Jenkins v. McMichael , 1901 Pa. Super. LEXIS 339 ( 1901 )

Opinion by

Beaver, J.,

This was an ejectment. The premises in dispute were sold by Boyd to Bowman, under articles of agreement. Bowman sold to Marshman. The plaintiff claims the undivided half of the premises by deed from one of Marshman’s heirs. The defendant claims by deed from the heirs of Boyd. Plaintiff’s claim is based upon the adverse possession of Marshman under which, it is alleged, he acquired a complete title in his lifetime. The fundamental error which runs through the entire case from its inception to its close is the assumption that Marshman’s possession was hostile to Boyd or could ever become adverse as to him and those claiming under him, without a surrender of the possession which he acquired under the original articles of agreement. The agreements between Boyd and Bowman and between Bowman and Marshman were not produced. When the purchase money was to be paid, how it was to be paid, to whom it was to be paid were not shown in any way. It is apparent from the testimony that the purchase money never was paid in full.

The claim of the plaintiff is based entirely upon the alleged adverse possession of Dr. Marshman which he says began in 1855 and continued uninterruptedly at least until 1883, at which time he alleges he acquired a complete title. “The principle is well settled that to make a disseisen that will be the commencement of a new title, producing a change by which the estate is taken from the rightful owner and placed in the wrongdoer, the possession taken by the disseisor must be hostile or adverse in its character, importing a denial of the owner’s title of the property claimed; otherwise however open, notorious, constant and long continued it may be, the owner’s action will not be barred. The mere fact that the claimant has had possession of the land for the statutory period will not suffice to satisfy the rule requiring the disseisor’s possession to be hostile.” 1 Cyclopedia of Law and Procedure 1026. “ Where a party relies on the statute of limitations as giving him a positive title, one with which he can successfully assail even the holder of the legal title in possession, he ought to be held to show all the elements constituting it, conjoined and united in his hands, and that he, or those under whom he claims, entered into the possession of the premises, claiming the same as and for his own property and that as such he has held actual, adverse, continued, visible, notorious, distinct and hostile possession thereof for the full period of twenty-one years: Hawk v. Senseman, 6 S. & R. 21; Adams v. Robinson, 6 Pa, 271; Hole v. Rittenhouse, 25 Pa. 491. A court should in case of such a title see that there is evidence to go to the jury on all these points. If it be wanting as to any of them, then an essential of title is wanting and the duty of the judge is plain. He should instruct the jury that there is not sufficient evidence to entitle the plaintiff to recover.” De Haven v. Landell, 31 Pa. 120. How any one claiming under Dr. Marshman could set up title by adverse possession against those claiming under Boyd, the common source of title, we are at a loss to understand. Marshman’s title never was hostile to Boyd. He went into possession under Bowman who claimed under an article of agreement from Boyd and, therefore, entered in subserviency to Boyd’s title. “ It is abundantly established that where the entry has not been adverse, where he who sets up the statute of limitations came in expressly or legally in subservience to the title of the owner, he cannot be permitted to treat his subsequent continued possession as adverse. Before the statute commenced to run in favor of such an occupant, the privity between him and the owner must have been disowned, severed by some unequivocal act:” Bannon et al. v. Brandon, 34 Pa. 263; Cadwalader v. App, 81 Pa. 194. It is plain, therefore, that Marshman’s possession lacked two of the essential elements necessary to acquire title under the statute of limitations by adverse possession. It was not hostile and not adverse. It was the duty of the court, therefore, to have instructed the jury that, lacking these essential requisites, the plaintiff was not entitled to recover under a claim of adverse possession.

In this view of the case the offers to introduce in evidence the mechanic’s lien entered in 1877, upon which the property was sold to Ashbrook and by Ashbrook to Dr. Marshman, together with the deeds from the sheriff to Ashbrook and from Ashbrook to Marshman, should have been rejected, because entirely irrelevant.

Specific exception is taken to the language of the court contained in the third assignment of error: “ So, if you should find under the evidence here that Dr. Marshman not only had possession of this property in 1855, under the arrangement between Boyd and Bowman, but that he had paid part of the purchase money, then there was due him on the payment of the balance of the purchase money by Boyd a deed for this property;

• and, if he did not get the deed, then it was incumbent upon Boyd to take some steps to oust him of possession and pay back to him the purchase money, if any had been paid.” No such duty devolved upon Boyd or those claiming under him. As already remarked, there was no evidence to show when the purchase money was payable or how or to whom payable, nor was it shown or attempted to be shown that the balance of purchase money had ever been tendered. It was no more incumbent upon Boyd to bring an action of assumpsit for the recovery of the purchase money or an equitable ejectment to recover posssession of the property, by reason of its nonpayment than it was upon Marshman to attempt to enforce specific performance of the contract.

The court instructed the jury properly as .to what constituted adverse possession but it was error to allow them to find that the elements which enter into and constitute adverse possession were present in this case. “ What constitutes adverse possession is a question of law for the court but the facts supporting the claim must be established to the satisfaction of the jury like any other question of fact. The reason for this rule is the fact that title being shown the law presumes the true owner to be in possession until adverse possession is proved to begin: ” 3 Kerr on Real Property, 2295.

The appellee in his printed argument here seems to shift his ground and claim that Marshman, under whom the plaintiff claimed, had acquired a title by a presumptive grant. Such a title is “ founded on the presumption that the uninterrupted possession for a long period of years is established on a just right, without which the person would not have been suffered to continue in the enjoyment of the land.” “In this country titles by prescription rest upon the presumption of the previous grant or agreement which has been lost by lapse of time: ” 3 Kerr on Real Property, 2290. But in his abstract of title and also in the trial below the only ground upon which the right to a recovery was based was that of adverse possession. This was the claim which the defendants were called upon to meet; upon this theory the case was tried and submitted to the jury by tbe court below and, inasmuch as the essentials of title by adverse possession were lacking, the court should have so instructed the jury.

Judgment reversed and a new venire awarded.