Savage v. King

9 Pa. D. & C. 638, 1927 Pa. Dist. & Cnty. Dec. LEXIS 117

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: August 17, 1927
• Docket: No. 16777
• Status: Published

Opinion

Martin, P. J.,

Plaintiffs filed a declaration in this action o ejectment setting forth their title by a deed of conveyance from a forme owner of the property, accompanied by an assignment of a lease of the prem ises to a “Harry B. Nelson” as tenant.

It is averred in the declaration that the defendant “Nelson King” wrong fully occupies the premises, and claims possession under a lease, a copy o which is attached to the declaration, and the copy is of a lease from M. Claj ton Thrush, who was a former owner of the premises, to “Harry B. Nelson.

There is nothing, except the averment in the declaration, to connect th defendant with the lease made to “Harry B. Nelson.”

Procedure in ejectment is regulated by the Act of June 12, 1919, P. L. 47Í and requires the defendant, in addition to the plea of not guilty, to file a answer in the nature of a special plea, in which he shall set forth his ground of defence with an abstract of the title by which he claims.

Instead of pursuing the directions of the act of assembly, defendant filed paper which he described as “answer in the nature of a special plea i demurrer,” averring that the lease attached to the declaration shows that : was made with “Harry B. Nelson,” and there is no averment that any person jy the name of “Nelson King” ever occupied or claimed possession of the premises; and that the lease shows on its face that plaintiffs are not entitled ;o possession until 1934. It is further averred that, on May 13, 1926, plain-;iffs filed an amicable action in ejectment to recover possession of the prem-ses under the lease, a copy of which is attached to the declaration, and that lefendant entered a rule to show cause why the judgment should not be >pened to let him into a defence, depositions were taken, and, after argument, he rule was made absolute; and that all matters raised in this suit of eject-nent have been decided in favor of defendant.

The “answer in the nature of a special plea” filed by defendant is neither a lemurrer, a plea nor an answer in the form required by the act of assembly.

The declaration establishes a •prima facie right of plaintiffs to possession if the property, and shows that defendant claims possession under a lease to vhich he is not a party.

If defendant desires to demur to the declaration, he should raise questions if law only, and not put in issue matters of fact.

Defendant has not waived any legal defence he may have by including maters of fact in the demurrer: Jackson v. Myers, 260 Pa. 488.

And now, to wit, Aug. 17, 1927, the answer filed in this case in the nature f a special plea in ejectment is not sustained. Defendant is allowed' fifteen lays to file an answer to the declaration, setting forth his grounds of defence rith an abstract of the title by which he claims.