Jenkins v. McMichael

Opinion by Beaver, J., When this case was previously here — Jenkins v. McMichael, 17 Pa. Superior Ct. 476 — it was clearly intimated that, if the plaintiff had based his claims in the court below upon the ground assumed in the argument in this court, the result might have been different. The case had been tried in- the court below upon the theory that the plaintiffs had acquired title by adverse possession. Having entered into possession [166] under articles of agreement for purchase from those under whom the defendant claimed, it was clear that the possession was not adverse and that no title by adverse possession could ever be acquired without a change of conditions. It was upon this ground that the judgment was reversed. In the trial which resulted in a verdict upon which the present judgment is based, the case was tried upon an entirely different theory. The sale from Boyd to Bowman and from Bowman to Marshman and the entry under articles of agreement was shown and the evidence in regard to the payment of purchase money considerably strengthened. The continuous possession, payment of purchase money and acts of ownership exercised by the Marshmans from 1855, when they acquired possession under the agreement, down to the time of trial, were claimed by the plaintiffs to be such as to raise the presumption of a grant by Boyd to the Marshmans, or those under whom they claimed, upon which the plaintiffs could rely. “ Presumptions arising from great lapse of time and non-claim are sources of evidence which a court is bound to submit to a jury, as the foundation of title by conveyances long since lost or destroyed: ” Carter v. Tinicum Fishing Co., 77 Pa. 310. In Taylor v. Dougherty, 1 W. & S. 324, Mr. Chief Justice Gibson, referring to the cases in which the presumption of a conveyance had been held to arise, said: “ The case before us is much stronger, for we have the expenditure of money, not in a single contested act of ownership, but in acts repeated and persisted in for more than thirty years as regards the ownership of the warrant and without any adverse claim to it whatever. On every principle of authority and reason, this was sufficient not only to be left to the jury but, in the absence of conflicting evidence, to command a verdict. The execution of a deed is presumed from possession in conformity to it for thirty years; and why the entire existence of a deed should not be presumed from acts of ownership for the same period which are equivalent to possession, it would not be easy to determine.” See also Hasson et al. v. Klee, 181 Pa. 117. The appellant does not deny the general principle set forth in the cases above cited, although denying its applicability to the facts of this case, but claims that the plaintiffs, having failed to give distinct notice, by an amendment of their abstract [167] of title, that they intended to claim that the facts therein stated raised the presumption of a grant by. Boyd to those under whom they claimed, should not be permitted to give in evidence the facts which, although set forth in their abstract, raised that question. Without determining how far the parties to an ejectment are bound to set forth the legal propositions to be established by the facts contained in the abstract, it is sufficient to say that the appellants had abundant notice of the plaintiffs’ claim. It was argued in this court, when the cas e was previously heard. If there had been nothing more in the case than the claim of title by adverse possession, it would have been reversed by us without a venire, but the new venire was awarded for the express purpose of enabling the plaintiffs to try their case upon the theory that the facts raised the presumption of a grant by Boyd to those under whom they claimed and the distinction between title by adverse possession and title by grant to be presumed from long continued possession and acts of ownership was clearly pointed out in our previous opinion. The appellant, therefore, had abundant notice that that was -the only question in the case, and although strictly speaking an amendment of the abstract of title was the orderly way of giving such notice, and in case of the first trial would have been held necessary, we cannot see that any amendment of the abstract of title was necessary under the circumstances to enable the plaintiffs to try their case upon that theory. But, if such notice had been necessary, it was given almost at the outset of the trial. The appellant was not surprised, did not ask for a continuance and went through the trial with the knowledge that the plaintiffs claimed that the facts contained in their abstract of title would raise the presumption of a grant by Boyd to those under whom they claimed. We cannot see that the appellant suffered wrong. We are clearly of opinion that the facts shown by the plaintiff were sufficient, if believed by the jury, to raise the presumption of a grant by Boyd, under whose heirs the defendant claims, to those under whom the plaintiffs claim. The facts were fairly submitted to the jury for their consideration. We think they justified a finding for the plaintiffs and that the judgment entered upon the verdict in their favor should stand. Judgment affirmed.