Mobley v. Bruner

• Decision Date: 04 January 1869
• Parties: Mobley <I>versus</I> Bruner.
• Court: Pennsylvania Supreme Court

Page 481

59 Pa. 481

Mobley versus Bruner.

Supreme Court of Pennsylvania.

November 16, 1868.

January 4, 1869.

November 16th 1868.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Fayette county: No. 137, to October and November Term 1868 D. Kaine, for plaintiff in error.—There was no evidence to entitle the plaintiff in error to recover, and the court should have directed a nonsuit: Pitts. and S. Railroad v. Gazzam, 8 Casey 340. The plaintiff must show title: Lykens v. Whelan, 3 Harris 483; Shumway v. Phillips, 10 Harris 151.

D. Donner, for defendant in error.—The court was bound to enter judgment against any plaintiff who did not prove a right to recover: Act 31st March 1823, § 1, 8 Sm. Laws 141, Purd. 366, pl. 14; Hinkle v. Riffert, 6 Barr 196. Against defendants who show no title it is enough for plaintiff to show a right of entry: Lair v. Hunsicker, 4 Casey 115; Riddle v. Murphy, 7 S. & R. 230. Bruner's entry is for the benefit of all: Campbell v. Galbreath, 5 Watts 423; Carothers v. Dunning, 3 S. & R. 373.

The opinion of the court was delivered, January 4th 1869, by WILLIAMS, J.

There is nothing in the first three assignments of error requiring much discussion. The judgment of nonsuit was properly entered against the plaintiffs, who failed to establish their right to the land in controversy. It did the defendant no harm, and was expressly authorized by the Act of the 31st of March 1823.

It does not appear that the court was asked to enter a compulsory nonsuit against all the plaintiffs, and if the record had shown such a request, the refusal of the court to order a nonsuit would not have been reviewable here: The United States Telegraph Company v. Wenger, 5 P. F. Smith 262.

The objection to the charge for misdirection in instructing the jury to find for the plaintiff has nothing to sustain it. The charge is not on the record, nor is there any bill of exception embodying its substance, and for this reason the alleged error should not have been assigned to it. But there is more substance in the 4th assignment. The verdict was for the plaintiff for the whole land in controversy, subject to the opinion of the court upon two questions reserved for consideration, with leave to enter judgment for the defendant notwithstanding the verdict, if of opinion that the law was against the plaintiff thereon, viz.:

1st. Can the plaintiff, who is shown to be a tenant in common with others not upon the record, recover the possession of the whole premises against the defendant, who has shown no title?

2d. Can he recover without showing more than that Achor Worley, under whom be claims title, or one of his heirs, died in the possession of the premises, the defendant showing no title?

Upon the hearing of the reserved questions the court directed judgment to be entered upon the verdict for the plaintiff, and the entry of this judgment is assigned for error.

As against the defendant, who showed no title, and who is to be regarded as a mere intruder, the plaintiff was entitled to recover on showing that his ancestor, under whom he claimed title as heir, died in possession of the premises: West v. Pine, 4 W. C. C. R. 691.

But was he entitled to recover the whole land of which he was tenant in common with other heirs? Undoubtedly his entry would enure to the benefit of his co-heirs, not only...