Miller v. Bealer

• Decision Date: 16 May 1882
• Citation: 100 Pa. 583
• Parties: Miller <I>versus</I> Bealer and wife.
• Court: Pennsylvania Supreme Court

100 Pa. 583

Miller versus Bealer and wife.

Supreme Court of Pennsylvania.

May 15 and 16, 1882.

May 16, 1882.

May 15th and 16th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Lancaster county: Of January Term, 1882, No. 299.

D. G. Eshleman (with him Philip D. Baker), for the plaintiff in error. —In ejectment, a misdescription of the land in the writ may be amended: Leeds v. Lockwood, 3 Norris 73; Sample v. Robb, 4 Harris 305. Even if the amendment was improper, we should have been permitted to withdraw it, and proceed to trial as to the lot originally described.

Samuel H. Reynolds (D. McMullen with him), for defendants in error.—The amendment introduced a new cause of action, and was, therefore, improper. Having been allowed in the first instance, the court was right in correcting its error, and entering a nonsuit. After the judgment of nonsuit was entered, it was too late for the plaintiff to withdraw the amendment. He could not take the chance of a favorable judgment, and after an adverse judgment, shift his position in the same action.

Mr. Justice TRUNKEY delivered the opinion of the court, May 16th 1882.

When the defendant moves for a nonsuit, the plaintiff's evidence must be taken to be true, and every reasonable inference of fact, which a jury might draw from it in favor of the plaintiff, must be drawn by the judge: Smyth v. Craig, 3 W. & S. 14. In effect, the motion is a demurrer to evidence, except that judgment cannot be entered for the plaintiff, and the defendant is considered as admitting every fact which the evidence tends to prove: Bevan v. Insurance Co. 9 W. & S. 187.

In 1871, Mrs. Bealer was living on the property in controversy, which then belonged to White. Miller gave her money at different times, amounting to $1,635. He and Mrs. Bealer agreed to buy the property from White, she to make the purchase, he to give her the money, and the deeds to be made in his name. One deed was executed on April 23d, 1872, the other on April 22d, 1873. He first learned that the deeds were not made to himself when he received the deeds, and he received neither till in August, 1873. The suit for one lot was brought on the 17th of June, 1878, and the plaintiff was allowed to amend the description on October 24th, 1881, so as to include the other lot. As the case comes, these are admitted facts.

In view of such a case, the able counsel for the defendants do not deny the plaintiff's title to the lots, unless he is barred from...