Criswell v. Hulings
| Citation | 132 Pa.Super. 306,200 A. 683 |
| Decision Date | 15 July 1938 |
| Docket Number | 209-1938 |
| Parties | Criswell et al., Appellants, v. Hulings |
| Court | Pennsylvania Superior Court |
Argued April 29, 1938
Appeal from judgment of C. P. Venango Co., April T., 1935, No. 81 in case of Bessie M. Criswell et al., by their father and next friend, John C. Magee, v. Lily S. Hulings.
Ejectment.
The facts are stated in the opinion of the Superior Court.
Judgment entered for defendant and against plaintiffs, opinion by McCracken, P. J. Plaintiffs appealed.
Error assigned was entry of judgment for defendant on pleadings.
Judgment affirmed.
D. J Skelly, of Skelly & Mogilowitz, with him G. G. Martin, for appellants.
S. B. Babcock and Robert M. Dale, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.
This appeal is from an entry of judgment on the pleadings in an action of ejectment.
Lily S. Hulings, the appellee herein, presented her petition to the Court of Common Pleas of Venango County, averring that she is the sole owner in fee and in possession of certain premises which she purchased May 15, 1933, at a sheriff's sale held pursuant to a writ of fi. fa. issued against F. B. Criswell and Hattie Criswell. The property is described as follows:
"Being the same which Ann C. Mackin and Nicholas Mackin, her husband, by deed dated April 3, 1920, recorded in the Recorder's Office of said Venango County in Deed Book No. 373, Page 221, conveyed to 'The Sisters of Mercy,' who by deed dated the 14th day of January, 1925, recorded in the said Recorder's Office in Deed Book No. 399, Page 315, conveyed the same to F. B. Criswell," excepting and reserving therefrom 10 feet along Eighth Street which Criswell and his wife had previously conveyed to the Borough of Emlenton for public travel.
The petition further alleged that Bessie M. Criswell, although not in possession, claims an interest in, or title to, the aforesaid real estate, or a part thereof, and prayed that a rule be granted upon her to bring an action of ejectment within six months from the service of the rule.
An answer was filed by Bessie M. Criswell, who denied that the petitioner is the sole owner in fee and in possession of all the land described in the petition, and averred that she, and John Magee, James Magee and Robert Magee, minor (grand) children of Margaret Magee, have title to a portion of the land claimed by the petitioner, and described as follows, to wit:
"Front or Opera House Lot, bounded Northerly by Water Street; Easterly by Bridge and Bridge Street; Southerly by the Allegheny River; and Westerly by Eighth Street, having a frontage of 75 feet, more or less, on Water Street and the Allegheny River, and 50 feet, more or less, on Eighth Street and Bridge and Bridge Street."
This rule was made absolute and thereafter the respondents brought an action of ejectment for the "Front or Opera House Lot" as described in their answer, which appellee claims is the southern portion of lot No. 98, which is divided by a public street, formerly designated as Water Street, now known as River Avenue.
The plaintiffs filed their declaration with an abstract of title, averring title out of the Commonwealth, which by divers conveyances was vested on the 15th of October, 1920, in A. Cecelia Mackin, otherwise known as Ann C. Mackin, who, admittedly, is the common source of title; adverse possession in Ann C. Mackin for a period of more than 45 years; Ann C. Mackin's death on the 15th of October, 1920, and her will, dated June 28, 1916, wherein she gave and devised to the "Mercy Hospital, Allegheny County Sisters of Mercy," two lots of land situated in the Borough of Emlenton, described by distances and boundaries and known as the "Front or Opera House Lot," lying south of River Avenue, and the "Mackin Hotel Lot," lying north of River Avenue. These alleged two lots constitute the property claimed by the appellee herein. That was the first time any reference was made of record that lot No. 98 did not extend to the Allegheny River.
The plaintiffs also averred the election of Nicholas Mackin, surviving spouse of Ann C. Mackin, to take against the will of the decedent. Attached to the abstract was a list of the following deeds: Hugh Keating et al. to Ann C. Mackin, dated July 25, 1883, recorded in Deed Book vol. 135, p. 182; a quit claim deed from the Sisters of Mercy and the Mercy Hospital of Pittsburgh (the devisees under Ann C. Mackin's will) to Bessie M. Criswell, dated September 5, 1933, recorded in Deed Book vol. 446, p. 194; and the quit claim deeds from the heirs of Nicholas Mackin, who died July 18, 1929.
Lily S. Hulings filed an answer and abstract of title. The latter included a deed from Ann C. Mackin and her husband to the Sisters of Mercy, Allegheny County, a corporation, dated April 3, 1920, recorded in Deed Book vol. 373, p. 221; the deed from the Sisters of Mercy to F. B. Criswell, dated January 14, 1925, recorded in Deed Book vol. 399, p. 315; and the sheriff's deed, dated May 25, 1933, recorded in Deed Book vol. 428, p. 225, conveying the interest of Criswell to Lily Smith Hulings. The deeds from Keating et al. to Ann C. Mackin and from Ann C. Mackin and husband to the Sisters of Mercy recite that the premises conveyed are the same as were awarded to Ann C. Mackin by order of the Orphans' Court of Clarion County in proceedings in partition. The description in all of the conveyances is substantially the same as in the Keating deed.
An amended declaration and abstract of title was thereafter filed by plaintiffs,...
To continue reading
Request your trial