Mason v. Ammon

• Decision Date: 03 October 1887
• Docket Number: 235
• Parties: MARY MASON ET AL. v. D. R. AMMON ET AL
• Court: Pennsylvania Supreme Court

11 A. 449

117 Pa. 127

MARY MASON ET AL. v. D. R. AMMON ET AL

No. 235

Supreme Court of Pennsylvania

October 3, 1887

Argued May 5, 1887 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

ERROR TO THE COURT OF COMMON PLEAS OF UNION COUNTY.

No. 235 January Term 1887, Sup. Ct.; court below, No. 54 March Term 1885, C.P.

This was a summons in ejectment served on February 28, 1885, in an action by Mary Mason, Elizabeth J. Mason and Martha Mason, heirs and devisees of John Ditty, deceased, against Daniel R. Ammon and Mrs. Mary Murty, to recover a lot of ground on South Second street in the borough of Lewisburgh. On May 19, 1885, Wm. H. Marr was added as a defendant. The plea was not guilty.

On the trial, March 9, 1886, the plaintiffs showed title in John A. Reed and deed from John A. Reed to George F. Miller, dated December 9, 1834, and deed from George F. Miller to John Ditty and Ralph Ditty, dated May 11, 1835. Then, having proved the attestation and that John and Ralph Ditty, as well as the attesting witness were dead, they offered in evidence the following paper:

Received, Lewisburgh, March 3, 1838, of John Ditty, forty dollars for my share of the lot situated on South Second street.

Witness present.

A. Graham.

Ralph his X mark Ditty

The admission of this paper was objected to, as being too indefinite and without seal, but the objection was overruled and offer admitted. It was then shown that early in 1838 John Ditty removed a house from across the street upon this lot; he was a single man and died unmarried July 2, 1838, leaving his brother Ralph and a sister Martha Mason, wife of Henry Mason, with whom he had made his home. Martha Mason died August 27, 1871, leaving four children, Robert, who died without issue, Martha, Mary and Elizabeth J., the plaintiffs. Henry Mason died July 7, 1874. Ralph Ditty died about 1865. The plaintiffs then put in evidence the will of John Ditty, dated September 4, 1837, admitted to probate January 22, 1880, which was as follows:

I John Ditty of the Borough of Lewisburg county of Union and State of Pennsylvania being of sound mind do hereby bequeath unto my sister Martha, wife of Henry Mason, during the term of her natural life, and at her death I bequeath it to the child or children of said sister Martha, my farm in Elk Township Venango County Pennsylvania. Said farm contains one hundred and three acres and one hundred and thirty-one perches (103 A 131 per). The deed of said farm is recorded in Franklin Venango Pennsylvania. Said farm was bought from Shippen Tract number 2741.

Said farm adjoins the lands of John Ewing and Henry Shippen. I also bequeath unto said sister and at her death to her child children or other lineal descendants any money and any other property whether real or personal which I possess at my death wheresoever situate. I bequeath unto my brother Ralph Ditty twenty-five dollars. I also bequeath unto my brother William Ditty twenty-five dollars. There is to be no dispute with my sisters child or children about my farm for it is to be theirs at their mother's death. I do not give said sister Martha any legal right to sell said farm, for it is the childs or childrens at her death. I nominate Dr. William H. Ludwig and Alexander Graham executors of my will.

In the defendants' case in chief, John V. Miller, commissioners' clerk, being on the stand:

Defendants' counsel offer to prove that the premises in controversy were assessed to Ralph Ditty, as the owner, from the year 1838, until 1865 or 1866, the date of his death. To be followed with proof that he was in possession, of the premises, adverse and hostile, from 1838 to the time of his death. The assessment of taxes offered as some evidence to show that he was in possession of the property at the time of their levy and assessment.

Plaintiffs' counsel objected: 1. Because the offer is to show the assessment of an acre of ground, and the description of the property assessed does not correspond with the description of the property in this suit. 2. That it is not evidence for the purpose of showing title in the defendant in this suit. 3. That the defendant, being the brother of John Ditty, the decedent, and it already appearing that they were tenants in common in the year 1838, of the land described in this suit, that Ralph Ditty cannot claim by adverse possession by virtue of that fact; and the testimony is irrelevant and immaterial to the issue trying.

Witness: All this land was assessed as lots.

