Behrens v. Mountz

37 Pa. Super. 326, 1908 Pa. Super. LEXIS 285

• Court: Superior Court of Pennsylvania
• Decided: October 12, 1908
• Docket: Appeal, No. 19
• Status: Published

Opinion

Opinion by

Porter, J.,

This is an action of trespass for damages resulting from an unlawful eviction. Esther Nunemaker died on March 3, 1899, intestate, seized of a small farm in Frankfort township, Cumberland county, and leaving to survive her as sole heirs at law her husband, John Nunemaker, and two daughters, Mary Nunemaker and Elizabeth, married to Frederick Behrens. John Nunemaker took possession of the farm as tenant by the curtesy, and on March 29, 1899, leased a part of the farm to Frederick and Elizabeth J. Behrens, the plaintiffs and appellants in this case, who took possession under the said lease. Subsequently,, on June 26, 1899, John Nunemaker conveyed his estate by the curtesy in said farm to his two daughters, Elizabeth Behrens and Mary Nunemaker, the deed being delivered to the grantees about two days after that time, and being subsequently recorded. After the delivery of said deed the plaintiffs continued in possession of the whole farm, holding under the deed instead of under the lease. On January 20, 1900, John Nunemaker obtained letters of administration on the estate of Esther Nunemaker, and, on February 5, 1900, secured from the orphans’ court of Cumberland county an order for the sale of the said farm for payment of the debts of the said decedent. This order of sale having subsequently been modified and continued, the administrator sold the farm, on October 27, 1900, to John J. Mountz, the defendant and appellee, for the sum of $672, of which amount the defendant paid ten per cent on the day of sale and forty per cent additional on December 11, 1900; the sale was confirmed on November 26, 1900, and the remaining one-half of said purchase money was, according to the terms of sale, to be paid on April 1, 1901. Mountz, the purchaser and the defendant in this action, made no further payment on account of the purchase money until September 21, 1901, on which day he paid the balance of the purchase money and Nunemaker, the administrator, delivered to him a deed for the farm. Mountz, on or about December 15, 1900, notified Mrs. Behrens to leave the farm and surrender possession toNim within ninety days from that date, and G. E. Mills, Esq., attorney for John Nunemaker, the administrator, also gave her notice to quit by the middle of March, 1901. Mrs. Behrens refused to surrender possession as thus required, and remained in possession. Mountz, on June 21, 1901, while half of the purchase money still remained unpaid, began a proceeding, presumably under the Act of April 9, 1849, P. L. 524, against Frederick Behrens and Elizabeth Behrens, his wife, to obtain possession of the farm. The proceedings were had before a single justice who fixed the date for the hearing seven days after the issuance of the summons, and, after a continuance, the case was heard in the absence of the defendants before the one justice and a jury of six men. Judgment was entered against the defendants in that action on July 3, 1901, and on the same day a writ of possession was delivered by the justice to the sheriff. On July 3, 1901, the sheriff with his deputy and with J. J. Mountz, this defendant, and several members of the family of the defendant went to the house occupied by the appellants and, in the absence of Frederick Behrens, forcibly evicted Elizabeth Behrens and her children and removed all the furniture, bedding, provisions, etc., of plaintiffs and deposited them along the side of the public road. Mountz brought his household goods with him at the time, ready to take possession as soon as the plaintiff’s household goods had been removed from the domicile, and at once moved in with his family and has since that time retained possession of the farm. The plaintiffs brought this action for damages alleged to have resulted from an unlawful eviction and under the instructions of the court recovered nominal damages in the court below and now appeal.

The first specification of error refers to a remark made by counsel for the appellee, when cross-examining Elizabeth Behrens at the trial in the court below. The remark was a flagrant violation of the principles which in every court ought to control the orderly administration of justice, it was likewise an abuse of that advantage which counsel, as an officer of the court, has over the witness who is under examination. The remark was however at once withdrawn upon objection being made and the court instructed the jury that they must not regard it. The nature of the remark was such that the necessity for the withdrawal of a juror and continuance of the cause was one of those matters in which much must necessarily be left to the discretion of the court below: Moore v. Neubert, 21 Pa. Superior Ct. 144; Dougherty v. Railways Company, 213 Pa. 346; Commonwealth v. Greason, 204 Pa. 64. The question is a very close one but we do not feel warranted in convicting the court below of an abuse of discretion and the specification is dismissed.

