Vanderslice v. Donner

Opinion by

Smith, J.,

As to the land here in controversy, while the contentions of the parties relate to both possession and title, the verdict is conclusive only of the plaintiff’s possession when the trespass was committed. Such possession was indispensable to sustain the action, and this was all that was necessary. As against one in actual possession, the right of a claimant of title, out of possession, must be asserted by an action of ejectment. The possession set up, however, must be more than a mere intrusion on either the actual or the constructive possession of another. Here the defendants alleged a possession previous to that asserted by the plaintiff, and the evidence of each party was directed to proof of both title and prior possession. Whatever the proof of title by either, the jury found for the plaintiff on the question of prior possession, and this was sufficient.

The specifications of error must be overruled. As to the first, since possession by a tenant is in law possession by the landlord, it is always competent to show such possession when the question of possession by the landlord is involved. The evidence of the witness to which the second relates is not quoted as required by our rules, nor is its character or extent given; - an intermediate part only appears on the page indicated. Orderly practice and the record of the case remaining in this court require that this rule be observed. Each specification must be self-sustaining, and embody everything necessary to its determination here; a mere reference to the page, elsewhere, on which some of the essential matters of the point appear, is not sufficient. As to the third, the testimony of the witness showed nothing that had not already been brought out by the appellant on cross-examination; this being merely that the land had been held by the husband of the witness “ just the same as Mr. James,” the preceding occupant, had held it. Furthermore, in the charge, everything relating to the title derived from- Mr. James was eliminated, .and the plaintiff’s claim of title, apart from the statute of limitations, confined to that derived from Mrs. Winnett. Hence the admission of the evidence, even if erroneous, could not have prejudiced the defendants. Where pertinent testimony is properly admitted, no subsequent complaint touching its informal admission will prevail: Collins v. Houston, 138 Pa. 481; Spotts v. Spotts, 4 Pa. Superior Ct. 448. While the testimony is voluminous, involving extensive examination, its legal effect, in review, may be thus briefly summarized.

As to the specifications relating to the charge, if the court erred at all it was in occasional intimations that the plaintiff, in order to recover, must show both possession and a right of possession. But the defendant cannot complain of this, since any effect that it may have had must have operated in his favor. As a whole, the charge correctly defined the matters essential to maintain the issue on each side, and the character of the evidence by which these were to be established. The issue involved questions of fact, which, under the evidence, could be determined only by the jury. These were submitted with instructions that clearly presented the matters to be considered, and left nothing for the appellant to complain of.

Judgment affirmed.