McKinney v. Russell
McKinney v. Russell
Opinion of the Court
Opinion by
This is an appeal from an order directing an alias writ of habere facias possessionem to be issued against W. G. Russell. The writ contained instructions to the sheriff to eject the defendant and his entire family, including his wife, Clara W. Russell, from the possession of the land described in the petition for the writ: Johnston v. Fullerton, 44 Pa. 466. Clara Russell in 1888 purchased from Mary Wick a piece of land in West Sunbury, Butler County. McKinney, the plaintiff, owned land which he claimed adjoined the Russell lot. W. G. Russell, believing that there was land between his wife’s lot and the McKinney land, obtained a deed for this supposed unoccupied land, and went into possession of it. McKinney instituted this action of ejectment to' determine the title to this land. On October 12, 1912, a verdict was found in McKinney’s favor for the land as described in the writ. On April 5, 1915, the verdict, which read in part, “on the west by the eastern boundary line of the Borough of West Sunbury,” was amended to read, “on the west ......by land of Mrs. Clara Russell, her eastern line being the eastern line of the Borough of West Sunbury,” and as amended the judgment was then entered. An appeal was taken to this court, on which a judgment of non-pros was duly certified June 5,1916. This writ of habere facias possessionem was awarded August 16,1916.
It is the contention of Clara Russell that the verdict as amended contained a description which materially affected her property right in land purchased from Mary Wick, not embraced in the ejectment proceeding, and
There is but one slight occupancy of the wife under the Wick deed which might be said to conflict with the property described in the writ. A coal house was built partly on this ground, but such occupancy, under her husband’s title, could not be tied to her after-acquired title so that it might be said she was in possession of the land before the institution of the ejectment. We therefore sustain the order of the court below; the habere facias to be executed as to Clara Russell only as to the lands described in the writ of ejectment.
Order affirmed.
Reference
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- Ejectment — Lands within writ — Execution—Parties — Husband and wife. Where an action of ejectment has been successfully prosecuted against a husband for a strip of land lying between the plaintiff’s land and that of the wife of the defendant, and the verdict is amended without notice to the wife so as to call for the wife’s line as a boundary, instead of a borough line, mentioned in the writ, and thereafter the wife buys an outstanding interest in the land involved in the ejectment with full knowledge of the ejectment, the wife cannot object to a writ of habere facias possessionem issuing against her as well as her husband. In such a case the plaintiff is entitled to all the land included in the writ of ejectment. If some of the wife’s own land is included she has her remedy by an ejectment against the plaintiff. If the outstanding title which she bought in, is good, she must establish it in another proceeding. The fact that a small coal house was built on the land covered hy the writ and occupied by the wife, is immaterial, inasmuch as such occupancy under her husband’s title cannot be tied to her after-acquired title so that it might be said that she was in possession of the land before the institution of the ejectment. A judgment in ejectment does not bind one who does not hold possession under the defendant and is not a party to the judgment.