Carman v. Beam.

• Court: Pennsylvania Supreme Court
• Writing for the Court: Sterrett
• Citation: Carman v. Beam., 88 Pa. 319 (Pa. 1879)
• Decision Date: 03 February 1879
• Parties: Carman <I>versus</I> Beam, to use, &c.

88 Pa. 319

Carman versus Beam, to use, &c.

Supreme Court of Pennsylvania.

January 13, 1879.

February 3, 1879.

January 13th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 124.

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Thomas J. Diehl and J. C. Ferguson, for plaintiff in error.— The instruction was given to the jury without regard to the time when the possession of Carman became unlawful; mesne profits can only be recovered against an unlawful withholding of the possession: Heckart v. Zerbe, 6 Watts 260; Zimmerman v. Eshbach, 3 Harris 419. Where a person takes the title to a property expressly under and subject to an encumbrance, he thereby assumes the payment of that encumbrance. For the purposes of this case, Pearson, who was the defendant's grantee, and who conveyed the title to the plaintiff, was considered as the defendant; and when he conveyed to the plaintiff the title to the premises in question, expressly under and subject to this mortgage, and the defendant so accepted to it, he certainly was estopped in an action for mesne profits, from claiming from the defendant the amount of this mortgage: Campbell v. Shrum, 3 Watts 60; Blank v. Gorman, 5 W. & S. 36; Hoff's Appeal, 12 Harris 200; Woodward's Appeal, 2 Wright 322.

David W. Sellers, for defendant in error.—By the agreement of 1868, Kelly was to have a new house. The deprivation of possession from September 1868 to 1876, was attended by deterioration, while in the occupation of defendant and those claiming under him. To determine the measure of damages in mesne profits, the necessary expenditure to put it "in ordinary tenantable condition," when possession was received, was certainly allowable: Huston v. Wickersham, 2 W. & S. 308; Kille v. Ege, 1 Norris 112. When plaintiff received the house, it was encumbered with an additional mortgage of $2500, and it was certainly damaged to that amount, and the plaintiff was entitled to recover it.

Mr. Justice STERRETT delivered the opinion of the court, February 3d 1879.

The issue, first formed by the pleading, was solely as to the right of the plaintiff below to the possession of the premises described in the writ. Before the trial he obtained possession by virtue of the deed from Pearson, to whom the defendant had conveyed after suit was brought. He then gave notice "that on the trial a claim would be made for mesne profits, and also for the amount of $2500, secured by the defendant by virtue of a mortgage on the premises, while he was the mere custodian of the title."

However it may be elsewhere, in this state it has been decided that in our statutory action of ejectment, mesne profits may be recovered by giving notice of the claim when suit is brought, or afterwards, within a reasonable time before trial: Dawson v. McGill, 4 Whart. 230; Cook v. Nicholas, 2 W. & S. 27. Notwithstanding the plaintiff had acquired the legal title and was in actual possession of the premises before trial, he had the right to claim mesne profits for the previous unlawful detention of the possession; but to justify a recovery, it was necessary for him to establish his right to the possession at the time suit was brought in 1873, as fully as if he were prosecuting his action of ejectment for the sole purpose of obtaining possession. Accordingly, he undertook to do this by giving in...