Anders v. Central Railroad

Opinion by Beaver, J., Plaintiff claimed in ejectment from defendant a triangular [565] piece of ground, containing sixty-two square feet. The foundation of his claim was a sheriff’s deed which purported to convey the interest of Wittman in “all that certain two-story brick dwelling house, known as the Mondray House Hotel, and lot of ground situate between the Lehigh River opposite the borough of Bethlehem in the borough of South Bethlehem, formerly Lower Saucon Township, in the county of Northampton and commonwealth of Pennsylvania, containing 329 feet in front and in width at one end sixty-nine feet and at the other end 20 feet, as also all the right, title and interest in the lease of the Bethlehem Bridge Co. for the ground on which the piazza is built.” It is difficult, from this description, to include within it the property in dispute. It, therefore, becomes of the first importance to ascertain what Wittman’s interest was, both as to the estate held by him and the description under which he claimed. There is no allegation of title on his part, as in a conveyance made to him, and the plaintiff failed to show any conveyance to him, alleging in his brief of title: “ The plaintiff is unable at present to give the name of the grantor to Gottlieb Wittman, inasmuch as the deed to said Wittman was not recorded, nor can plaintiff trace its whereabouts, though careful search has been made by plaintiff for the same. The plaintiff alleges and expects to be able to prove by parol evidence, if not otherwise, that the same premises sold by the sheriff as the property of said Gottlieb Wittman, as hereinbefore mentioned, is the same premises which Daniel Desh and wife, by indenture dated January 20, 1855, granted and confirmed unto John Wieller, which said premises was a part of the tract which Philip H. Goepp and wife, by indenture dated September 6, 1848, granted and confirmed unto Daniel Desh. The plaintiff has learned that the immediate grantor of Gottlieb Wittman was John Wieller.” Title is shown in Wieller in a piece of land specifically described in a deed from Desh and wife to him, but the description in no way corresponds, except as to a single line, with that contained in the sheriff’s deed under which the plaintiff claims. On the trial, the plaintiff failed to establish the existence of any deed from Wieller to Wittman and did not even offer to prove that such a deed had ever existed. His offer upon the subject assumed the existence of the deed and proposed to show [566] search in the recorder’s office, inquiries from members of the Desh family and from old inhabitants as to the existence of such a man as John Wieller and “that in general I had tried in every.way conceivable by myself to locate the missing deed but was unable to get on the track of it or could not get any information on the point.” In addition to this, some of the plaintiff’s witnesses, on cross-examination, proved clearly that the defendant had been in possession of at least a portion of the triangular piece of land claimed for over twenty-one years. It is not singular, therefore, that the trial judge in the court below, upon motion, granted a nonsuit which he refused to take off, basing the refusal principally upon the fact of the lack of the “essential link in the plaintiff’s chain of title — ■ the deed from John Wieller;” adding: “The allegation is that this deed has been lost, but unfortunately for the plaintiff there is not a spark of evidence that such a deed ever had any existence.” It is very clear from all authorities that, in order to introduce secondary evidence of the contents of a paper, there must be, first, proof as to the existence of such a paper and, second, its loss: Meyer v. Barker, 6 Binney, 228; Parks v. Dunkle, 3 W. & S. 291; Porter v. Wilson et al., 13 Pa. 641; Jack v. Woods, 29 Pa. 375. The essential elements, therefore, of title in Wittman and a specific description as to what that title, if any, included were entirely wanting in the case. Nothing offered b}r the plaintiff could supply the place of these essential requisites and it is, therefore, unnecessary to refer to the several assignments of error relating to offers of evidence which were ruled out. All of these offers, viewed from the standpoint of the plaintiff’s final offer to establish title in Wittman, were incompetent and irrelevant. The specifications of error must all be overruled. Judgment affirmed.