Christian K. Harnish v. Quarryville [ C. K. Witmer & Co. v. Charles S. KilRailroad Co., and Pennsylvania Railroad lian. Rule to award an issue made abCompany. Bill dismissed at cost of solute. plaintiff. John W. Eshleman v. The Pennsylvania Railroad Company. Rule for a more specific statement made absolute. George W. Newman v. Charles W. Bitner. Exceptions to report of referee dismissed and report confirmed. Clarence D. Stoner v. John R. Bowermaster. Rule for judgment for want of a sufficient affidavit of defense made absolute. Elizabeth A. Wike . Leah Schlottv. hauer and Eli Schlotthauer. Rule to strike off levy discharged. C. P. AND Q. S. OPINIONS. By JUDGE LANDIS: Saturday, March 28, 1914. International Harvester Company of America v. C. D. Leeking. Rule to open judgment and let defendant into a defense discharged. A. Belle Hilton . the Leibig Manufacturing Co. Rule for a new trial discharged. A. A. Faxon, trading as American Engraving and Printing Company 2. Albert M. Deichler. Rule to enter judgment for defendant non obstante veredicto discharged. William McGallicher 7. H. R. Kinports, administrator of Martin Kinports, deceased. Rule to strike off judgment of non-suit discharged. Mary E. S. Becker and John H. Becker, her husband, z. Elizabeth Township Supervisors. Rule for a new trial. discharged. Harry Edelson 2. The Norwich Union Fire Insurance Society, limited. Rule for a new trial discharged. T. Wallace Reilly and T. H. Riddle 7. John W. Holman. Rule to strike off non-suit made absolute. John A. Kray v. Edward J. Kuhn. Rule to open judgment and let defend Millersville National Bank v. Chris-ant into a defense made absolute. tian Kunzler. Rule for a new trial discharged. In the matter of Philip Rutt, an alleged insolvent. Motion for continuance of hearing. Hearing fixed for Saturday before the third Monday of April next. Commonwealth 7. David Witwer and v. Benjamin Witwer. Appeal from summary conviction sustained and proceedings of magistrate set aside. Commonwealth v. William Brendle, David Gockley, David Witwer, Benjamin. Witwer and Warren Stauffer. Appeal from summary conviction sustained and proceedings of magistrate set aside. Commonwealth v. Uriss Eitnier. Appeal from summary conviction sustained and proceedings of magistrate set aside. Commonwealth 7'. Thomas Eitnier. Appeal from summary conviction dismissed and proceedings of justice confirmed. By JUDGE HASSLER: Franklin Grocery Company v. Charles S. Killian, defendant. Rule to frame issue made absolute. Commonwealth of Pennsylvania v. S. Commonwealth of Pennsylvania v. Commonwealth of Pennsylvania v Mamie Lindsay. Rule for a new trial discharged. Commonwealth of Pennsylvania . C. H. A. Dissinger. Rule for a new trial discharged. In re High Street, Lancaster City. O. C. ADJUDICATIONS. Twp. George W. Runner, Little Britain Mary G. Brubaker, E. Hempfield. LANCASTER LAW Review. VOL XXXI.] FRIDAY, APRIL 10, 1914. [No. 23 Superior Court. McMinn v. Cummings, Appellant. Real estate-Vendor and vendee-Adverse possession-Presumption. A vendor, after conveyance and before delivery of possession, is to be regarded as a trustee for the vendee so far as regards the possession, and if he wishes to change the character of the possession he must manifest his intention by some act of hostility to the title of his vendee, plainly indicating to the latter the intention to deny his right and to hold adversely. The refusal by a vendor of possession to his vendee on demand is notice to the latter of such intention. In an action of ejectment by a vendee against a vendor in possession, the evidence of one witness that when he was nine years old fifty-seven years before, the vendee came to the premises and demanded possession which was refused, is sufficient if believed to establish adverse possession but the credibility of the witness is for the jury, and the case must be submitted to them although the witness is not contradicted. Where at least twice in his charge trial judge told the jury that the testimony of a witness was uncontradicted, which was correct, but afterwards remarked that "if there is any testimony contradicting" him, you will remember it and consider it in connection with his testimony," the latter remark will not be considered as misleading to the jury. Appeal No. 87 of October Term, 1913, by Richard and Christiana Cummings, defendants, from judgment of C. P. of Lancaster County on a verdict for the plaintiff, Elizabeth B. McMinn. The suit was ejectment by the holder of a paper title against the