Kille v. Ege

• Decision Date: 09 October 1876
• Citation: 82 Pa. 102
• Parties: Kille <I>et al. versus</I> Ege <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 102

82 Pa. 102

Kille et al. versus Ege et al.

Supreme Court of Pennsylvania.

May 12 and 13, 1876.

October 9, 1876.

May 12th and 13th 1876.

Before AGNEW, C. J., MERCUR, GORDON and WOODWARD, JJ. WILLIAMS and PAXSON, JJ., absent. SHARSWOOD, J., did not sit in this case.

Error to the Court of Common Pleas of Cumberland county: Of May Term 1876, No. 101.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lemuel Todd and John Hays, for plaintiffs in error.—The action of ejectment was brought by the Cox heirs and decided against them, and that action was not therefore such notice as to debar Kille from setting off his improvements against a later claimant. Kille had no notice of the Ege heirs' claim until April 24th 1874, and the action did not exist as to them until that date. In an action for mesne profits, the record of the judgment in ejectment is conclusive that defendants were in possession at time ejectment was brought, and also as to the title during the time laid in the demise, but not evidence of the length of time defendants were in possession: Bailey v. Fairplay, 6 Binn. 450. If plaintiffs ask for damages anterior to the service of the writ in ejectment they must show their title and the possession of defendants: Osbourn v. Osbourn, 11 S. & R. 58; Huston v. Wickersham, 2 W. & S. 313; Postens v. Postens, 3 Id. 183; Drexel v. Man, 2 Barr 271; Sopp v. Winpenny, 18 P. F. Smith 80. The action of ejectment is conclusive only from the time it is brought down to the execution of the habere, and the judgment therein is not evidence of any matter which came collaterally in question: Duchess of Kingston's Case, 11 Harg. State Trials 261; Hibshman v. Dulleban, 4 Watts 191; Lentz v. Wallace, 5 Harris 414; Lamb v. Millar, 6 Id. 450; Martin v. Gernandt, 7 Id. 127; Ihmsen v. Ormsby, 8 Casey 201; Tams v. Lewis, 6 Wright 410; Lewis & Nelson's Appeal, 17 P. F. Smith 165. The record of an action, founded on common law, consists of the writ, declaration, pleas and judgment: Erb v. Scott, 2 Harris 20. The record remitted from the Supreme Court simply shows the affirmance of the judgment in the court below. The bills of exception only become part of the record in the Supreme Court for purposes of review. Neither the opinion of the Supreme Court for the assignments of error are returned as part of the record, and yet the court below say, from these plaintiffs have shown title anterior to the bringing of ejectment, and that these matters should be taken notice of in this action. Seyfert, McManus & Co. paid $2000 rent, but no ore was taken out by them; clearly Kille will have to repay this rent and recovery of it by the plaintiffs will subject him to pay it twice. Its reception by Kille did not injure plaintiffs. What are permanent improvements is a question of law for the court and not a question of fact for the jury, and the court should have said that the "machinery, buildings and conveniences for mining ore" were fixtures, and instructed the jury to allow defendants a set-off for their value: Christian v. Dripps, 4 Casey 271; Harlan v. Harlan, 8 Harris 306; Roberts v. Dauphin Deposit Bank, 7 Id. 71; Ewalt v. Gray, 6 Watts 427; Morrison v. Robinson, 7 Casey 459; Walker v. Humbelt, 5 P. F. Smith 408. It should have been left to the jury to ascertain the quantity of land of the Cox tract embraced in the Seyfert, McManus & Co. lease. Defendants should have been permitted to show by witnesses who were familiar with the land, the premises, their value and the improvements; what was the value of the land when known to have ore on it, but not developed, and its value after the erection of improvements, to show plaintiffs had sustained no damage.

