Moore v. Dixon , 94 Pa. 53 ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court,

Had the contract between Eleazer Carey and John Decker dated August 29th 1839, been offered in evidence without testimony to connect it with the locus in quo, its rejection would not have been error. But it was .offered in connection with evidence that John Decker held the land in dispute under the contract. This was sufficient to entitle the contract to go to the jury. If Decker actually held the land under this contract, it was competent evidence; its effect was for the jury and they'might infer a mistake in the warrantee name used therein. The objection that it should have been offered in chief was not well taken. The plaintiff showed title derived through Eleazer Carey. The' defendants set u'p title by possession, commencing with John Decker. To rebut this the plaintiff proposed to show that Decker’s possession was not adverse to plaintiff’s title, but on the contrary that his possession of the land in dispute was obtained by virtue of this contract with Carey, and that subsequently, Carey brought ejectment thereon against Decker and recovered, and issued a writ of habere facias possessionem; that to avoid being turned out, Decker leased the land in dispute, and on the 24th of August 1872, executed a writing under seal, intended to cover this land, and agreeing as tenant of Carey, to deliver up the possession thereof on the first of April ensuing. This evidence was strictly rebuttal.

There is nothing upon the record to show that the evidence .rejected by the court, and which forms the subject of the second assignment, was irrelevant. ' The description contained in the vena, ex. is not given, nor are we informed what land the sheriff’s deed embraced. We can guess, it is true, but that does not enable us to say the rejection of the offer was error.

Judgment reversed, and a venire facias de novo awarded.