By the court: Whether the defendant can defeat the title, given in evidence by the plaintiff, by adverse user, depends upon the construction to be given to the will of John Ditty, given in evidence by the plaintiff, and we admit the evidence for the present in order to show an adverse possession. To which the defendant excepts and bill sealed.

Evidence then followed sustaining the offer.

Defendants' counsel then offer record in equity, William H. Marr and others v. Samuel H. Ziegler, administrator, etc., and others, No. 1 of May term 1880. This offered for the purpose of reading the testimony of the witnesses, except William Moore, which was perpetuated by the bill filed in that case, and who are now dead; and for the purpose of showing, among other things, that John Ditty, under whom plaintiffs claim, and Ralph Ditty owned in partnership, as the witness states it, a number of lots in this town; that in 1838, I believe before John Ditty went to the west, there was a parol agreement executed between the parties by which John Ditty took a certain portion of the property and Ralph Ditty took the premises in dispute, and the agreement was executed and Ralph Ditty remained in possession of the lot assigned to him until his death, as the exclusive owner of the property.

Plaintiffs' counsel objected: . . . .

By the court: On inspection of the evidence, relied upon to establish the offer, in our opinion it falls short of what is necessary to constitute authority on an exchange of lots and parol partition, and we therefore reject the evidence.

Defendants' counsel then offered the testimony for the purpose of showing that Ralph Ditty, more than 21 years before the impetration of the writ, took adverse possession and hostile possession of the premises in dispute.

Plaintiffs' counsel object because the limitation cannot run against the plaintiffs in this suit until their right to possession accrued.

By the court: Whether the objection to the testimony is good or not, as we have had occasion to say before, depends upon the construction to be given to the will relied upon by plaintiffs, under which the plaintiffs claim. The evidence of William Ditty, I believe, does show an adverse possession, and for that reason we admit the evidence for the present. To which the plaintiffs except and bill sealed.

Under this offer the testimony of William Ditty was read. The defendants then offered evidence to show that said will was a forgery, which was excluded on the ground that the probate of the will was more than five years before, and therefore conclusive. Other evidence was introduced to show adverse possession by Ralph Ditty, by tenants who paid him rent, until his death in 1865, when on Sept. 20, 1867, it was sold by his administrator under order of the Orphans' Court to Wm. H. Marr, from whom title afterwards passed to Daniel R. Ammon and Mary Murty, defendants.

The court, J. C. BUCHER, P.J., charged the jury:

The plaintiffs allege that the title to this property, as well as the right of possession, is in them and not in the defendants. It is an inherent principle in the law of ejectment, that the plaintiff must always recover, if he recovers at all, upon the strength of his own title and not upon the weakness of his adversary. The contention of the plaintiffs is that they have established this. They allege that one John A. Reed was the owner of this land, and that by his deed dated the 9th day of December, 1834, he conveyed it to George F. Miller, as his assignee, for the benefit of creditors. This deed was given in evidence, and this then was followed up by the deed of George F. Miller, the assignee of Reed, dated May 11, 1835, by which he conveyed the property in dispute to Ralph Ditty and John Ditty as tenants in common; that is to say, he conveyed the undivided half of the lot in dispute to each of these parties, thus giving them the whole as the tenants in common. Then the plaintiff followed this with evidence of a receipt dated March 3, 1838, drawn by Ralph Ditty and attested by Alexander Graham, in which he receipted to John Ditty for his share of the purchase money for a lot on South Second street. Thus the plaintiffs contend that the entire title to the property in dispute became vested in John Ditty by reason of his purchase of the share of Ralph. This then was followed by the will of John Ditty dated the 4th day of September, 1837, and probated on the 22d of January, 1880. The plaintiffs also gave evidence that they were the children of Martha Mason, who is one of the devisees mentioned in the will of John Ditty.

The contention on the part of plaintiffs is that under this will of John Ditty a life estate was vested in Martha Mason, the mother of these plaintiffs, with the remainder over in fee to them at her death, and for that reason they claim that they are entitled to recover in this action. There was evidence given that John Ditty entered into the possession of this land in the spring of 1838, by rolling a house over on to it from an adjacent lot, which he occupied. Thus, you see, he died seized of the property, because the evidence is undeniable that he died in July, 1838, after this house was erected and whilst he was in possession; so he died seized of the land, and this took the title...