Grier v. Sampson

• Decision Date: 01 January 1857
• Parties: Grier versus Sampson.
• Court: Pennsylvania Supreme Court

27 Pa. 183

Grier versus Sampson.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

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T. Mellon and Woods, for plaintiff in error.

G. P. Hamilton, for defendant in error.

The opinion of the court was delivered by WOODWARD, J.

This was an action on the case against an alleged owner of real estate for a personal injury occasioned to the plaintiff by a permissive nuisance on the defendant's premises.

That the owner of real estate, lying along a public street or highway, is bound to keep it in such repair as to make it safe to passers-by, and is liable in damages for injury resulting from his neglect to perform this duty, is a proposition unquestioned by the thirteen errors assigned upon this record. That the tenant in possession, if there be one, is under a like obligation and liability, unless the landlord has covenanted to repair, is not only an undisputed proposition, but was one of the main grounds of plaintiff in error's defence in the court below. Grier, it was said, was not liable because he was not the owner of the premises; but if he was owner he was not liable, because Smith was in possession. We have not been furnished with the evidence of title, but we learn from the charge that Smith had been the owner of the lot; that he built the houses and excavated the vault under the street which caused the injury; that the premises were sold as his property at sheriff's sale to Grier, who was his creditor; and that after the buildings were destroyed by fire in the spring of 1853, the premises remained vacant, and the vault or cellar was left open and exposed, no barriers or protection of any kind being thrown around it to guard the public against accidents in passing. The sheriff's sale vested the legal title in Grier, and there is nothing in the objection that the title did not comprehend the locus in quo, which it is said was in the street, and not in the lot.

A conveyance of land bounded by a road or street, gives the grantee a title to the middle of the road or street, if the grantor owned thereto: Paul v. Carver, 12 Harris 207; and in the absence of title papers we are to presume that a lot bounded by a street extended to the middle of it. If this street in Temperanceville was laid wholly on the adjoining owner; if the lot in question was indeed bounded by the margin, and not the middle of the street, the defendant should have shown it. Without any evidence to that effect, we hold that the title he acquired by the sheriff's sale extended to the middle of the street, and comprehended, of course, the locus in quo. But he offered to show, as set forth in the sixth bill of exception, that after the sheriff's sale he agreed by parol with Smith that he would reconvey the premises on being paid the amount that Smith owed him, and what he had expended in the purchase of the property; and that in pursuance of this agreement Smith remained in possession, repairing, using, and occupying the premises, and paying the rents to the defendant on account of the stipulated purchase-money until the buildings were destroyed by fire, when the defendant received the residue of the purchase-money out of the insurance upon the buildings and Smith's goods and fixtures. The court ruled that the defendant might show Smith in possession at the time plaintiff was injured; but that if the premises were vacant at that time, the possession followed the legal title, and was in the defendant; and that the parol agreement without such possession in Smith was no evidence of title. Was it?

A purchaser of land at sheriff's sale acquires not the possession of the debtor as whose property it is sold, but only the right of possession; and the Acts of Assembly furnish him with a summary process for obtaining the actual possession. If, instead of resorting to his legal remedy, he makes such an agreement as was offered to be shown here, it might be a serious question whether there was any such taking possession in pursuance of the parol agreement as would amount to part performance; but if it be granted that there was, it is indispensable to the vitality of such an agreement that the possession be maintained. That Smith did not maintain his possession, that he was...