Lehman et al. versus Kellerman

Supreme Court of Pennsylvania1870-05-12No. No. 38

65 Pa. 489

Summary · law.co

Holding. The judgment is affirmed. A defendant in replevin cannot defend by asserting superior title to the land when the plaintiff holds actual adverse possession and title is genuinely contested; the defendant must instead pursue ejectment.

In a replevin action for grain that defendants cut and carried away from plaintiff's field, the central issue was whether defendants could defend by asserting superior title to the land itself. The court determined that when a plaintiff holds actual, peaceable possession of property and the defendant's claim rests on a competing but disputed title, the defendant cannot raise that title defense in a replevin action. Instead, the defendant must pursue a separate ejectment action to establish superior ownership. The court reconciled prior case law by distinguishing situations where title is genuinely contested from those where no real dispute exists.

Although the trial judge permitted the defendants to present their title defense—an error in law—the jury ultimately ruled in favor of the plaintiff anyway. Because the defendants received the judgment they would have received had the defense been properly excluded, they suffered no prejudice and cannot complain of the judicial error.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a replevin defendant may raise a competing title defense to the land
Effect of plaintiff's actual adverse possession on availability of title defense
Proper remedy when disputed land title is the real issue in dispute
Whether erroneous admission of title defense requires reversal when plaintiff prevails anyway

Procedural posture

The defendants appealed from a jury verdict in plaintiff's favor in a replevin action for grain harvested from disputed land.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

It is error to nonsuit a plaintiff who has presented a case sufficient to go to the jury; but is not error to refuse a nonsuit; for when the defendant has given his evidence, he has it still in his power to ask the court to instruct the jury upon the insufficiency of the plaintiff’s evidence to maintain the action.

All the other assignments stand upon a single ground, the right of the defendants to try the title to the locus in quo in an action of replevin for the grain cut and carried away by them. The judge said in his charge (and this is not excepted to as being contrary to the evidence), “ that the plaintiff had possession of the fields and sowed the grain, and that the defendants cut and carried it away, are admitted facts.” An examination of the testimony shows also that the fact of the plaintiff’s actual possession was not rebutted; and that Kellerman, as the tenant of Josiah Miller, had been in possession for several years of the field in which the grain grew, and ploughed it and sowed the crop which the defendants took off. It was a clear case of an adverse and disputed title ; Lehman claiming the field under a warrant and survey in the name of Kensey Daniels, and Miller claiming it under a warrant and survey for Marcus Metzgar ; the question being as to the location of the lines upon these warrants. ■ The plaintiff having the actual adverse possession, according to the principles stated and authorities cited in Powell v. Smith, 2 Watts 126, the defendants could not defend on their alleged better title, in the action of replevin brought for the grain, but must be driven to an action of ejectment and for the mesne profits. The actual possession of the plaintiff operates as a disseisin and turns the true owner over to his action to dispossess the disseisor: Altemose v. Huffsmith, 9 Wright 128, 9; Hoey v. Furman, 1 Barr 300. The chief difficulty is to reconcile some of the decisions heretofore made. Thus in Elliott v. Powell, 10 Watts 453, it was held that a defendant in replevin for a crop of grain cut and carried avray by him, might set up his title to the locus in quo, on the principle that his right of entry justified his entry- and taking the profits of the soil which was his. But the case is not fully reported, and, taken in the full extent of the principle stated in the opinion, would conflict with subsequent as well as previous decisions. Although the plaintiff in that case was in the actual possession and sowed the grain, it does not appear that he did so under an adverse title, while the opinion of Justice Rogers proceeds evidently on the ground that there was no contested, title and the defendant had an immediate right of entry, which he exercised, and thereby put himself into actual possession before the cutting of the grain. Unless this be the fact it is inconsistent with his own opinion in Harlan v. Harlan, 3 Harris 507, in which he several, times refers to Elliott v. Powell, without apparently supposing there is any inconsistency, and takes precisely the distinction here stated in the following clear terms: “ Although the actual possession is in the defendants, yet there is, in the sense attached to it, in the cases cited, no adverse holding, nor the semblance of a contest of title. The title never has nor ever can be disputed by them. The mere assertion of title would be nothing. The court looks to the substance ; and when it appears that in truth it is a trial of title, then it is properly ruled that replevin is not the proper action, but that it must be tried in another form. Beyond, the cases do not go, nor does public policy require they should.” See the cases collected in Brewer v. Fleming, 1 P. F. Smith 115. Applying these principles, stated by Judge Rogers, to the present case, it is evident the whole defence was inadmissible; as it was a contest of title between two warrants and surveys, as to which covered the ground in controversy. The plaintiff having been in the clear, peaceable and undisturbed possession and sowed the grain, the court should have ruled out the defence, and sent the defendants to their remedy by ejectment, and a recovery of the mesne profits. But the verdict having been given to the plaintiff, the result is the same as if the defence had been ruled out, and it is not for the defendants to complain of this error. The judgment is therefore affirmed.