Sopp v. Winpenny

• Decision Date: 08 May 1871
• Citation: 68 Pa. 78
• Parties: Sopp <I>et al. versus</I> Winpenny.
• Court: Pennsylvania Supreme Court

68 Pa. 78

Sopp et al. versus Winpenny.

Supreme Court of Pennsylvania.

March 2, 1871.

May 8, 1871.

March 2d 1871.

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

Error to the District Court of Philadelphia: No. 302, to January Term 1870 J. G. Leach (with whom was B. Woodward), for plaintiff in error.—The plaintiff must prove the length of time the defendants have been in actual possession: Adams on Ejectment 458; West v. Hughes, 1 Harr. & Johns. 574; Hare v. Fury, 3 Yeates 13; Poindexter v. Cherry, 4 Yerger 305.

R. P. White (with whom was G. H. Earle), for defendant in error.—The judgment in ejectment was conclusive as to mesne profits from its commencement until possession under the habere: Osbourn v. Osbourn, 11 S. & R. 55; Drexel v. Man, 2 Barr 271. Born's possession was Sopp's: Doe v. Harlow, 2 M. & Rob. 40. These assignments of error go only to the judgment against Sopp; it may be reversed as to him and affirmed as to the rest: McCanna v. Johnston, 7 Harris 434.

The opinion of the court was delivered, May 8th 1871, by AGNEW, J.

The first assignment of error needs no notice. If at all competent the offer was made out of order. The 2d, 3d, 4th and 5th assignments raise a single question upon the conclusive effect of the action of ejectment, the record of which was given in evidence. This was an action for mesne profits, and the defendant, Sopp, offered to show that he was not in possession after the bringing of the ejectment; but the court below held that his possession was one of the questions in that suit, and that it settled that all the defendants were in possession from the 29th of June 1865, the date of the issuing of the writ, until the 10th of February 1867, when possession was delivered to the plaintiff upon the writ of habere facias possessionem, and that they were all liable for the mesne profits during that period. This was an error. The ejectment is conclusive evidence that Sopp was in possession when the writ was served on him, but only primâ facie evidence that he continued therein until the delivery of the premises to the plaintiff. It is well settled that the verdict and judgment in ejectment are conclusive of the plaintiff's right of possession, and his right to the mesne profits between the bringing of the ejectment and the delivery of the possession under the habere facias possessionem. During this interval his right cannot be questioned: Postens v. Postens, 3 W. & S. 182; Drexel v. Man, 2 Barr 271; Man Jr. v. Drexel, 2 Barr 202; Osbourn v. Osbourn, 11 S. & R. 55; Huston v. Wickersham, 2 W. & S. 313; Tillinghast's Adams on Ejectment, ed. 1840, pp. 388, 389. But the defendant's continuance in possession after service of the writ stands on a different footing, and neither on principle nor authority will he be prevented from showing that he had left the possession, or was not in it after service. The trial of an ejectment...