The second specification of error refers to the admission in evidence of copies of the notices to quit alleged to have been served by the defendant upon the plaintiffs, without notice having been given to produce the notices actually served. The' papers offered in evidence and those which had been delivered to the plaintiffs were contemporary writings, the counterparts of each other, one of which was delivered and the other preserved; they may both be considered as originals and the one which was preserved may be received in evidence without notice to produce the one which was delivered: Eisenhart v. Slaymaker, 14 S. & R. 153; Cole v. Ellwood Power Co., 216 Pa. 283. This specification of error is not sustained.

The third specification of error refers to the testimony of J. B. Martin, the justice of the peace before whom the defendant, Mountz, instituted the possessory action, under the pretended forms of which the plaintiffs were evicted. This testimony was to the effect that Mountz himself had made the complaint, but that it was done at the instance of Nunemaker, the administrator who had made the sale of the land by direction of the orphan’s court. This testimony did not in itself work any injury to plaintiff’s cause, for Mountz himself remained liable for all the damages, if any resulted from an unlawful trespass, even although there might have been other persons who would have been liable also if they had been joined as defendants in this action. This assignment is, for this reason, not sustained. The effect which the learned judge of the court below gave to this evidence in his charge is, however, an entirely different matter.

We are of opinion that the court below erred in admitting in evidence the letters alleged to have been written by Mrs. Behrens to G. E. Mills, Esq., who was the attorney representing Nunemalcer, the administrator. The letters were offered “ for the purpose of showing that Mrs. Behrens did not claim to be the owner of the property, but was only endeavoring to receive money from the administrator.” The letters did not show that Mrs. Behrens did not claim to be the owner of the property. The cases are not many in which the actual owner of property would not agree to move out upon the payment of a sufficient sum of money, the amount is usually the only matter with regard to which there is any difficulty in effecting an arrangement. The letters did indicate a willingness upon her part to move out in case she was paid a sufficient sum of money to recompense her for doing so, but in none of them is there any intimation that she did not assert that she had the right to remain. These letters were immaterial to the issue being tried. Mrs. Behrens having denied that she had written them, it was not competent for the defendant to produce evidence contradicting her on that immaterial matter. The evidence contradicting her on that immaterial question having been improperly admitted, it was error for the court in charging the jury to say: "If you, therefore, find that Mrs. Behrens wilfully perjured herself, by the denial of the letters alleged to have been written by herself and offered in evidence, then this would properly' tend to discredit her claim and justify the conclusion that her testimony should be disregarded.” The fourth and thirteenth specifications of error are sustained.

The facts as set forth in plaintiffs’ fourth point were undisputed, the defendant himself had admitted them to be true in his testimony, the plaintiffs were entitled to an unqualified affirmance of the legal conclusions arising from these facts, and for the court to qualify the affirmance was error: Citizens’ Passengers Railway Co. v. Ketcham, 122 Pa. 228; Lingle v. Scranton Ry. Co., 214 Pa. 500. The court affirmed the point but added: “ if you find that defendant participated as set forth in this point. The defendant denies that he did anything except to aid in carrying out a chaff bed, at the request of the sheriff.” In thus qualifying the point the court inadvertently misstated the testimony. The defendant admitted that he made the complaint before the justice of the peace upon which the whole proceeding was founded. He admitted that he had brought his household goods there in company with the sheriff for the purpose of taking possession and that he did take possession of the house as soon as the goods of the plaintiffs were thrown but. He did not, as stated by the court, deny that, he did anything except to aid in carrying out a chaff bed. It was the father of the defendant who had testified as to what he himself did, who had given this account of his participation in the proceeding. The defendant had in his testimony admitted that he helped to carry out the goods and put them along the road, alleging that he had been deputized by the sheriff to help. He admitted that, after the plaintiffs were evicted, he had used the sweet corn, the vegetables growing in the garden and the hay in the fields, some of which had been actually cut by the plaintiffs. The fifth specification of error is sustained.

