Kellogg v. Gilfillan

Opinion by Mb. Justice Stbbbett : In 1861 plaintiff in error’s husband, Henry N. Kellogg, under whom both parties to this contention claim, became owner in fee of the premises in controversy, and died intestate in 1863, leaving to survive him two minor sons, William and Martin, children by a former wife. After attaining their majority, the sons conveyed their interest in the lot to defendant in error. If Mrs. Kellogg had consistently asserted her right of possession as widow of her deceased husband and had not claimed adversely to the vendee of his heirs at law, the latter could not have maintained this action of ejectment; but it appears that in 1874, shortly after the conveyance to him, she asserted title in herself as donee of her husband, and denied that he died seised of the premises in controversy. That fact is clearly shown by the evidence of plaintiff below; and hence he was justified in bringing this action of ejectment Again; after suit was brought, in obedience to rule of court, she filed an abstract of title in [151] which she denied that the heirs at law of her deceased husband had any interest in the premises at the time they conveyed to plaintiff below; she also set up an outstanding tax title, based on sale for taxes of 1874; and asserted title in herself by “uninterrupted and adverse possession of the locus in quo under a claim of right for more than twenty years.” After plaintiff below had introduced evidence sufficient to warrant a verdict in his favor, defendant moved to amend her abstract of title by stating: “That the defendant, Jane Kellogg, is the widow of H. N. Kellogg, deceased; that H. N. Kellogg died seised of the premises in question, and that she has been ever since her husband’s death and now is in possession of said premises by virtue of her right as widow; that she is the administratrix of her deceased husband, and that said estate is unsettled.” The motion was refused, but she was permitted to introduce evidence of the facts therein alleged as fully as if the amendment had been allowed. She also asked leave to amend her abstract by striking out the last paragraph thereof, viz., the assertion of title in herself under the statute of limitations. That was also denied. The refusal of these motions forms the subject of complaint in the first and second specifications, respectively. At first we were inclined to think the amendment in question should have been allowed on payment of all costs to that date. Anything more favorable to defendant below than that should not have been entertained. But when we consider all the circumstances of the case as disclosed by the evidence, in connection with the fact that no^ excuse whatever was given or offered for not filing a correct abstract of title at the outset, and the further fact that she was permitted to give in evidence everything she could have proved if the amendments had been made, we are not prepared to say there was any error of which defendant below has any just reason to complain. Moreover, there was no offer to amend the abstract by striking out the averment of outstanding tax title, which in itself is a denial, by necessary implication, of title in heirs at law as well as in their vendee. The rule of court which provides for filing abstracts of title in actions of ejectment is a good one. If properly observed and enforced, it tends to speed the trial, and guard the parties against surprise from the introduction of evidence they would [152] otherwise not be prepared to meet. It contemplates the filing of a correct abstract of the title on which the parties respectively intend to rely. If by mistake or inadvertence an erroneous abstract is filed, permission to amend should always be allowed on such terms as are usual in other cases of amendment. As was said by the present Chief Justice in Ege v. Medlar, 82 Pa. 87, 101: “Ordinarily, an abstract of title filed by either party under a rule of court would be in evidence, for its principal design is to relieve the case of the proof of such papers and evidences of title as may therein be admitted. Not only are the parties thus relieved of the preparation of unnecessary testimony, but the public business is expedited.” As the case stood upon the evidence before the jury there was a question of fact, for their determination, upon which the validity of the alleged tax title depended. That question was determined in favor of plaintiff below, and is not involved in any of the specifications of error. There was also the question whether defendant below did or did not claim adversely to plaintiff. That was also properly submitted to the jury and found against her. There is nothing in the remaining specifications that calls for special notice. We find no error in either of them that would justify a reversal of the judgment. Judgment affirmed.