Miller v. Bealer , 100 Pa. 583 ( 1882 )

Mr. Justice Trunkey

delivered the opinion of the court, May 16th 1882.

When the defendant moves for a nonsuit, the plaintiff’s-evidence must be taken to be true, and every reasonable inference of fact, which a jury might draw from it in favor of the plaintiff, must be drawn by the judge : Smyth v. Craig, 3 W. & S. 14. In effect, the motion is a demurrer to evidence, except that judgment cannot be entered for the plaintiff, and the defendant is considered as admitting every fact which the evidence tends to prove : Bevan v. Insurance Co. 9 W. & S. 187.

In 1871, Mrs. Bealer was living on the property in controversy, which then belonged to White. Miller gave her money at different times, amounting to $1,635. He and Mrs. Bealer agreed to buy the property from White, she to make the purchase, he to give her the money, and the deeds to be made in his name. One deed was executed on April 23d, 1872, the other on April 22d, 1873. He first learned that the deeds were not made to himself when he received the deeds, and he received neither till in August, 1873. The suit for one lot was brought on the 17th of June, 1878, and the plaintiff was allowed to amend the description on October 24th, 1881, so as to include the other lot. As the ease comes, these are admitted facts.

In view of such a case, the able counsel for the defendants do not deny the plaintiff’s title to the lots, unless he is barred from maintaining an action by the Act of April 22d, 1856, which limits the time for bringing suit to enforce a resulting trust. They allege the act is a bar to a suit for the lot which was not included in the praecipe and writ. Their argument is, that the nonsuit was rightly ordered because of the amended description The parties agree that the nonsuit was moved and ordered on that ground.

In Santee v. Keister, 6 Binn. 36, it was decided that the plaintiff, in ejectment, ma}r recover part of the land for which the suit was brought; and that has been an accepted rule in practice ever since. Had both lots been included in the praecipe and writ, and the evidence showed the plaintiff’s right to only one, he would have been entitled to a verdict for that lot. His right to recover the lot, which was described in the writ, was the same after the amendment as before. His case, as respects that lot, was not prejudiced in the least by including another in the description. If the amendment was properly allowed, the title and right of possession to each lot would remain as at the date of the allowance. Whether it was rightly allowed, is not now the question; but it could not be permitted to the injury of the defendants, in depriving them of the benefits of the statute of limitation. Conceding that the amendment was right, then the limitation of the Act of 1856 would defeat recovery of the lot thereby included, if the time had expired before the date of the amendment, but after the beginning of the suit, just as it would if both were included in a writ issued at a time when the statute would bar recovery of one and not the other.

Judgment reversed, and procedendo awarded.