Krider v. Lafferty

• Decision Date: 06 February 1836
• Citation: 1 Whart. 303
• Parties: KRIDER and Another v. LAFFERTY.
• Court: Pennsylvania Supreme Court

1 Whart. 303

KRIDER and Another v. LAFFERTY.

Supreme Court of Pennsylvania.

February 6, 1836

IN ERROR.

1. In trespass for breaking the plaintiff's close, and carrying way his goods, evidence of the value of the goods is admissible on the part of the plaintiff, although he may have brought replevin for the same goods, if the defendant has pleaded property in that action, and it is still depending; and à fortiori, if it has been discontinued, though such discontinuance was after the commencement of the trial of the action of trespass.

2. If a paper purporting to be a receipt, is rejected by the Court but afterwards admitted on proof of its authenticity by the person signing it, the rejection in the first instance cannot be assigned for error, on the ground that it compelled the party offering it, to call as a witness the person signing it, who was the witness of the other party, and thus gave the other party the benefit of the cross-examination.

3. In trespass against a purchaser at sheriff's sale, where the question was whether the purchase included a certain piece of ground in possession of the plaintiff; the defendant gave in evidence a receipt signed by the former owner of the land sold at the sheriff's sale, by which he agreed to give up possession at a certain time: it was held that the plaintiff might examine the witness who gave the receipt, to show that it was not his intention to include in the agreement, the lot occupied by the plaintiff.

4. The rule that parol evidence is not admissible to alter or contradict written instruments, applies only to cases between the parties to the instrument, their representatives, and those claiming under them; but not to strangers. Per KENNEDY J.

5. A deed in the following words: " Memorandum of an agreement made, & c., this 24th day of February, 1816 between J. L. of, & c., and D. L. of, & c witnesseth, that the said J. L. hath let unto the said D. L. his legal heirs and representatives, a certain piece of meadow containing one acre, & c., at the rate of $15 per acre, to be paid by the said D. L., or his legal heirs, annually, to the said J. L. his heirs and assigns. In witness both parties have hereunto set their hands and seals, in the year first above written," & c.: was held to pass a fee simple to D. L., subject to an annual ground rent in fee, and not to be a lease for years merely.

6. Where the owner of a lot of land containing about twenty acres, conveyed one acre of meadow land to A., who neglected to record his deed, but took possession and planted it with willows for the purposes of his trade of basket making, which willows he cut every year at the proper season, and he continued in this possession about 14 years, when the land of his vendor was sold at a sheriff's sale; it was held that the possession of A. was sufficiently distinct and unequivocal to give notice to the purchaser at the sheriff's sale.

7. It cannot be assigned for error, that the Court below declined answering a question put to them by a juror, on a point of law.

UPON a writ of error to the District Court for the City and County of Philadelphia, it appeared that an action of trespass was brought in that Court by Daniel Lafferty against John J Krider and Joshua Peeling, to recover damages for breaking and entering the plaintiff's close, & c., under the following circumstances:

John Lentz the elder, being the owner of a tract of land situate in the township of Passyunk and County of Philadelphia, containing 18 acres and 20 perches, on the 24th of February, 1816, executed the following instrument:

" Mem. of an agreement made and this 24th day of February, one thousand eight hundred and sixteen, between John Lentz of the Township of Passyunk, County of Philadelphia, farmer, of the one part, and Daniel Lafferty of the same place, basket-maker of the other part, witnesseth

That the said John Lentz hath let unto the said D. Lafferty, his legal heirs and representatives, a certain piece of meadow containing one acre, be the same more or less, at the rate of fifteen dollars per acre, to be paid by the said Daniel Lafferty or his legal heirs annually, to the said John Lentz, his heirs and assigns.

In witness both parties have hereunto set their hands and seals in the year first above written.

JOHN LENTZ, [L. S.]

DANIEL LAFFERTY, [L. S.]"

Lafferty took possession under this instrument, and for several years cultivated willows, to be used in his trade of basket-making.

Lentz died in the year 1817, and by virtue of proceedings in partition in the District Court, the said tract of 18 acres and 20 perches, was sold by the sheriff, and purchased by Krider one of the defendant's in the month of September, 1830.

