration in 1851 of the period of twenty-one years from the date of the entry by James Gardner, there was a severance of the 100 acres upon which the house stood from the 175 acres described in this writ, and after such severance McAnallen abandoned possession of the 175 acres, the rightful owner, by such abandonment was placed in the same position, so far as this part of the land was concerned, as he* was before James Gardner took possession. Inasmuch as there is no evidence that any one but Bernard McAnallen had possession between 1842 and 1868, the correctness of the foregoing proposition may be conceded: Susquehanna, etc., R. R. Co. v. Quick, 68 Pa. 189. But what evidence is there of a severance, either in title or possession, of the 100 acres from the 175 acres in the lifetime of McAnallen ? What evidence is there that he abandoned the possession of — 254 — the latter and limited or reduced the extent of his possession to the former? We are compelled to say there is none. True,in the partition proceedings the 175 acres were treated as a distinct tract, and were not included in the ejectment brought by some of the Gardner heirs against the McAnallen heirs. But as the partition proceedings were not instituted until 1890, and the action of ejectment was not brought until 1886, we fail to see that these facts have any possible relevancy to the question of the nature and extent of Bernard McAnallen’s possession between 1842 and 1851. Of course if the plaintiff’s right to recover depended upon his proving title in the Gardner heirs by operation of the statute of limitations, it was incumbent on him to prove affirmatively that the possession taken by James Gardner was continued by his heirs and their tenant for the requisite length of time and included the 175 acres in controversy. But even assuming that the case turned solely upon the question of the nature and extent of the possession of McAnallen, and that this question was for the jury, we think there was error in assuming that in determining it they might take into consideration the facts that the land in controversy was described as a distinct tract in the partition proceedings instituted in 1890, and was not included in the ejectment brought in 1886. These facts had no bearing on the question under consideration and the reference made to them in the charge in the connection that such reference was made had a tendency to confuse. Therefore the fourth and fifth assignments of error are sustained. A broader question is, whether the plaintiff, who acquired all the rights of the heirs of James Gardner, could recover the possession from a mere intruder without proving a perfect title as against all the world. The court held that he could not. The correctness of this ruling is assailed in numerous assignments of error which we need not‘discuss separately, since they all raise the same question. In Green v. Kellum, 23 Pa. 254, Mr. Justice Woodward said : “ According to the oldest principles of the common law, a disseisor has a good possession against everybody but the true owner, and his heir is in by a better right.” In Mobley v. Bruner, 59 Pa. 481, the rule was stated as follows by Mr. Justice Williams, who spoke for the court: “As against the de — 255 — fendant, who showed no title, and who is to be regarded as a mere intruder, the plaintiff was entitled to recover on showing that his ancestor, under whom he claimed title as heir, died in possession of the premises.” In Jones v. Bland, 112 Pa. 176; s. c., 116 Pa. 190, Mr. Justice Sterrett said: “While it is undoubtedly true that a plaintiff in ejectment must recover on the strength of his own title and not on the weakness of his adversary’s it is not always necessary for him to commence by proving title out of the commonwealth, and then to trace each successive transfer down to himself. If, for example, both parties claim under the same person, there is an implied admission of title in him. In like manner, the fact that defendant acquired his possession as tenant of plaintiff warrants a presumption of title in the latter. Again, if plaintiff claims by descent, it is sufficient for him, in the first instance, to prove his heirship, and that the ancestor from whom he derives title was the person last seized of the premises in controversy. If he claims as devisee, he must in like manner, prove the will and seizin of the ancestor or devisor. The seizin of the ancestor or devisor may be proved by showing he was in actual possession of the premises at the time of his death, "or in receipt of rent from the terre-tenant; because possession is presumptive evidence of seizin in fee until the contrary is shown.” See also Shrider v. Nargan, 1 Dal. 68, Cook v. Nicholas, 2 W. & S. 27, Hoey v. Furman, 1 Pa. 295, at p. 300, Shumway v. Phillips, 22 Pa. 151, Turner v. Reynolds, 23 Pa. 199, Lair v. Hunsicker, 28 Pa. 115, and 10 Am. & Eng. Ency. of Law (2d ed.), 486. It is unnecessary to cite other authorities. It is undisputed that J ohn Gardner, a son of James Gardner, was living upon the land at the time of the partition proceedings to which he was a party. Edward Gardner, the defendant, is a son of John Gardner. John Gardner moved upon the land about the year 1882 and continued to live there until the time of his death. For a part of the time at least he and his son Edward lived in the same house. It does not appear that Edward had any title whatever to the land or that his possession antedated that of his father, or that from the date of the death of James Gardner until the date of the partition the land was eAer in the exclusive possession of any one excepting the Gardner heirs and those in privity with them. We make this statement ad — 256 — visedly, for, after a careful perusal of the testimony, we aré convinced that the jury would not have been warranted in finding that John claimed in hostility to his coheirs. The prima facie presumption would be the other way upon the principle thus stated in Mobley v. Bruner, supra: “Undoubtedly his entry would inure to the benefit of his coheirs, not only so far as concerns themselves but as regards strangers. The law would presume that he entered in the character of a coheir; and entering according to his estate, his possession would be according to his estate and would be that of his coheirs: Carothers v. Dunning, 3 S. & R. 373.” Nor do we think the jury would have been warranted by the evidence submitted to them in finding that Edward went into possession in hostility to his father; but if-having gone into possession with his father, he subsequently set up a hostile claim, his rights thereafter, as against the heirs of James Gardner, were no greater than those of a mere intruder, and if he was a mere intruder the principle of Mobley v. Bruner and Jones v. Bland would apply. It follows that the qualifications given in answer to the plaintiff’s fourth and fifth points were inappropriate, and that in view of the peculiar facts of this case, the instructions complained of in the eighth assignment, and other instructions to the same effect, were erroneous. The court was right in refusing to give binding instructions for the plaintiff. In any view that may be taken of it his case depended upon the testimony of witnesses. It was for the jury to pass on their credibility and to determine from the evidence whether the facts essential to a recovery by the plaintiff were established. We cannot say that the record referred to in the seventeenth assignment of error was admissible in evidence for either of the specific purposes stated in the offer, namely to show who were the heirs of James Gardner, and to show that James Gardner died in the actual possession of the land. Not being admissible for the specific purposes stated in the offer we cannot say that the court erred in rejecting it, although it might have been admissible for some other purpose, as, for example, to show in connection with other evidence the assertion of dominion.over the land after the death of James Gardner. Moreover, the fact that 100 acres of the original tract were sold by the adminis — 257 — trator for the payment of debts was shown otherwise and was practically admitted. So that, at all events, the plaintiff suffered no prejudice by the rejection of the offer. Therefore this assignment is overruled. Judgment reversed and venire facias de novo awarded.