vendor who claimed adverse possession for more than twenty-one years. The verdict was for the plaintiff. For opinion of the Court below, HASSLER, J., discharging a rule for a new trial, see 30 Law Review, 206. The defendant then took this appeal, assigning error as follows: 2. The Court erred in its charge in not instructing the jury that the defendant, having proved by James Oatman that demand for possession was made and refused in 1854 or 1855, for the premises, which was not contradicted. And the defendant, through George Oatman, her father, and Ann Oatman, her mother, having held possession from that date until 1909, for a period of fifty-four years, the title in them was absolute and no suit could thereafter have been brought. 3. The Court erred in not instructing the jury that thirty years' adverse possession under the statute, precluded the bringing or maintaining any suit in eject ment. 4. No evidence having been offered by the plaintiff tending to show any attempt on the part of Zachariah Oatman from 1854 or 1855, the time of the demand from George Oatman and refusal to deliver possession, until Zachariah Oatman's death in 1901, a period of fortysix or forty-seven years. This action was barred by the statute and it was the duty of the Court to have so instructed the jury. 5. The Court erred in its charge to the jury in the following statement: "If there is any testimony contradicting that of James Oatman, you will remember it, and consider it in connection with his testimony." 6. The Court erred in its opinion in refusing a new trial to the defendants on the first four reasons filed by the defendants which reasons were as follows: 1. The verdict was against the evi 1. Under the law and the evidence the dence. 2. The verdict was against the weight of the evidence. 3. The verdict was against the law and the evidence. 4. The verdict was against the law and the evidence. Edwin M. Gilbert, for appellant. The presumption that the grantor here held as trustee of the grantee was overcome by the testimony of James Oatman, which was not contradicted and was corroborated by the act of the vendee in acquiescing in the grantor's possession for fifty-seven years after the demand was made. Hunt v. Wall, 75 Pa., 413. It was misleading and error for the Court to say to the jury, "if there was any evidence contradicting that of James Oatman you will remember it," when there was none. It has been held: "That whenever it appears with a reasonable certainty, that actual and manifest injustice is done, or that the jury have proceeded on an evident mistake, either in point of law or fact, the Court will always give an opportunity, by a new trial, of rectifying the mistake of the former jury, and of doing complete justice to the parties." Cowperthwaite . Jones, 2 Dallas, p. 55. Turnbull v. Holker, 4 Yeates, p. 446. Stevens et al. v. Church, 8 Phila., p. 642. Hilliard on Evidence, page 349, says: "A new trial will be granted when it is against the oath of the only witness, who, deposed as to the point in question, or where the evidence was all on one side and that against the verdict." We believe that under our 2d, 3rd and 4th assignments it was error to permit this case to go to the jury at all and the Court should have instructed the jury that the action was barred. B. F. Davis, for appellee. Adverse possession is necessarily proved orally, and parol evidence is always for a jury, although what constitutes adverse possession is for the Court. Crambs v. Lynch, 4 Penny, 243. Kircher v. Springer, 4 Super., 38. Schwab v. Bickel, 11 Super., 312. A grantor who retains possession is presumed to hold as trustee for the grantee, unless he can show adverse possession. Ingles v. Ingles, 150 Pa., 397. Hads v. Tiernan, 213 Pa., 44, and 25 Super., 14. Connor v. Bell, 152 Pa., 444Bennett v. Biddle, 140 Pa., 396. Jenkins v. McMichael, 17 Super., 476. Deppen v. Borger, 7 Super., 434. Olwine v. Holman, 23 Pa., 279. Buckholder . Sigler, 7 W. & S., 154. February 26, 1914. Opinion by RICE, P. J. A vendor, after conveyance and before delivery of possession, is to be regarded as a trustee for the vendee so far as regards the possession, and if he wishes to change the character of the possession he must manifest his intention by some act of hostility to the title of his vendee, plainly indicating to the latter the intention to deny his right and to hold adversely to it. The law was so declared in Olwine 2. Holman, 23 Pa., 279, in recognition of the principle announced in Buckholder v. Sigler, 7 