Dudley v. Roiser

86 Pa. Super. 157, 1925 Pa. Super. LEXIS 77

• Court: Superior Court of Pennsylvania
• Decided: April 24, 1925
• Docket: Appeal 141
• Status: Published

Opinion

Opinion by

Henderson, J.,

For present purposes it is unnecessary to determine whether or not the two articles of ’agreement set forth in the plaintiff’s abstract of title and on which he undertakes to support his .action were properly recorded. It appears by reference to the pleadings that the execution and delivery of these agreements was not denied. The defendant has shown in the third paragraph of his plea that the title is an outstanding hostile title. There is no denial that the plaintiff has any rights which these agreements give him. They were competent evidence therefor in support of the plaintiff’s claim. The fact that they are referred to in the abstract of title as having been recorded in a certain volume of the books of record of the county was an immaterial averment. It does not appear from the issue raised in the pleadings that the recording of the instruments was a matter of any consequence. When therefore a nonsuit was granted on the ground that the allegata and probata did not agree, the learned trial judge overlooked the issue joined. It may be that the defense alleged is available, but under the pleadings the plaintiff was entitled to be heard as to the effect of the articles of agreement set forth in the abstract of title. The second agreement does not go to the plaintiff’s right. It is merely a modification of the terms of the agreement of the day before with respect to the time when the hand payments should be applied on the royalty charge. That the two contracts are to be read together and constitute the entire agreement seems clear. At any rate this is not disputed by the defendant. Moreover Rule 110 of the court of common pleas of the district provides that “in actions of ejectment, every material fact averred in the abstracts of title filed, shall be deemed, on the trial, to be competent evidence of the fact alleged, without further proof, and no evidence shall be admitted to support, contradict, qualify, explain, modify, or vary the same, unless directly and specifically traversed or denied by the adverse party.” As no attempt was made by the defendant in the plea to counteract the operation of this rule, we think the evidence offered was admissible and that the theory of discrepancy between the plaintiff’s claim and the proof offered is not applicable. It follows that the court was in error in granting the nonsuit 'and refusing to take off the same.

The judgment is therefore reversed with a venire de novo.