Hasson v. Klee

Opinion by

Mr. Justice McCollum,

The oourt should have affirmed the defendant’s third point. It was a correct statement of the presumption arising from the facts recited in it. A possession like that described in the point is in conformity with a deed or conveyance of the land and inconsistent with title in a party cognizant of it. Hence the presumption of a grant. In Kingston v. Lesley, 10 S. & R. 383, Tilghman, C. J., said: “ The rational ground for presumption is, when the conduct of the party out of possession cannot be accounted for without supposing that the estate has been conveyed to the one who is in possession.” In support of the proposition involved in the defendant’s point it is sufficient to refer to the following cases : Taylor v. Dougherty, 1 W. & S. 324; Orr v. Cunningham, 4 W. & S. 294; Baskin v. See christ, 6 Pa. 154; Strimpfler v. Roberts, 18 Pa. 283; Warner v. Henby, 48 Pa. 187. It may be said that the refusal of the point was not prejudicial to the defense. But this is by no means olear. The explanation by the court of its refusal to affirm the point not only expressly denied the existence of the presumption claimed as arising from the facts stated in it, but impliedly denied the sufficiency of the facts to give title by the statute of limitations.

The defendant was entitled to an unqualified affirmance of-his sixth point. The point was based on section 1 of the Act of April 13, 1859, P. L. 603, which declares that “no entry upon lands shall arrest the running of the statute of limitations unless an action of ejectment shall be commenced therefor, within one year thereafter.” The point was “that no entry upon the property in dispute by the plaintiff or those under whom he claims, during the period in which the property was in actual possession of the defendant or those under whom he claims, would arrest the running of the statute of limitations where such entry was not “ followed within one year by suit for possession,” and the answer to it was “this point is affirmed — that is to say, if they acquired twenty-one years adverse possession at any time prior to 1893 it would be a bar to recovery.” The answer indicates a misapprehension by the court of the meaning of the point, and of the purpose of the act of 1859. Of course an entry upon the property by a party whose claim was barred by the statute of limitations would not reinvest him with title thereto. No legislation was needed to establish or enforce this proposition. The act of 1859, on which the sixth point was based, manifestly relates to an entry during the running of the statute of limitations, and to the proceedings necessary to make such entry arrest, from the date of it, the running of the statute. As the plaintiff’s testimony tended to show entries upon the property at different times by the plaintiff, or those under whom he claims, the point was pertinent and should have been affirmed without any misconstruction or qualification of it.

If the ruling of the court in the rejection of the defendant's evidence as to the general report or rumor of title was an error it was cured, by the subsequent reception of the rejected evidence. The admission of evidence which was subsequently stricken out on the motion of the defendant does not appear to afford any substantial ground for reversing the judgment. The same may be said of the general charge. As we have already seen, the answers to the defendant’s third and sixth points were erroneous and misleading, and as they denied to him the benefit of the instructions he sought, and was clearly entitled to, we are constrained to reverse the judgment.

We therefore sustain the third and ninth specifications of 'error. .

Judgment reversed-and venire facias de novo awarded.