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RICHARD J. FLICKINGER AND WILBERT D. CHRISNER v. ANNIE V. HUSTON (07/02/81)

filed: July 2, 1981.

RICHARD J. FLICKINGER AND WILBERT D. CHRISNER, JR., EXECUTORS OF THE ESTATE OF WILBERT DEAN CHRISNER, AND ROLAND T. KEDDIE AND SUZANNE M. KEDDIE, HIS WIFE, APPELLANTS,
v.
ANNIE V. HUSTON, HER HEIRS AND ASSIGNS, AND ALL OTHERS HAVING ANY RIGHT, TITLE OR INTEREST



No. 118 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Division, No. 7007 of 1978.

COUNSEL

Richard F. Flickinger, Ligonier, for appellants.

Joseph Bonidy, Greensburg, for appellee.

Price, Cavanaugh and Hoffman, JJ.

Author: Hoffman

[ 291 Pa. Super. Page 5]

Appellants contend that the lower court erroneously denied their claim of title to certain land by adverse possession. We disagree and, accordingly, affirm the order of the lower court.

[ 291 Pa. Super. Page 6]

Appellants are Richard J. Flickinger and Wilbert D. Chrisner, Jr., executors of the estate of Wilbert Dean Chrisner (Chrisner), and Roland T. and Suzanne M. Keddie, a married couple to whom Chrisner's executors conveyed a portion of the land in question. They commenced this action in 1978 by filing a complaint to quiet title to a thirty-eight-acre tract of land in Ligonier Township, Westmoreland County. The record reveals that none of the parties nor any of their predecessors have ever resided on the tract. Appellants trace their claim through Chrisner, whose interest in the land arose in 1943. The facts giving rise to this litigation may be summarized as follows. In 1922, John J. Will, then the record title holder of the tract, mortgaged the property to Annabelle Will. This mortgage was subsequently assigned to E. B. Shaffer in 1926. On December 1, 1927, John J. Will and his wife conveyed the entire tract to Annie V. Huston, the named defendant in the present case.*fn1 Subsequently, Shaffer foreclosed on the mortgage, and on May 5, 1933, after a sheriff's sale, the tract was conveyed to Shaffer by sheriff's deed. Shaffer conveyed the property to Chrisner's predecessor in title in 1935, and on June 9, 1943, Chrisner was granted the property. Chrisner died in 1976, still holding title dating back to the 1933 sheriff's deed to Shaffer. On July 5, 1978, the executors of Chrisner's estate conveyed a portion of the thirty-eight-acre tract to the Keddies. Sometime thereafter appellants discovered that the foreclosure proceedings through which Shaffer had acquired title in 1933 were defective in that Annie V. Huston, the record title holder at the time, had neither been notified of the proceedings nor had conveyed or released her interest in the property. Thus, in order to clear their title, appellants commenced this action against Annie V. Huston, her heirs and assigns, and all others having any interest in the tract. Appellants alleged in their complaint that by his acts of ownership and control from 1943 to 1976, Chrisner had

[ 291 Pa. Super. Page 7]

    acquired title to the tract by adverse possession. Service was effected by publication, and appellee Josephine Murphy subsequently filed an answer in which she averred that Annie V. Hutson was deceased and that she was Ms. Huston's daughter and only surviving heir. Appellee Murphy specifically denied appellants' claim of title by adverse possession, and the matter was tried before a court sitting without a jury. The court found appellants' evidence of adverse possession insufficient and entered an order dismissing their action. Following dismissal of exceptions and entry of a final order by the court en banc, appellants took this appeal.*fn2

"It is well settled that he who asserts title by adverse possession must prove it affirmatively." Robin v. Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932). "[O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years . . . . Each of these elements must exist, otherwise the possession will not confer title." Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted). See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa. Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa. Super. 155, 397 A.2d 793 (1978); Inn Le'Daerda, Inc. v. Davis, 241 Pa. Super. 150, 360 A.2d 209

[ 291 Pa. Super. Page 8]

(1976). "An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts . . . . He must keep his flag flying and present a hostile front to all adverse pretensions." Smith v. Peterman, supra, 263 Pa. Super. at 161, 397 A.2d at 796 (quotations ...


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