Cambria Iron Co. v. Tomb

The opinion of the court was delivered, by

Woodward, C. J.

There was but one point put to the court, and the only error assigned is upon the answer that was made thereto. The action was ejectment against William Tomb and his two sisters. All three defendants pleaded not guilty, but afterward William confessed a judgment to plaintiff for all his interest. The sisters then .took a special defence for two undivided third parts, and on the trial the court were asked to charge that the plaintiffs were entitled to recover for one-third, although it may appear that the defendants, Mary and Margaret, are entitled to the other two-thirds.

The court said no, the girls have taken defence for only two-thirds, and if they have shown title to that proportion, they had the right of possession in common with the plaintiffs until partition.

It seems to us that the point was discreetly answered. Counsel think that the plaintiffs were entitled to recover their one-third as against all the defendants. When the suit was brought such was undoubtedly their right, but when they took a judgment against one of the three tenants in common, and the other two limited their defence to two-thirds of the premises, the question undoubtedly came down to this — Have the two shown title to two-thirds ? What else could be in litigation upon such a record ? Not the plaintiffs’ right to one-third of the whole, for that was confessed. If one-third of the whole was what the plaintiffs sought, they should have taken execution upon their judgment against William, instead of trying ejectment against the sisters after their disclaimer of that one-third. The plaintiffs contend that they may recover a third of the whole. They have got it already. And they should not forget that the defendants’ right to two-thirds of the whole is as complete as theirs to one-third.

As the_ record stood at the trial, the plaintiffs manifestly were not entitled to recover if, as their point assumes, Mary and Margaret were entitled to two-thirds. They had got all they were entitled to have, and the defendants, entitled to all they defended for, the verdict justly belonged to thoin.

Some questions of costs might have been raised upon the record, but as they were not, we do not touch them.

The judgment is affirmed.

Strong, J., dissented.