Schrack v. Zubler

• Decision Date: 01 January 1859
• Citation: 34 Pa. 38
• Parties: Schrack versus Zubler.
• Court: Pennsylvania Supreme Court

34 Pa. 38

Schrack versus Zubler.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Clinton county.

COPYRIGHT MATERIAL OMITTED

Miller and Armstrong, for the plaintiff in error.

Linn and Hale, for the defendant in error.

The opinion of the court was delivered by THOMPSON, J.

The first bill of exceptions and the answer of the court to the defendant's 1st, 2d, and 3d points assigned for error, may be considered together. They involve the question, if question it may be considered, whether one who has neither right, title, interest, nor possession to land, either in his own right, or by virtue of an office as agent, trustee, executor, or administrator, can convey title. That there can be but one answer to such a proposition, is certain. He cannot. That John Wagner stood in any other or better relation to the interest of John Herring's heirs in the land claimed by their father, cannot be pretended. His deed to Leamy should therefore have been rejected. The instructions in regard to it were, of course, erroneous. The jury should have been told that it conveyed no title, and the defendant's points affirmed. It being but an improvement right, did not authorize a stranger to it to convey it. And certainly, the advice of the overseers of the poor was not potent enough to legalize the assumption. The silence of the heirs, merely, for the period of ten years, even if such were the fact, gave no room to raise the presumption of a precedent authority to sell their interest. Nor was their release or conveyance at the end of that period, any evidence from which to infer their assent. In fact, it was the contrary. The exercise of their right to convey or release to Zubler, was certainly inconsistent with an admission that they had previously conveyed. The contrary view taken by the court was also error.

The court also erred in charging that the possession of Leamy and Zubler, under the conveyance of Wagner, might be tacked to the possession of Herring, so as to give title by the statute of limitations. No doubt, a succession may be kept up by tacking possessions; but each succeeding occupant must show title under his predecessor, so as to preserve a unity of possession. If this were not so, the first intruder might abandon his intention of holding adversely and leave the possession, and a succeeding one might enter and claim, without authority, a quality in the predecessor's possession which he had abandoned. Zubler could only claim Herring's...