Moore v. Collishaw

• Decision Date: 11 April 1849
• Citation: 10 Pa. 224
• Parties: MOORE <I>v.</I> COLLISHAW.
• Court: Pennsylvania Supreme Court

10 Pa. 224

MOORE v. COLLISHAW.

Supreme Court of Pennsylvania.

April 3, 1849.

April 11, 1849.

April 3.

IN error from the District Court of Philadelphia.

Bleight and F. W. Hubbell, for plaintiffs in error.—The judge mistook the issue: it was not whether we might tack Kreider's possession to ours, but whether we had shown an adverse possession by him for twenty-one years. If this was shown, there could be no abandonment. The title was perfected by the adverse possession; and, when perfected, is as incapable of abandonment as any other title; it can only pass by grant: 2 Barr, 184; 5 S. & R. 236; 3 John. 267. Admitting that Mrs. Hartman did take possession for her co-tenants, yet the mortgage by her afforded conclusively, and as matter of law, the presumption of an ouster: 10 S. & R. 182; 3 W. 77; 1 W. & S. 184; 9 W. 363. After such an act, it was not competent for her, as against the mortgagee at least, to restore the seisin of her co-tenant by her own consent merely.

Watts, contrà.—There was no evidence of an adverse possession within the statute, by Kreider. The owners of the land were beyond seas during all the time. Hence, until the act of 1815 took effect, the possession did not commence to be adverse. From 1815 we had fifteen years to bring an action: 12 S. & R. 330. Before that period expired, Kreider's possession ceased: it did not pass to the next tenant. He claimed, under a distinct title, the mortgage and sheriff's sale. It is well settled that such a title cannot be tacked to the next occupancy, unless the party claim under the former tenant. The mortgage by Mrs. Hartman was not conclusive evidence of an ouster; she says she never meant to mortgage the whole, nor did she afterwards hold adversely. Besides, the statute could not then begin to run; for the owner was a lunatic, and so continued until her death, in 1844. This point is, however, not in the case, not having been excepted to.

April 11. BELL, J.

By the record, it appears but two exceptions were taken on the trial to the charge of the presiding judge. These are: first, to so much of it as instructed the jury the defendant could not avail himself of Kreider's possession; and, second, to that part of it which submitted to the jury, as one of fact, the question of abandonment by Kreider, without any proof of it. In this court, other supposed errors in the charge have been assigned. But, it is clear, we cannot notice them without a violation of legal propriety. The rule is, the complaining party must take his exceptions before the rendition of the verdict, and, if required, point out, specifically, the errors he avers have been committed. When this is done, he is not permitted to exercise his ingenuity in the discovery and suggestion of defects, after the charge is filed; defects which, had they been brought to notice at the moment, might have been corrected; or which, perhaps, owe all their apparent importance to the absence of some addition or explanation, given orally to the jury, but in the after effort to condense the written charge, overlooked by the judge, as of little consequence in reference to the exceptions actually taken. In the instance before us, it is more than probable the instructions, as filed, were reduced to writing after the trial, with an eye to the objections then made, and with the special view of presenting them fairly. We may, I think, safely assume that much was said to the jury in elucidation of the points decided, not found here. It is, therefore, but doing justice all round, to confine the plaintiff in error to the exceptions taken when, familiar with the subject, his comprehension of the charge embraced everything of which he thought there was any shadow of reason to complain.

Looking to the record alone, it is not very easy to ascertain what use the defendant below attempted to make of Kreider's possession. No written proposition was submitted in connexion with it, upon which the opinion of the court was asked. Taking the language of the charge, I should incline to think the effort was to tack together the possession of the defendant and that asserted in Kreider, and thus to eke out a holding for twenty-one years, adverse to the title of the plaintiff. But as the defendant does not claim under Kreider — each, in fact, standing to the other in the relation of an utter stranger — the effort necessarily failed for want of continuity. If such was the aspect the defence assumed — and we have the word of the plaintiff in error, that this was the view of it taken by the judge — the instruction that the defendant could not avail himself of any claim or title that might have resided in Kreider, is correct. Indeed, this is not now controverted. We might, therefore, assume, there is no fault...