Hull v. Campbell , 1867 Pa. LEXIS 251 ( 1867 )

The opinion of the court was delivered, January 7th 1867, by

Thompson, C. J.

This was an action of trespass by plaintiff against the defendant for cutting timber. The plaintiff had no actual possession of the land, and, for the purpose of establishing legal seisin or constructive possession, gave in evidence a patent for the land f^om the Commonwealth to his grantors, and their conveyance to him.

The defendant asserted no title to the land, and took defence under the plea of “ Not guilty.” Pie stood before the court below, and now before this court, as an intruder simply. Under these circumstances, the right of possession as against him was conclusively established by the patent and conveyance under it.

The defendant was not in a condition to controvert the validity of the grant from the state. All that was said therefore about the warrant for the land having been surveyed and returned for land at another place, and in relation to a supposed outstanding title, or rather, former appropriation of the land, on the Ruclc warrant, was outside the case. It did not lie in the defendant’s mouth to set up objections to the patent which the state did not make or move. Balliott v. Bauman, 5 W. & S. 150, is directly to this effect. See also Read v. Thompson, 5 Barr 327; Gingrich v. Foltz, 7 Harris 38, as to the effect of recitals in a patent against Claimants subsequent to its date. That was the condition of the defendant, or perhaps it would be more proper to say, as he stands on the record, he was not a claimant at all. He was a mere intruder. He could not controvert the fact that the patent was not for unappropriated land; whatever possession he ever had was long after the date of the patent. A kindred principle-has often been administered in cases of tax title — that as against an intruder it is not necessary to show the pre-requisites of sale: Troutman v. May, 9 Casey 455, and authorities therein cited.

For these reasons, and without more minutely noticing the various assignments of error, the judgment must be affirmed.