West v. Hanna , 57 Pa. Super. 445 ( 1914 )

Opinion by

Porter, J.,

Alfred F. Hanna, the defendant in this present action, had presented his petition to the court below, at No. 653, September Term, 1910, averring that he was the owner and in possession of, inter alia, a tract of land containing 439 acres, more or less, and that Isaac D. West claimed title to said tract of land. The petitioner “asserting his ownership of the piece of land aforesaid and his possession and right of possession thereof, and denying the claim of said Isaac D. West to the title of said piece of land,” prayed the court to grant a rule upon the said Isaac D. West to bring his action of ejectment for the said tract of land within six months of the service of such rule upon him, or show cause why the same should not be brought. The court granted the rule to show cause, which was duly served upon Mr. West. West filed an answer, testimony was taken, and after a hearing the court, on April 25, 1911, made an order “that the rule heretofore granted be made absolute and that the respondent, Isaac D. West, bring his action of ejectment for the said tract of land described in the petition within fifty days from the date hereof.” Isaac D. West brought this action of ejectment, on June 13, 1911, to No. 12, September Term, 1911, of the court below. The issue having been arrived at the action of ejectment was tried in the court below, on November 19, 1912, and having resulted in a verdict and judgment in favor of the defendant the plaintiff appeals.

The petition of Hanna, at No. 653, September Term, 1910, for a rule on the plaintiff to bring ejectment, alleged the facts necessary to invoke the jurisdiction of the court and was clearly within the provisions of the Act of March 8, 1889, P. L. 10, as amended by the Act of April 16, 1903, P. L. 212. When the court made absolute the rule on Mr. West to bring an action of ejectment, or be barred, that was a final order so far as that proceeding was concerned, and the respondent was in position to appeal if he desired to question the regularity of that order: Fearl v. Johnstown, 216 Pa. 205. If the respondent desired to have that action of the court reviewed it was incumbent upon him to take his appeal within the period required by statute. Mr. West never appealed from that order. Not having appealed, he still had two courses open to him: if he did not desire to assert title to the land, he could simply do nothing, and after the period fixed by the order he and those claiming under him would be barred of any right of action; or if he believed that he had a good title to the land he could bring his action of ejectment. Having brought an action of ejectment, that action is to be disposed of and the rights of the parties determined upon the principles which control all actions of ejectment. The distinction between proceedings under the act of 1889 and those under the Act of June 10, 1893, P. L. 415, is clearly drawn in the opinion of Mr. Chief Justice Mitchell, in Fearl v. Johnstown, supra. The act of 1893 provides for the framing of an issue, in that proceeding, to determine the rights of the parties. The act of 1889 makes no provision for anything of that kind, and the respondent in proceedings under it is merely put to an election as to a future course of action. When he elects to bring an action of ejectment that action is collateral to the proceeding under the act of 1889 and upon the trial of the issue arrived at in the action, of ejectment he cannot raise any question as to the regularity of the order made in the original proceeding. The petition of Hanna averred the facts necessary to give the court jurisdiction under the act of 1889, and to permit. the present plaintiff, upon the trial of the issue in the action of ejectment, to raise any question as to the sufficiency of the evidence produced at the hearing of the proceeding under the statute, to sustain the averments of that petition, could only tend to becloud the real issue. The attempt to do this in the present case led to a result rather unusual; the plaintiff, who had brought the action and was asserting the right to recover, requested the court to charge: “That as to the subject-matter and all rights, titles, interests, matters and things in this action, the court is without jurisdiction.” The learned judge of the court below properly held that this action was to be tried as if the plaintiff had brought it voluntarily. All the specifications of error founded upon alleged irregularity in the original proceeding, under the act of 1889, are overruled.

