Kreamer v. Voneida
| Decision Date | 30 October 1905 |
| Docket Number | 124 |
| Parties | Kreamer, Appellant, v. Voneida |
| Court | Pennsylvania Supreme Court |
Argued April 17, 1905
Appeal, No. 124, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1903, No. 22, reversing judgment of C.P. Centre Co., Nov. T., 1900, No. 96, on verdict for plaintiff in case of J. L. Kreamer v. William Voneida William Close and William Fees. Affirmed.
Appeal from judgment of the Superior Court.
The facts appear by the opinion of the Supreme Court, and by the report of Kreamer v. Voneida, 24 Pa.Super. 347.
Error assigned was the judgment of the Superior Court.
Judgment affirmed.
A. O. Furst, with him, J. C. Meyer, for appellant. -- Our first contention is that the title to the Joseph Henry survey has become derelict and is non-subsisting, and therefore it cannot be treated as an outstanding title to defeat appellant in this action.
We further contend that William Voneida and his codefendants have neither right nor title to the land, and therefore they are mere trespassers thereon, and hence have no title; and denying possession, they could not in law set up a title in Joseph Henry, derelict as it is, as a defense to this action: Riland v. Eckert, 23 Pa. 215; McBarron v. Gilbert, 42 Pa. 268.
It is the duty of the defendant in an ejectment, if he does not dispute the whole of the plaintiff's claim, to enter his defense for such part as he disputes; if he pleads the general issue he admits himself to be in possession of the whole of the land claimed in the writ: Ulsh v. Strode, 13 Pa. 433; Hill v. Hill, 43 Pa. 521.
This ruling of the Superior Court is erroneous in our view for another reason. No disclaimer of either title or possession was filed or insinuated. The defendants had their day in court. When called upon to try the case, if they were not in possession, it was then their duty to speak, and it was equally their duty to disclaim possession or title or both: Kirkland v. Thompson, 51 Pa. 216; Lane v. Harrold, 66 Pa. 319; Duncan v. Sherman, 121 Pa. 520; Lehigh Valley Coal Co. v. Beaver Lumber Co., 203 Pa. 544.
John Blanchard, with him Edmund Blanchard and Andrew A. Leiser, for appellees. -- The plaintiff's entire prima facie case is put at issue by the general plea of "not guilty," subject to such limitations of the defense to a part of the land claimed as the defendant at his option, not the plaintiff's option, may see fit to introduce into the case: Zeigler v. Fisher, 3 Pa. 365; McCanna v. Johnson, 19 Pa. 434; Bronson v. Lane, 91 Pa. 153; Kirkland v. Thompson, 51 Pa. 216.
In an action of ejectment, in the absence of a return of the service of the summons on the defendant, verified by the oath of the sheriff, it is necessary to prove that the defendant was in possession even though there be an appearance and plea by McIntire v. Wing, 113 Pa. 67.
Lapse of time does not abandon nor make derelict a perfect title to land: Naglee v. Albright, 4 Wharton, 291; Bunting v. Young, 5 W. & S. 188; Hoffman v. Bell, 61 Pa. 444; Bear Valley Coal Co. v. Dewart, 95 Pa. 72; Putnam v. Tyler, 117 Pa. 570.
Before DEAN, BROWN, MESTREZAT, POTTER and ELKIN, JJ.
The plaintiff below claimed title to the land in controversy -- 103 acres and 158 perches situated in Haines township, Centre county -- under a patent from the commonwealth to Henry Hess, issued December 12, 1821. On August 12, 1796, a patent was issued to Aaron Levy on a warrant granted to Joseph Henry, July 24, 1792, for 400 acres and 52 perches, and it was admitted on the trial that the land called for in the Hess patent was embraced within the lines of the Levy patent. One of the defenses set up was this outstanding title granted by the commonwealth more than twenty-five years before the patent was issued to Hess. With nothing more, this was, as was properly held by the Superior Court, a complete defense, for the plaintiff could recover only on the strength of his own title: Kreamer v. Voneida, 24 Pa.Super. 347. Another defense was that the plaintiff had not proved possession of the land by Voneida, the real defendant. The writ had not been served on him, the return of the sheriff being as follows: "As to William Voneida, he not being found in the county of Centre, and that the lands described in the within writ are located in said county of Centre and are unoccupied, and that the said William Voneida does not reside in the county in which said lands are located and has no known agent or person having the charge or superintendency of said lands resident within the county of Centre and notice of said suit was given personally to William Voneida at Laurelton, Union county, Pa., as directed by the act of 13th of April, 1858, and a copy was given him of within writ." These two defenses, resting on undisputed facts, were made the subject of two points, asking that a verdict be directed for the defendants. The points were reserved and a verdict directed for the plaintiff. Subsequently judgment was entered on the verdict.
The question of the plaintiff's right to recover in the absence of any proof of the possession of the land by Voneida, was not considered by the court in the opinion directing judgment to be entered on the verdict, and, as to the other defenses, the trial judge was of opinion that the Levy title was derelict and abandoned, and that the defendants could not, therefore, set it up against the Hess title. On appeal to the Superior Court the judgment below was reversed and a new trial awarded. From this judgment the appeal of the plaintiff below is before us.
From the sheriff's return it affirmatively appears that Voneida was not an occupant of the land, and was not in the county at the time the writ was served. It was served on him in Union county, the return being that it had been served as directed by the Act of April 13, 1858, P.L. 256 but as the directions of the Act of April 14, 1851, P.L. 612, to which the act of 1858 is but a supplement, had not been complied with, the service was ineffectual to bring the defendant within the jurisdiction of the court. This seems to be admitted by the appellant. On this appeal, however, the position is taken, and apparently for the first time, that as the defendant voluntarily appeared the plaintiff was not required to prove that he was in possession of the land, and the fourth section of the Act of March 29, 1824, P.L. 167, is cited in support of this. That section provides: "That any person wishing to bring an ejectment for land on which no person resides, and which lands have been sold for taxes, may bring his action and serve the writ on the person who purchased the said lands; and if such person cannot be found in the proper county, then the court, after the return day of the writ, may, on motion of the plaintiff or his attorney, grant a rule on the defendant, describing the premises, to appear and plead, which rule shall be published for sixty days successively,...
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