Kennedy against Skeer, 3 Watts 95

The opinion of the Court was delivered by Kennedy, J. The first error .assigned is, that the'court below were wrong in admitting the deed mentioned in the first bill of exceptions to be read in evidence. This was a deed of conveyance for the land in question, from Norbert Foltz to Charles Von Bonhurst. The objection to its being read in evidence to the jury was, that it was not shown and did not appear, that Norbert Follz had any right or interest whatever, either in law or in equity, to the land when he made the deed of conveyance, and that it was, therefore, inoperative and inadmissible.

It appears to me that this objection was well founded. In Peters et al. v. Condron, 2 Serg. & Rawle 84, it was held that a deed was not evidence unless it was first shown that the grantor possessed some interest, either in law or equity, in the matter in controversy; and this has been considered the settled rule on this subject ever since. Hook v. Long, 10 Serg. & Rawle 1. The second assignment of error is, that the court improperly admitted the letter, mentioned in the second bill of exceptions, to be read in evidence.

As this letter, or the con tenis of it, are not placed upon the record, or on our paper books, we cannot undertake to decide on its admissibility as evidence in this cause. The third error is, that the court were wrong in their answer to the defendant’s first point. The proposition contained in this point was, that as the plaintiff had shown that Michael Carrigan had the first title, and one that appeared to be paramount to every other, for the land in question, and had not given any evidence, even tending to show that he had acquired Carrigan’s right to the land, he was not entitled to recover it.

The court, however, seemed to think that this point had been decided against the defendant by this court, when this cause was before it on 'a former writ of error. In this I think there was a misapprehension on the part of the court below : for there is certainly no rule of law better established than that a plaintiff in an action of ejectment must recover entirely on the strength of his own title; and therefore if a better title than his be shown on the trial of the cause, cither by himself or the defendant, he must fail in his suit.

To this rule there are, to be sure, some exceptions.; as in the case of a lessor, who brings an action of ejectment against his lessee, after the expiration of the term mentioned in the lease, the lessee will not be permitted to set up a better title and one adverse to that of his lessor, in a third person; although he may show that his lessor has transferred his right to another, and therefore is notentitled to recover.

Neither wilLadefendant in a judgment, upon which land that he held by a bad title-has been regularly taken in execution and sold, be permitted to show a better title in a third person to defeat the purchaser in an action of ejectment brought against him to recover the possession of it. But there is nothing shown in the present case to take it out of the operation of the rule mentioned. I therefore think there was error in the answer of the court to the defendant’s first point. The fourth and last error assigned is, that the court erred in their answer to the defendant’s second point.

The defendant, by his second point, wished the court to charge the jury, that as the plaintiff appeared to have conveyed the land to Norbert Foltz, under whom the defendant claimed with a full knowledge of all the facts, he could not avail himself of a title acquired afterwards, to take away the land from those holding it under the conveyance previously made by him.

The court, however-, thought, under the particular circumstances of this case, that the plaintifTwas entitled to recover notwithstanding the deed of conveyance executed by him to Foltz. - If there had been nothing in the way of the plaintiff’s recovery but his deed of assignment transferring the interest he held in the land under the treasurer’s deed, and it had, as is alleged, contained nothing more than a bare assignment of his interest, whatever it might be, whether any thing or nothing, for we cannot judge of it as it has not been shown- to us, then the answer of the court, the treasurer’s deed being admitted to be invalid, might have been right.

But the plaintiff having shown an outstanding title in Carrigan, which was better than what he had shown in himself, the answer of the court to the defendant’s second point must be considered erroneous also, for the same reason that their answer given to the defendant’s first point is held to be so.

If, however, the plaintiff had shown on the trial, as his counsel alleged in the argument was the fact, that Foltz had, before he conveyed the land to Yon Bonhurst, purchased it from Carrigan, then the answer of the court would have been correct, provided the deed of assignment from the plaintiff to Foltz afterwards contained barely a transfer of his interest under the treasurer’s deed, whatever it might be, whether bad or good.

For the defendant could not claim more under the assignment by the plaintiff of the treasurer’s deed, than was thereby actually granted and intended to be so: and if by the terms of it nothing more than the interest acquired by the treasurer’s deed was intended to be conveyed or passed, the plaintiff would not be estopped from claiming the land under a better title subsequently acquired by him. I have thought it proper to notice the case under this aspect, as it may be that on the next trial the plaintiff may prove himself invested with Carrigan’s title. Judgment reversed, and a venire de novo awarded.