Harold S. Hampson, Warren, for appellants.
John H. Stewart, Warren, and Thomas E. Doyle, Erie, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Wright, JJ.
[ 173 Pa. Super. Page 576]
Plaintiffs, asserting title to 57 1/2 acres of Lot 669 in Cherry Grove Township, Warren County, brought this action in ejectment complaining that the defendants were wrongfully in possession of 8 acres within the boundaries of the above tract.
Plaintiffs claimed under a paper title and the defendants under a tax sale and county treasurer's deed. In a former appeal of this case (165 Pa. Super. 193, 67 A.2d 814) it was decided that the common source of title was Anna Deshner Hackathorne. Devisees under her will conveyed the tract, including the 8 acres here in dispute to O. M. Borden by deed dated September 28, 1937, and duly recorded. In the present trial there was evidence that Borden and his wife conveyed the whole tract to C. J. Cooper by deed dated July 22, 1938. The deed, as recorded, contains the name of Mary McBee as an additional grantee and in the court below it was conceded that her name had been inserted, after the delivery of the deed to Cooper by the Bordens. At the present trial this deed was excluded as evidence of title on the ground of a material alteration
[ 173 Pa. Super. Page 577]
after delivery. By deed dated November 20, 1940, C. J. Cooper and Mary McBee, then both single, conveyed the whole tract to E. H. Beshlin. The deed was not recorded until October 10, 1942 when, on that date, Beshlin and his wife deeded the tract of 57 1/2 acres to plaintiffs, husband and wife, by entireties.
The defendants proved a sale of 'Lot No. 669 and containing 57 1/2 acres' for unpaid county taxes assessed in the name of 'Anna Hackathorne Est.' and a conveyance to W. J. Knupp, by treasurer's deed dated September 4, 1939. Knupp on November 3, 1941 quitclaimed his interest in the land to C. J. Cooper by deed duly recorded. And by deed dated June 4, 1942, Cooper and his then wife (notwithstanding his prior conveyance with Mary McBee to E. H. Beshlin, above referred to) quitclaimed the eight acres of land here involved to the defendants. Upon these conveyances defendants rested their defense to plaintiffs' claim of title.
In the trial below the jury found in favor of the plaintiffs for the 8 acres of land described in their complaint. The verdict was based upon special findings of the jury from the evidence, in response to specific questions submitted to the jury by the trial judge, to this effect: O. M. Borden in July 1938 was in possession of the whole tract, including the disputed 8 acres of land, when he passed title to C. J. Cooper; so also C. J. Cooper was in possession of the same land on November 20, 1940 when he conveyed the tract (by deed in which Mary McBee joined as grantor) to E. H. Beshlin; prior to June 4, 1942, when C. J. Cooper and wife quitclaimed the 8 acres to the defendants, both of the defendants had knowledge of the existence of the deed from C. J. Cooper and Mary McBee to E. H. Beshlin, above referred to, dated November 20, 1940, although not recorded until October 10, 1942. Whether there is sufficient competent evidence of a transfer
[ 173 Pa. Super. Page 578]
of title by O. M. Borden to C. J. Cooper in 1938 is the principal question raised by defendants, in this appeal from the judgment entered on the verdict for the plaintiffs by the lower court. The case was well tried and was properly ...