Bennett v. Morrison

Opinion,

Mr. Justice Paxson :

We do not think the mere fact of the recovery in the action of ejectment brought by Mrs. Weatherby against Chester Dennison rendered the possession of the latter hostile and adverse to Mrs. Weatherby. The judgment was by default; the ejectment was to enforce the article of agreement, and therefore in affirmance of it. No subsequent proceedings were ever had upon this judgment; no habere was issued, nor was possession delivered to the plaintiff. Such a recovery is not equivalent to an entry, even to bar the statute of limitations, and therefore not equivalent to actual possession : Powell v. Smith, 2 W. 126, Workman v. Guthrie, 29 Pa. 495. The vendor of land sold under articles of agreement must not only in some way repudiate the agreement, but must take actual possession of the premises either in person, by an agent, a tenant, or another vendee, in order to break the relation his vendee sustains to him under the agreement, before the statute will commence to run.

If the recovery in the ejectment were all there is in the case, the court below would have been right in withdrawing it from the jury and directing a verdict for the plaintiff. But there is the testimony of the defendant himself, who swears that he paid Dennison $15 for the possession in 1868; that Dennison delivered up the key to him in pursuance thereof, and that he has been in adverse possession ever since; that he never paid any rent to his brother J ames; that he claimed to own the property and repudiated his brother’s claims as landlord; and also that he has paid the taxes thereon continuously since 1868. It is true all this is denied by the plaintiff, and it is quite possible the jury would find the truth on her side. But the evidence amounts to more than a scintilla, and it was error to withdraw it from the jury.

The judgment is reversed, and a venire facias de novo awarded.