S. Hepburn, Jr., and S. Hepburn, for defendants in error.— The amendment of the record in the ejectment suit by adding the names of the Ege heirs after defendants in that suit had given notice in their abstract of title upon which they would defend, that the Eges and not the Coxes were the owners of the land in dispute, was certainly proper: Alden v. Grove, 6 Harris 385; Kaul v. Lawrence, 23 P. F. Smith 416. The amendment would not have deprived defendants of any valuable right; they did not complain that it would work them any injury, and failing to do this or object to the amendment in the proper action, it is too late in a collateral suit to remedy the omission, and deprive the other party of a right incident to and inseparable from his recovery: Hill v. Meyers, 10 Wright 21; Beatty's Adm'rs v. Burne's Adm'rs, 8 Cranch 108. The action tried did exist from its date. The same defendants upon whom the writ was served remained and knew as well of the action before Kille came upon the record as afterwards, and it was they, not he, who improved after the writ of ejectment was served, and the additional plaintiffs were added with their knowledge and without objection. Plaintiffs do not contend that the record in the ejectment is conclusive of plaintiffs' right to recover mesne profits or of their title for a longer period than from the date of the writ until the date of the habere facias, but they do hold that in an action for mesne profits, if the record and proceedings of the trial of the ejectment be offered in evidence, and they conclusively show that the title of the plaintiffs and defendants were distinctly put in issue and adjudicated, for a period long anterior to the date of the writ, then the defendants are concluded from contesting that title, and the plaintiffs will be deemed to have proved their title, for the period determined by the ejectment, without other evidence. The charge of the court below when reduced to writing and filed by request, and the notes of testimony so far as necessary to explain the charge, are parts of the record: Northumberland County Bank v. Eyer, 8 P. F. Smith 97-102; Downing v. Baldwin, 1 S. & R. 298; Munderbach v. Lutz, 14 Id. 125. The rent received by Kille from the Seyfert, McManus & Co. lease, was money received as profits from plaintiffs' lands, was not his, and was certainly as fair an estimate of what profits should be paid plaintiffs as could be found. Its payment should not be delayed to abide the result of another trial between other parties which may never be brought: Breading v. Blocher, 5 Casey 349; Ranck v. Becker, 13 S. & R. 43. The improvements for which credit is allowed must be permanent and beneficial: Jackson v. Loomis, 4 Cowan 168; and their character as well as value are questions of fact for the jury: Worthington v. Young, 8 Ohio 403. The evidence offered in the 13th assignment of error was simply an opinion, not a fact, and the value of an undeveloped ore bank that no human eye ever saw certainly cannot be proved as a fact from which a jury are to fix actual damages.

Mr. Justice MERCUR delivered the opinion of the court, October 9th 1876.

While due effect should be given to the statutes authorizing amendments, yet care must be taken that they be not so used as to pervert their true spirit. None of the defendants in error were originally parties to the action of ejectment, the record of which they gave in evidence. They were substituted some two years after the writ issued. The original plaintiffs had no title and were nonsuited. The defendants in error did not derive title from them, but recovered on their own title solely. It was in nowise connected with the original plaintiffs. The so-called amendment was not the addition of names omitted through mistake, nor of parties holding any joint interest with the original plaintiffs. There was no privity of title or interest between them. They were strangers to each other's claim. The substitution was not authorized by the statute. That question, however, is not now before us on bill of exceptions. The substitution having been made, and the record being given in evidence in a subsequent suit, we may declare its effect.

Amendments depriving the opposite party of any valuable right shall not be allowed; hence, when the name of a person was added as plaintiff in ejectment after suit brought, it was held that, if at the time of the amendment the title of the new party was barred by the Statute of Limitations, he could not recover: Trego et al. v. Lewis, 8 P. F. Smith 463; Kaul et al. v. Lawrence et al., 23 Id. 410. It follows therefore that, although the defendants in error were substituted without objection, yet they thereby acquired no rights relating back of their substitution. As to them, the action commenced when their names were put on the record. The first assignment is sustained.

The 2d, 3d, 4th, 10th and 11th assignments will be considered together. The action of ejectment was a legal averment of the right of the plaintiffs therein to the possession of the land. By their recovery that right was established. In this subsequent action for mesne profits, the verdict and judgment are conclusive of their right to recover damages from the time their action commenced down to the execution of the habere facias possessionem: Drexel v. Man, 2 Barr 271. But when they sought to recover for damages or profits prior to their action, the verdict and judgment were not conclusive as to such prior time. They were then required to prove their title; for the record only showed that they recovered the term mentioned, from their substitution: Hare v. Fury, 3 Yeates 14; Bailey et al. v. Fairplay, 6 Binn. 450; Osbourn v. Osbourn, 11 S. & R. 58; Huston...