Heft v. McGill

• Decision Date: 29 June 1846
• Citation: 3 Pa. 256
• Parties: HEFT & HIX <I>v.</I> McGILL et al.
• Court: Pennsylvania Supreme Court

3 Pa. 256

HEFT & HIX v. McGILL et al.

Supreme Court of Pennsylvania.

June 22, 1846.

June 29, 1846.

June 22.

ERROR to Common Pleas of Lebanon county.

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Forster, for plaintiffs in error.—To the admission of evidence offered by plaintiffs below, to show the annual value of the premises from the time Hix took possession, in 1838, for the purpose of showing that the purchase money was thus paid or extinguished, we objected for the following reasons: — The action trying was ejectment; and this was evidence to recover mesne profits. We hold the law and practice to be established in Pennsylvania, that mesne profits cannot be

recovered in ejectment, without notice from plaintiff of such intention. Dawson v. McGill, 4 Whart. 230; Cook v. Nicholson, 2 Watts & Serg. 28. We offered the record of an ejectment by C. Hix v. Mrs. McGill, widow of James McGill, for the purpose of showing a recovery of this land, with a condition of release on payment of the amount unpaid on the agreement of James McGill by a specified time. This evidence was in some measure rendered admissible, after the evidence of Mrs. McGill, that Hix had threatened to turn her out of possession, and that she left in consequence. If the heirs of James McGill had been defendants in that action, that verdict, uncompiled with, would have been for ever conclusive against their recovery on that title. Treasler v. Fleisher, 7 Watts & Serg. 139.

Then the question is, whether, under the circumstances, the plaintiffs in this action could be affected by the recovery in the record offered. James McGill had died in possession under the contract; his widow continued in possession for six years after, without any other title; her children living with her, without any other guardian; she defending upon this very equitable title, having the amount to be paid to secure the title ascertained. If that record was not evidence, and evidence of the conclusive character, was it not evidence in another view? It certainly was, if laches can be imputed to these plaintiffs, as minors, at all. This question is better applicable to show this recovery in ejectment as a fact, with others stated, to impute delay and backwardness in the parties in interest, and thus raise the question of relinquishment of the contract. See Youst v. Martin, 3 Serg. & Rawle, 429.

The father had been dead six years before Hix brought his action; two years had elapsed before Hix took possession, and then five more before these plaintiffs stirred in the matter.

The minors in this case sue by a next friend. I am aware that we have a decision of the court, that suits may be brought by next friend of minor, without previous sanction or appointment by the court. But since the act of 13th April, 1807, it may be questioned, whether a minor can institute an action of ejectment, without guardian. The 1st section says, "And minors may sue by their guardians, as in other cases."

Kline and Pearson, for defendants in error.—The evidence of mesne profits was properly received; as it was offered to show that a part of the unpaid purchase money was extinguished. Evidence of the annual value of the property was a part of the plaintiffs' case to enable them to recover the premises, but not to recover the mesne profits beyond the land. Wykoff v. Wykoff, 3 Watts & Serg. 481. The authorities cited on the other side were, where the plaintiff sought a recovery for mesne profits. The record of the suit of Conrad Hix v. Elizabeth McGill, the widow, was not evidence in this action. The plaintiffs in this suit were neither parties nor privies to that. They do not claim through Elizabeth, the defendant in that suit, and they cannot be prejudiced by any act of her's. She had no interest in this suit, and would have been a competent witness, without a release. 20 Eng. Com. Law Rep. 420. The courts have encouraged the practice of minors suing by their next friend. But if minors could not thus sue, it can only be taken advantage of by plea in abatement. 7 Johns. Rep. 372; 1 Chitty's Plead. 346. Campbell v. Galbreath, 5 Watts, 523.

June 29. BURNSI...