Buck v. McArthur
| Citation | 86 Pa.Super. 49 |
| Decision Date | 09 July 1925 |
| Docket Number | 180-1925 |
| Parties | W. H. Buck and S.W. Gehr v. E. W. McArthur, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 15, 1925
Appeal by defendant from order of C.P. Crawford Co.-1922, No. 14 discharging rule for judgment upon the whole record in the case of W. H. Buck and S.W. Gehr v. E. W. McArthur.
Ejectment to recover a small piece of land in the possession and occupancy of defendant. Before Prather, P. J.
The facts are stated in the opinion of the Superior Court.
Case was twice tried before a court and jury, both trials resulting in a disagreement. Then both plaintiff and defendant moved the court for judgment upon the whole record. Both motions refused. Defendant appealed.
Errors assigned were the admission of evidence and the order of the court, discharging defendant's motion and rule for judgment upon the whole record.
O Clare Kent, and with him J. W. Smith and C. Victor Johnson for appellant. -- Discretionary powers of a guardian cannot be delegated: Lefera et al. v. M. C. Neney et al., 5 Neb. 318, 98 N.W. 679; Taylor v. Hopkins, 40 Ill. 442; Kellogg v. Wilson, 9 Ill. 357; McPherson v. Sanborn et al., 88 Ill. 150; Hill v. Canfield, 63 Pa. 77; DeBari v. Campoy, 17 Phila. 383-388; Woddrop v. Weed, 154 Pa. 307.
Frank J. Thomas, and with him Paul E. Thomas, of Thomas & Thomas, and Albert L. Thomas, for appellees. -- Ancient documents are admissible as good evidence: Jones et al. v. Scranton Coal Co., et al, 274 Pa. 312; McReynolds et al. v. Longenberger et al., 57 Pa. 13.
A stranger to the title cannot attack the regularity of the proceedings in the collateral proceeding: Riland v. Eckert, 23 Pa. 215; Lair v. Hunsicker, 28 Pa. 115; Glass v. Gilbert, 58 Pa. 266; Wray v. Miller, 20 Pa. 111; Brolaskey v. McClain, 61 Pa. 146; Lee v. Parker, 5 Wharton 342; and Coxe v. Blanden, 1 W. 533.
Commonwealth takes title in fee to such lands as it takes for perpetual use and permanent occupation in the construction of its canals: Wyoming Coal and Transportation Co. v. Price, 81 Pa. 156; Commonwealth v. McAllister, 2 W. 190; Robinson et al. v. West Penn R. R. Co. et al., 72 Pa. 316; Haldeman v. Pa. Cent. R. R. Co, 50 Pa. 425; Craig v. Allegheny, 53 Pa. 477; and Pa. & N.Y. Canal & Co., v. Billings, 94 Pa. 40.
Before Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
The action was one in ejectment. The land in dispute has irregular boundaries and is oblong in shape and consists of about a third of an acre. During the time that the Erie Canal was in process of construction and operation the waters of Conneaut Lake were raised about eleven feet in height, and the lake and the additional lands submerged by this rise of water were appropriated to public use and the title to said lands passed to the Erie Canal Company. Following the abandonment of the Erie Canal its title to said land and water passed through sheriff's sale and by subsequent deeds of conveyance to various grantees. In that chain of title it is conceded that defendant holds a good title in fee to the land once submerged, surrounding and forming all or nearly all of the entire boundary of the small oval piece of land in dispute. Following the abandonment of the Erie Canal the waters of Conneaut Lake were lowered about eleven feet to their original level. During the high water period the little piece of land in controversy was never submerged but was either a peninsula or an island. The submerged lands of the defendant around the land in question by the lowering of the lake have now been returned to their normal condition and are no longer part of Conneaut Lake. Two questions were submitted to the jury. The first -- at the time Conneaut Lake was at its height and before it was lowered by removal of the dam, about the year 1872, was the piece of land known in this case as the Hogback an island or peninsula? The second -- was the land described in the proceedings against plaintiffs' predecessor in title to bring ejectment included in the land described in that proceeding and the notice served on the defendant in that action? The jury could not agree as to either answer. There having been a request for binding instructions on both sides, both parties then moved the court under the Act of 20th of April, 1911, P. L. 70, to have judgment entered upon the whole record. This the court declined to do. Hence this appeal.
The first question involved is whether the plaintiffs showed a paper title to the land in question? In the line of plaintiffs' title there was offered an agreement dated the 26th day of August, 1852, between H. R. Riddle attorney-in-fact for B. S. Schneck, by virtue of written power, guardian of Arianna S. Riddle and Jeremiah Foust, plaintiff predecessor in title, for the sale of certain real estate in Crawford County which it is claimed included the land in suit. The power to sell was given to the guardian (not named) by special Act of Assembly, 25th day of March 1851, P. L. 256. The appellant contends that the power to sell being given to the guardian, it could not be delegated; that any delegation of such discretion given by the guardian to H. R. Riddle was null and void; that the appointment of a guardian is based upon the confidence in his personal integrity and that he cannot substitute any one for him in matters of discretion. He, therefore, claims that plaintiffs' title is fatally defective and that in consequence the plaintiffs' case falls. There is no question that the discretionary powers vested in a guardian cannot be delegated by him and we need not cite the many cases which are found in defendant's brief. The counsel for the plaintiffs admits the correctness of this general proposition. His reliance, however, is upon the fact that defendant cannot question the absence of the power of the guardian to delegate the right to sell. That is a matter which concerns the parties directly interested. The paper in question is nearly 70 years old and was found among the papers of one of the parties thereto after his death. It was properly admitted in evidence. The defendant is not in a position to question this transaction which passed the property and for which consideration is presumed to have been paid and distributed. Even if the guardian of this minor exceeded his authority the presumption is that the consideration for the land passed to the proper parties. Appellees cite a number of cases, Riland v. Eckert, 23 Pa. 215; Lair v. Hunsicker...
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