The plaintiff brought his action of ejectment not merely for the 439 acre tract which- Hanna had described in his petition but for a tract containing 970 acres, of which the 439 acre tract was a part. The defendant filed a disclaimer for 531 acres of .the larger tract and claimed by metes and bounds the 439 acre tract, and as to the latter the parties arrived at an issue and went to trial. The land was situated in a mountainous region, and the evidence involved the not unusual features of interfering warrants, surveys and returns. The questions presented by the specifications of error do not render necessary any extended review of the evidence. The defendant offered in evidence the record at No. 394, November Term, 1870 of the court of common pleas of Dauphin county which disclosed that an action of ejectment had been' brought by the predecessors in title of this plaintiff against the predecessors in title of the defendant, for the same large tract of land for which the plaintiff had brought ejectment in this case, but in the earlier action the tract was averred to contain 901 acres “and allowance” more or less, instead of 970 acres, as averred in the present case. There was, however, no question that these two large tracts of land were identical. The earlier action of ejectment had been tried and, on February 19, 1874, resulted in a verdict “in favor of the plaintiff 600 acres, less sixty-two acres and seventeen perches as per deed from the executors of Jacob Miller to Edward Gratz, recorded in Deed Book M, vol. 3, p. 319.” The defendant also produced evidence which would have certainly warranted a finding that the defendants in that earlier action of ejectment and the grantee of those who had been plaintiffs in that action, that is, the predecessors in title of both the plaintiff and the defendant, had in the year 1878 agreed upon and marked upon the ground the line dividing their lands, as established by the verdict in the action of ejectment. The evidence would have warranted a finding that this plaintiff had distinct notice and actual knowledge of the existence of that consentable line at the time he acquired title. This evidence was so convincing that the court below felt warranted in giving binding instructions in favor of the defendant.

The law at the time the verdict in that old action of ejectment was rendered required two verdicts and judgments, in favor of the same party, to conclusively determine title to real estate. The evidence clearly indicates that the parties to that early controversy, having arrived at the conclusion that it was better to compose their differences, agreed upon a line between their respective parts of the large tract, which no doubt accounts for the fact that no second ejectment was for so many years brought. The Act of May 8, 1901, P. L. 142, abolished the rule requiring two ejectments in actions at law to determine the ownership of real estate by providing: “That where one verdict shall, in any writ of ejectment between the same parties, be given for the plaintiff or defendant, and judgment entered thereon, no new ejectment shall be brought; but such verdict and judgment thereon shall be final and conclusive and bar the right.” This act, however, only applies to actions brought after the day of its approval, and had no effect upon the rights of the parties to this action. The Act of April 4, 1907, P. L. 43, provides: “That where, prior to the ejectment act of one thousand nine hundred and one, a verdict or judgment in ejectment shall have been given for-‘the plaintiff or defendant no new ejectment shall be brought between the same parties, or their successors in title, unless said suit be brought within one year from the date of the passage of this act; but such verdict or judgment shall be final and conclusive, and bar the right, at the expiration of one year from said date as aforesaid.” This statute did not take from any party or litigant any right which they then possessed, it only fixed a limit to the time within which they must assert their existing rights. The purpose was to free real estate from stale claims, and to fix a limit to the time within which such claims, after having been once determined by a verdict not to be well founded, should be reasserted. The present case comes directly within the provisions of this statute. There had been a verdict in ejectment between the parties, all of the parties, under whom the plaintiff and defendant, respectively, claim, and that verdict was prior to the statute of May 8, 1901, P. L. 43. The plaintiffs in that action had asserted title to the whole of the large tract, the finding of the jury in their favor for 538 acres of that tract, only, was by necessary implication a finding that, as against the defendants in the action, they were not entitled to recover the balance of the tract. The court below was clearly right in holding that that verdict was conclusive upon the parties to the present action. There was, however, under the evidence, a question as to the exact location of the line between the tracts established by that verdict, when it came to applying that line to the land in its present condition. The litigants must take the parts of the tract given them by the verdict, but in order to identify those parts oral evidence was introduced, and the credibility of the witnesses was a question for the jury; and so with regard to the establishment of the consentable line and the knowledge of the plaintiff, at the time he acquired title, of the existence of that line; the evidence upon those questions was largely oral. The weight of that evidence may have been clearly with the defendant, but it was not entirely uncontradicted. This being so the questions of fact ought to have been submitted to the jury, and the court fell into error in giving bind- ' ing instructions in favor of the defendant. The specifications of error which refer to the action of the court in giving binding instructions in favor of the defendant are sustained, and all the other specifications are dismissed.

The judgment is reversed and a new venire awarded.