W. & S., 160, and the rule has been followed and applied in later cases: Ingles v. Ingles, 150 Pa., 397; Connor v. Bell, 152 Pa., 444; Pierce v. Barney, 209 Pa., 132; Hads 7. Tierman, 213 Pa., 44; s. c., 25 Pa. Super. Ct., 14. The learned counsel for the appellant, while conceding this to be the law, contends that the presumption that possession was retained in trust was overcome in the present case by the testimony of James M. Oatman, a son of George Oatman, who was the grantor in the deed of June 27, 1848, to Zachariah Oatman. His testimony was to the effect that when the witness was nine or ten years old (1854 or 1855) Zachariah Oatman came to his father's house and demanded possession of the premises embraced in the deed, which was fused. It was said in Milnes v. VanGilder, 197 Pa., 347: “ Refusal by a vendor in possession of premises to surrender them to a vendee demanding delivery is notice to the latter to proceed to the vindication of his rights, and, if he re delay doing so beyond the period of of his testimony is not to be implied twenty-one years, it is his own fault that from the failure of the plaintiff to prohis deed will not prevail against his ven- duce such contradicting testimony. Even dor's adverse possession. A vendor re- if his testimony had been as to a recent fusing possession to his vendee has, or conversation between deceased persons, imagines he has, good cause for his re- and had been of the clearest and most fusal, and is not required to become the positive character, it would not have actor in any proceeding for the annul- been within the province of the court to ment of his deed. He need only defy his declare that, in the absence of contradicvendee's right to possession by distinctly | tion, the jury should accept it as verity. refusing it when demanded, and, if then There were special reasons why the court he is not disturbed for twenty-one years, could not do so in the present case. As at the expiration of that period, the sta- the learned trial judge well says, in his tute protects him, no less than a stranger opinion overruling the motion for new to the title, if he can establish the kind of trial: James Oatman "testified from his possession required by the law in the in- recollection of what occurred in 1854, terval. This ought to be so, and a dila- fifty-nine years ago when he was but tory vendee ought not to complain of it. nine or ten years old, at an age when he By his delay, proof of what was the rea- was not likely to know the importance son for his vendor's refusal to deliver of what he heard, if he did hear it, so possession may become impossible." The that a doubt might have arisen in the facts testified to by James M. Oatman, minds of the jury whether he rememif established to the satisfaction of the bered and testified to exactly what did jury, were sufficient to bring the case occur. It, of course, was a question for within this principle. But we cannot the jury to believe him or not, and thus agree that, because his testimony as to decide whether the presumption that his the conversation that took place in 1854 father was in possession of the property or 1855 was not directly contradicted by by permission of Zachariah Oatman was any other witness, the defendants were overcome, and we left it to them telling entitled to binding direction in their them that if they did believe his testifavor. Applying the general rule as to mony, it would show George Oatman's the province of the court and jury, where possession to be adverse from that time, the establishment of a material fact de- and as it continued for more than pends on oral testimony, the court not twenty-one years afterwards, the defendonly was justified, but was bound to sub- ant would be entitled to their verdict. mit to the jury the question whether It would be presumptuous for us to say Zachariah Oatman demanded and George that the verdict was against the evidence Oatman unequivocally refused posses- because of the jury's refusal to believe sion of the farm in 1854. Without this the testimony of John (James) Oatman, fact, the presumption arising from the as they are quite as, if not more, capdeed controlled and was an absolute and able judges of his credibility than we complete bar to the claim of title by ad- are. verse possession. Without it, neither lapse of time, nor payment of taxes, nor undisturbed possession, nor inaction of the holder of the paper title, nor all of these facts combined, would be effective against the deed. The burden of proof rested