Lineberger v. Newkirk

36 A. 193, 179 Pa. 117, 1897 Pa. LEXIS 611

• Court: Supreme Court of Pennsylvania
• Decided: January 4, 1897
• Docket: Appeal, No. 5
• Status: Published

Opinion

Opinion by

Mr. Justice Green,

We cannot assent to the proposition that the plaintiff’s title to the land in dispute is derived through her father. She cannot be regarded, therefore, as claiming in privity with him, and hence the rejection of the offer of the record of the first ejectment was entirely correct. Her father’s interest was as tenant by the curtesy, and in any event terminated with his life. It was of course terminable at any time by a voluntary surrender to the tenant in reversion, and the release executed by him to his daughter was a merger of his life estate with the fee. The proposition that the first action was an equitable ejectment is equally untenable. The issues in the first ejectment were upon the signature of J. S. Newkirk to the deed in question and the condition of his mind at the time of the signature. These are plain ordinary issues at law. They involve the legal title under the deed, and they are properly to be determined by a jury, and not by the court. They do not involve equitable considerations or the determination of facts upon which an equitable title arises. As in our opinion it is very clear that the first action was not an equitable ejectment, it would not be conclusive against a second ejectment even if it were brought by the defendant in the first, and it could not, possibly, be conclusive against the plaintiff in the present case, who was neither a party to the first writ nor in privity with the defendant therein.

The assignments of error are dismissed.

Judgment affirmed.