Appeal, No. 171, Jan. T., 1951, from order of Court of Common Pleas of Cumberland County, Sept. T., 1950, No. 186, in case of Herman F. Bookwalter and Ethyl S. Bookwalter v. George H. Stewart, Jr. and Alexander Stewart, Individually and as Trustee under the last Will and Testament of George H. Stewart, Deceased. Order affirmed.
Edwin D. Strite, with him E. M. Biddle, Jr., for appellant.
George Skinner Black, with him John D. Faller, Jr., for appellees.
Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
The question here is one of venue.
Plaintiffs brought an action of assumpsit in Cumberland County, alleging in their complaint that defendants, acting as trustees under a will, conveyed to them by deed in 1944 three certain tracts of land aggregating 208 acres, the larger portion of which was situated in Franklin County; that plaintiffs did not record this deed in Franklin County until 1950; that meanwhile, in 1945, defendants, as individuals, "fraudulently" conveyed a tract of 24 acres of this land, all of which was situated in Franklin County, to one Zeek, who purchased it for a valuable consideration and without knowledge or notice of plaintiffs' title; that Zeek
entered upon the tract and cut and removed therefrom valuable timber; accordingly plaintiffs demanded payment of the value of the land conveyed to Zeek or the damage done to it by the timbering operations. Defendants filed preliminary objections on the ground that the cause of action thus alleged was the "fraudulent" injury by the defendants to the land, and that therefore the action was local and beyond the jurisdiction of the Cumberland County court. The court overruled the objections; the defendants appeal.
Most of the argument of defendants is devoted to an attempt to establish that although plaintiffs' action is in form assumpsit it is essentially a claim in trespass for the damage done to the land. Plaintiffs, on the other hand, contend that the action is what it purports to be, namely for the breach of the covenant of special warranty contained in their deed. It is not necessary to discuss or decide the question thus raised. If the action be regarded as one of assumpsit based on the contractual relation between the parties it is transitory and could be brought wherever service could be had upon the defendants, since the common law deemed all actions ex contractu to be transitory in character regardless of the place where the contract was executed or where it was to be performed. But even if the action be regarded as one of trespass for damage to the land, and even though such an action would, at common law, have had to be brought in the county where the land lay (Oliphant v. Smith, 3 P. & W. 180; Magee v. Pennsylvania Schuylkill Valley R.R. Co., 13 Pa. Superior Ct. 187) 193), Pa. R.C.P. 1042 now provides that "The action [of trespass] may be brought in a county in which an action of assumpsit may be brought or as provided by an Act of Assembly." This rule clearly means that, just as in the case of assumpsit actions, an action of trespass may be brought in any county where the defendant can be served, or it may be brought, under
statutory provisions relating to certain cases, in the county where the ...