on the defendants. In the absence of the testimony of James Oatman, the court would have been bound to give binding direction for the plaintiff. It is not surprising that after such lapse of time no witness could be produced to contradict him. Admission of the truth As they did not believe his testimony the verdict was not against the law. In view of the foregoing, we think the court was clearly right in refusing binding direction in favor of the defendants, and that there was no abuse of discretion in not granting their motion for a new trial. This is all we deem it necessary to say upon the assignments covering those two matters. Complaint is made in the 5th assignment of error of the court's remark, that "if there is any testimony contradicting that of James Oatman you will remem ber it and consider it in connection with his testimony." It is argued that, as there was no such testimony, the remark was misleading and detracted from the effect of his testimony. But at least twice in his general charge the learned judge had told the jury that his testimony was uncontradicted, and, in affirming defendants' second point, he told them again that it was uncontradicted. Taking the charge and the answers to points as a whole, we do not think there is any ground for surmising that the jury may have been misled by the particular remark assigned for error. The assignments of error are overruled and the judgment is affirmed. Common Pleas--Law Ehrhart, to use of Montgomery v. Set-off-Judgments-Exemption. Where the court allowed a judgment founded in contract to be set off against a judgment in tort arising out of the same transaction previously obtained and transferred to a third person, and directed both judgments to be satisfied on payment by the debtor in the latter judgment of a stated sum as the difference between the two, the debtor in the former judgment or his transferee cannot be allowed to deduct his $300 exemption and thus increase the balance payable. Rule to allow debtor's $300 exemp tion. C. E. Montgomery, for rule. W. U. Hensel, contra. January 17, 1914. Opinion by HASSLER, J. 859.64, which judgment he transferred to C. E. Montgomery, Esq. Christian Esbenshade subsequently obtained a judgment in an action in assumpsit against Alexander Ehrhart, which, with interest and costs, on September 18, 1911, amounted to $1,113.20. Both judgments grew out of the same transaction. On the application of Christian Esbenshade this Court permitted his judgment to be set-off against the judgment of Alexander Ehrhart, and directed both judgments to be satisfied upon the payment by Christian Esbenshade to Alexander Ehrhart of the difference between the two, amounting to something in excess of $1,800. The Superior Court affirmed this order. If we were to allow Alexander Ehrhart to claim an exemption against a judgment upon which an execution was not issued, and which is not now his property, it would increase the amount due him to $2,100 from $1,800, as provided in the order made by us. It would in effect be that the judg ment in assumpsit would have to be reduced $300 because it was not a judg ment in tort. This is not the purpose of the allowance of an exemption to a debtor, and in this case it is not asked that the allowance be made to the debtor, but to the person to whom he has transferred the judgment. The Superior Court did not mean that an exemption should be allowed to Ehrhart in what they said, but only referred to it as a reason why judgments in assumpsit should not be set-off against judgments. in tort, but they did not say it was a good reason in this case. We cannot allow the claim for an exemption, as prayed for, and discharge the rule to show cause why it should not be allowed. Parties. Wike v. Schlotthauer. This is an application for an allow- Deed-Restriction-Right to enforceance of the debtor's exemption, by one who is not the debtor, against a judgment upon which no execution has been issued. The facts are as follows: Alexander Ehrhart obtained a judgment in an action in tort against Christian Esbenshade, which, with interest and costs, on September 18, 1911, amounted to $2, Where, notwithstanding a provision in a deed that the grantee should "not sign or give any judgment upon this property during her lifetime and upon her death the property shall belong to her children," the grantee confessed judgment on which an execution was issued, a daughter of the grantee will not be heard to petition to strike off the levy, she not being a party to the record. |