Craft v. Yeaney , 66 Pa. 210 ( 1870 )

The opinion of the court was delivered, November 7th 1870, by

Thompson, C. J.

— The subject-matter of the 1st assignment of error on this record, has long been settled in this Commonwealth, and is not now an open question, namely: that calls in a deed are always liable to be controlled by lines on the ground. I regard this as a rule well nigh, if not entirely, without exception : Younkin v. Cowan, 10 Casey 198; Bellas v. Cleaver, 4 Wright 260; Boynton v. Urian, 5 P. E. Smith T42; Darrah & Carrier v. Bryant, 6 Id. 69, and' Brolaskey v. McLain, 11 Id. 146. These are recent cases, and at hand, but they follow in a long line of precedents from the earliest times in this state. When, therefore, the leaimed judge asserted the doctrine, and applied it to the evidence, he committed no error abstractly, nor in its application to the case. The great question in the case was whether or not an east line had been run and marked as and for the eastern boundary of subdivision No. 7 of tract No. 4019, and whether the defendant’s grantor had purchased by it. That it had been, there is not a doubt. It is proved by Elijah Heath; and the age of the line conclusively proves its existence before or at least contemporaneously with Mrs. Scott’s purchase. It was by this line also that the conveyance was made, for there was no tract line on the ground at that time. The eastern boundary of the tract was actually run between its corners fifteen years thereafter. If therefore a line was on the ground as the east boundary of subdivision No. 7 in 1854 or 1855, it was incontestably not the line of the east boundary of the tract, for, as just said, it was not then run and was 200 perches further east than the eastern boundary of the subdivision. No doubt Mr. Heath thought he was running this eastern boundary on the line of the entire tract. This was a clear mistake, but one which did not in the least injure his grantee or those claiming under her. They got all the land they bargained for, within a slight fraction, and they were offered compensation for the deficiency, but declined receiving it. But even this deficiency was not occasioned by the location of the east line. It was in other lines of the subdivisions. The questions of the running the east line of subdivision No. 7, and where it was, and whether the conveyance by Heath was by it, were properly submitted to the jury, and were found in favor of the plaintiffs below, and this was a substantial finding of the case for them; the trespass sued for being undeniedly between that line and the eastern boundary of the entire tract, the title, to which was in the plaintiffs derived through and from Elliott. There was nothing wrong in any portion of the errors assigned on this part of the case, and this we think disposes of all but the 2d assignment of error.

This error assumes to raise a question of inability on part of the plaintiffs below, to recover, for want of possession at the institution of the suit. The ground is technical, and arises in this wise. Elijah Heath, under whom they claim, it seems, brought ejectment for this land against Jacob Craft, under whom the defendants claim, to September Term 1864. Afterwards the suit was marked to the use of John Heath, to whom the land in controversy had been in the mean time conveyed by Elijah, and it was prosecuted to trial and verdict in December 1862 by the latter. No judgment was entered on this verdict until 1869, long after the plaintiffs had by agreement purchased from John Heath. The plaintiffs in error now claim that this action of trespass cannot be maintained because no habere facias possessionem ever issued to give them legal seisin of what they admitted themselves dispossessed in bringing their ejectment, and which the ejectment also admitted the defendants to be in possession of. The testimony is uncontradicted that actual possession of this land was ever in anybody, taking the line of subdivision No. 7 as excluding it, which the jury have found, consequently a habere facias would have been idle. There was nobody to turn out, and nobody to hinder the plaintiffs from going in. This being so, the constructive possession incident to title still existed, there being no actual possession to challenge it; so that the plaintiffs’ title being unchallenged in this respect, drew the constructive possession of the land to it, and the right to sue was not affected by this technical claim of possession, contradicted as it was by the fact as shown by all the testimony on the point. The case of Caldwell v. Walters, 10 Harris 380, differs much from this. There an actual possession existed, and it was held that an action for mesne profits would not lie, because possession had not been delivered to the plaintiffs in ejectment. But the learned judge, Black, C. J., who delivered the opinion of the court, concedes that a habere facias is not indispensable in all cases, such as where possession is peaceably surrendered without it. There is but little difference between that, and a case where possession was not attempted to be continued after verdict. This, however, was not an action for mesne profits. It was for an independent trespass committed on the land long after the verdict, and after the purchase by the plaintiffs, and-the assessment and payment of the taxes on it by them. There was no error in the ruling of the court on this point.

The judgment is therefore affirmed.