Haslett v. Foster

The opinion of the court was delivered, February 15th 1864, by

Agnew, J.

There is but one question in this case, the construction of the Act 13th April 1858, § 1, Purdon of 1861, p. 365.

The Act of 14th April 1851, § 11, Purdon of 1861, p. 365, provided for the notice of writs of ejectment, brought by vendors against vendees to enforce specific performance where the lands are not occupied, and the vendees are out of the county, by publication of a rule to appear and plead, for sixty days. The Act of 13th April 1858, § 1, declares that the Act of 14th April 1851 shall extend to all cases where claimants or mortgagees desire to bring ejectment for unseated or unoccupied lands, and the adverse party does not reside -in the county. But the proviso to the Act of 1858 requires that before trial or judgment shall be had in any such suit, it shall be made to appear, to the satisfaction of the court, that the defendant had notice in fact of the suit in time to appear and defend it.

The question is, whether this proviso extends to the case of an ejectment brought by a vendor against a vendee for specific performance. We think it does, not so much from the letter of the act (for this might be doubted, if we had to rely on the letter alone), as from the fact that it must be construed in pari materia with the former Act of 1851, and others passed in the interval, and in the same year.

The Act of 18th April 1853, § 1, Purdon 1861, p. 365, enacts that any person wishing to bring ejectment for land claimed adversely to him by any person or corporation, not resident or being.within the county where such lands lie, may bring his action and serve the writ on any person within the county having charge or superintendence of the land in behalf of or as agent of such party claiming adversely: provided, that before any trial or judgment shall be had in such suit, it shall be made to appear, to the satisfaction of the court, that the defendant had notice in fact of the suit in time to appear and defend it. It will be noticed that the proviso of the Act of 1858 is an exact transcript of the Act of 1853, while the latter extends to all actions of ejectment against non-resident owners. It may be well supposed the penman of the Act of 1858, in copying from the Act of 1853, intended the Act of 1858 to be coextensive with that of 1853.

Then comes the Act of 21st April 1858, § 1, Purdon, 1861, p. 31, which provides for the service of a summons, or mesne process upon non-residents of the Commonwealth doing business here, upon the agent or clerk, and provides also that before final judgment is entered in any case under this act, actual notice in writing shall be given to the party defendant of such action, and the nature thereof.

Reading all these acts together, they seem to leave no doubt of the intention of the legislature to require actual notice in all ejectments for unseated or unimproved land. When we consider also the inconvenience of a rule for each class, where one rule for both would serve so much better, by preventing confusion, and consequent error, it seems to us the proper construction of the Act of 1858 is to require notice to the defendants to the satisfaction of the court, whether the plaintiffs be vendees or other claimants, or mortgagees.

This notice was not given as required by the court below, and therefore the judgment must be reversed, the publication alone for sixty days of the rule to appear and plead being insufficient.

Judgment reversed, and the record ordered to be remitted for further proceedings in the court below.

Woodward, G. J., was absent at Nisi Prius.