In the spring of 1831, he sent some men to cut the willows; which was the trespass complained of.

The declaration contained two counts,--

1. For breaking and entering the plaintiff's close, treading down, trampling upon and spoiling the plaintiff's willows, and cutting down the willows, and taking and carrying away the willow twigs, & c., and converting and disposing thereof, and breaking down, prostrating and destroying the plaintiff's fences.

2. For cutting down and destroying the plaintiff's willows and carrying them away, and converting them, & c.

Issue having been joined on the plea of not guilty, the cause came on for trial in the District Court, on the 8th of November, 1833, when the plaintiff, after giving in evidence the foregoing instrument of the 23th of February, 1816, examined Daniel Coppall, a witness, who testified as follows:

" Lafferty used to be in possession of a one acre willow lot: whether he was or not when the willows were cut, I don't know. I can't say whether he planted the willows. It was a willow lot long back. It always went by the name of Daniel Lafferty's Garden, since I knew it; I have known him cut the willows on it. He keeps a tavern on the banks of the Schuylkill, farms, and last season followed basket-making. I went there to help Peeling cut willows down in April, 1831. We had cut down all but some which were in the water, which was cold, and we thought we would leave them for a warm day. We had tied up 18 or 20 bundles. Lafferty came and asked by whose authority we cut. Peeling said, by Mr. Krider's. Lafferty said he considered them his property, and forbad Peeling taking them away. Peeling said if that was the case, he would quit them and let them be. We left the garden and all went away together. Lafferty, Peeling, Wm. Hoffner, a man named Billy, myself, and I think one or two of Peeling's men, all went with intention to help Peeling cut down willows. Peeling is a basket-maker, lives near the Buck. Lafferty wished him to leave them till Monday morning, he would show him something. Can't say how many bundles were cut, as we did not tie them up. I am a basket maker. It was the proper season for cutting willows. We had tied 18 or 20 bundles, not a quarter of them. I have bought willows sometimes, can't say for how much. I remember its being called Lafferty's Garden ten or twelve years ago."

The plaintiff then called a witness to prove the value of the willows cut by the defendant's order; but the defendant's counsel objected to any evidence being given of their value, on the ground that an action of replevin had, previously to bringing this suit, been instituted by Lafferty against Peeling, in the Court of Common Pleas; wherein the defendant had claimed property and given a property bond to the sheriff. The plaintiff's counsel, however, produced a certificate from the prothonotary of the Court of Common Pleas, dated on the day of the trial, setting forth that the action of replevin had been discontinued on that day. The Judge admitted the evidence, and the defendant's counsel excepted.

On his part, the defendant gave in evidence the sheriff's deed, bearing date the 20th of September, 1830, and acknowledged on the 24th of the same month, conveying to him in fee ( inter alia ) the said one acre lot. He then called Richard Peltz a witness, who testified as follows:

" I am the son-in-law of the late John Lentz, and the acting executor of his will. I am acquainted with the two tracts of land mentioned in the sheriff's deed. It includes the acre of willow ground. The whole property in the deed was during the life of John Lentz, senior, let by him to his son John Lentz, junior. John Lentz, junior, held the property as tenant from March 1817, till the sale to Krider. After the death of his father, John Lentz paid the rent to me as acting executor. I never knew as executor, any one as tenant of the property but John Lentz. No one but John Lentz paid me the rent. I gave him receipts for the whole rent due the heirs, and took receipts from him for his portion of what might be due, exchanging the balance of money which might be due from one to the other. I settled yearly with him. John Lentz is also an executor. The executors of John Lentz, sen., are, Philip Peltz, John Lentz and myself. The lease was originally, as I understood, from old John Lentz, for his son to take possession, and rent to commence on the first of March, 1817. He had possession before, but the rent to commence then; John had possession before 1817; but I can't say he had particularly possession of that one acre lot, but his father gave him permission to do as he pleased as tenant. John Lentz, jr. knew Lafferty had a lease of the acre lot, and was in possession, at the time he took the farm of his father. I do not know that Lafferty was in the habit of settling and paying rent to John Lentz as executor. I knew that Lafferty had taken that acre of land from John Lentz deceased, and had planted willows in it; and I knew that in the arrangement between John Lentz and his father

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