The learned judge in charging the jury said: “These proceedings were begun in the name of J. J. Mountz, who states that he did so at the instance of John Nunemaker, the administrator, and for the latter, and Justice Martin supports him in this declaration.” This language of the charge if it stood alone might not have been objectonable, but taken in connection with the language used by the learned judge in qualifying the fourth point submitted by the plaintiffs, and the oral charge as a whole, it must have left upon the minds of the jury the impression that John Nunemaker was the person who was responsible for the eviction and not this defendant. The tendency of the whole charge was to lead the jury to the conclusion that this defendant was only nominally connected with the proceeding. That this defendant is responsible for any damages suffered, if the eviction was unlawful, is too clear for argument, he having made the complaint which originated the proceeding and having aided in the actual physical execution of the writ of possession: McCarthy v. DeArmit, 99 Pa. 63. The seventh specification of error is sustained. The learned court fell into error in stating: “Mr. Nunemaker testified to the payment of money to his daughter, Mrs. Behrens, the present plaintiff, under an agreement with her attorney Leidich.” The witness did not so testify and the eighth specification of error is sustained.

The learned judge charged the jury as follows: “The title of Mrs. Behrens to the land, as an heir, and grantee of her father, had been divested by the orphan’s court sale, and it was her duty to remove therefrom.” The learned judge evidently fell into the error of holding that the confirmation of the sale by the orphan’s court divested the title of the heir. “It is well settled that an orphan’s court sale does not divest the title of the heirs until after the confirmation thereof and conveyance delivered under the order of the court. . . . The sale, even after confirmation, does not divest the title of the heirs of the decedent for it remains in the power of the court until a deed has been executed and delivered. Until then the heirs’ right to maintain ejectment, even against the purchaser has not gone. . . . Until then no conversion takes place, and if the heir of the decedent dies even subsequently to the confirmation of the report of sale but before the deed is delivered, his interest descends as land not as money:” Greenough v. Small, 137 Pa. 132. The confirmation by the orphans’ court of a sale of real estate by an executor made in pursuance of his authority, is not complete until the purchase money be paid and a deed delivered. A sale and confirmation alone does not divest the title of the heir: Leshey v. Gardner, 3 W. & S. 314. Upon a sale of real estate of an intestate by an order of the orphans’ court for the payment of debts, the title remains in the heir until the contract of sale be executed by the payment of the purchase money and delivery of the deed: Erb v. Erb, 9 W. & S. 147; Biggert’s Estate, 20 Pa. 17; Schmid’s Estate, Dunlap’s Appeal, 182 Pa. 267. The defendant did not acquire title to the land until the day when he paid the balance of the purchase money and received his deed on September 21,1901, more than two months after he had forcibly evicted these plaintiffs. The ninth specification of error is sustained.

■ The proceeding to obtain possession under which the defendant acted, having been instituted before a single justice of the peace, was void for want of jurisdiction: Merritt v. Whitlock, 200 Pa. 50; Sperry v. Seidel, 218 Pa. 16. The eviction of the plaintiffs was, therefore, illegal and this defendant, who instituted the action and assisted in the dispossession, is liable for damages in an action of trespass. The dispossession was without any legal process to justify it, the manner of the dispossession therefore was no protection to the defendant against this action; it was not incumbent on the plaintiffs to reverse the judgment which the justice of the peace had no jurisdiction to enter. The title and right of possession was at' the time of the eviction in the plaintiffs and not in the defendant, the eviction was therefore unlawful, not only because the process was void but because the defendant had no right to possession. The defendant turned the plaintiffs out under a void legal process at a time when he had no right to turn them out even if he had proceeded in a regular legal manner. The general rule is that a man is answerable for the consequences of his fault which are natural and probable, such as reasonable forecast and prudence might have foreseen: Scott v. Hunter, 46 Pa. 192; McGrew v. Stone, 53 Pa. 436; West Mahanoy Township v. Watson, 116 Pa. 344. The damages in the present case were not to be measured by the benefits accruing to the defendant, but by the injuries sustained by the plaintiffs. If there were upon the land from which the plaintiffs were evicted fruits and vegetables which were about to ripen and crops which were matured or were about to mature, and which did ripen and mature prior to September 21,1901, when the title passed to the defendant, and if the plaintiffs were by the eviction deprived of the opportunity to gather those fruits and crops, then they were in this action entitled to recover the value thereof. If there were sweet corn, beans and other vegetables growing in the garden which were ready for present use or which the evidence established would have been ready for use prior to the time defendant actually acquired title to the land, the plaintiffs were entitled to compensation for the loss of such vegetables. If the furniture of the plaintiffs was thrown out of the house while it was raining, or when the weather conditions were such that they ought to have foreseen that it was about to rain, and if it was actually injured by the rain, the defendant is just as responsible for that injury as if he had thrown the furniture into the water. The tenth, eleventh and fourteenth specifications of error are sustained.

The judgment is reversed and a venire facias de novo awarded.