Argued March 14, 1927.
OPINION BY MR. JUSTICE WALLING, April 11, 1927:
This is an action of ejectment for an undivided one-half interest in a piece of land in the Borough of Punxsutawney, Jefferson County. In 1857, Sarah J. Miller, the then owner and common source of title devised the land to her three children, Virginia, Anna and Frank. Anna dying intestate and without issue, her interest became vested in Virginia and Frank, each of whom thereby became owner of an undivided one-half of the land. It is admitted that Virginia's one-half interest became and is vested in the defendants, while this suit involves the one-half interest formerly owned by Frank. This one-half he conveyed by warranty deed to his stepmother, Margaret J. Miller, in 1878; which deed, however, was not recorded until 1907. Meantime, in 1894, Frank's interest in this land was sold by the sheriff on execution issued upon a judgment obtained by the Mahoning Bank (subsequent to the conveyance above mentioned) and bought by its trustees. Whatever interest the bank acquired in the land was conveyed to Lyda P. Miller in 1903; and on the latter's death became vested in her daughter, the plaintiff. By the death of Margaret J. Miller, in 1917, her interest in the land became vested in her children, the defendants. On the pleadings the trial court entered judgment for plaintiff and defendants have appealed.
This action of the court was based on the untenable assumption that by moving for judgment on the pleadings, as defendants did, they admitted the truth of plaintiff's averments and the falsity of their own, so far as the latter were in conflict with the former. True, section 2 of the Act of May 8, 1901, P. L. 142, as amended by the Act of June 12, 1919, P. L. 478, provides: "That the court may, on rule, enter such judgment on the pleadings in favor of either party as it may appear to the court the party is entitled to." The court's assumption was right when passing upon the defendants' claim to judgment, but not for the entry of final judgment for plaintiff. The latter can be granted such affirmative relief only when his controlling averments are not denied. In other words, no matter who moves for judgment on the pleadings, neither is entitled thereto except where his necessary averments are not sufficiently denied. Refusal of summary judgment to one party is no ground for granting it to the other. This is not in all respects a demurrer and a party whose averments present a good cause of action cannot be put out of court merely by an unsuccessful challenge of those of his adversary.
Defendants' answer and abstract, if established, will present a complete defense to plaintiff's claim. An adverse and exclusive possession commencing with the conveyance to Margaret J. Miller in 1878 and continuing until the impetration of this writ, a period of forty-seven years, is properly averred and, if proven, will be a good defense. Appellee's suggestion, that an adverse possession cannot be invoked because of a tenancy in common, is untenable. When Frank Miller conveyed his one-half part to Margaret J. Miller, his interest ceased and he was no longer a tenant in common of the property. Furthermore, Margaret J. Miller's interest in the land was received from Frank Miller and she never was a tenant in common therein with him or with those claiming under the sheriff's sale. If that sale conveyed any title it was for the one-half interest which Frank had conveyed to her and she had no interest in any other part of the land; hence, she could not be a tenant in common with the purchaser at that sale. The other one-half, not here at issue, was and is owned by defendants through a conveyance to them from Virginia Miller's executor in 1907. Moreover, a joint possession is evidence of the claim of title of each occupant: Jackson v. McFadden (Pa.), 4 W. N.C. 439; therefore, Margaret J. Miller's possession was evidence of her title.
Defendants also aver that express notice of the title in Margaret J. Miller by virtue of the unrecorded deed, was given at the sheriff's sale and if shown it will protect her interest. They also expressly aver that Margaret J. Miller was in actual possession of the land at all times (from 1878 to 1917), including that of the sheriff's sale and of the later conveyance to Lyda P. Miller. If shown, that will be such constructive notice as to protect the title. One about to purchase land, either at sheriff's or private sale, is bound to inquire of those in possession of the premises and is charged with what such inquiry would have disclosed: Curry v. Bacharach Quality Shops, Inc., 271 Pa. 364; Stonecipher v. Keane, 268 Pa. 540; Lazarus v. Lehigh W. B. Coal Co., 246 Pa. 178; Brown v. Carey, 149 Pa. 134; Anderson v. Brinser, 129 Pa. 404; Rowe v. Ream, 105 Pa. 543; Krider v. Lafferty, 1 Wharton 303; McGarry v. McGarry, 9 Pa. Super. 71, 77, and other cases. As stated by the Superior Court in Hymen v. Gatta, 33 Pa. Super. 438, 440: "An unrecorded deed, with possession taken thereunder and maintained, is sufficient notice to subsequent purchasers. It is to be presumed that if the plaintiff had inquired of the defendants she would have been informed of the unrecorded deed." Actual open possession is sufficient evidence of notice of the title of the possessor: Meehan v. Williams, 48 Pa. 238. Of course, the questions of notice and possession are usually for the jury.
Again, treating plaintiff's pleadings as verity, she was not entitled to summary judgment. Her entire claim rests on the sheriff's sale, of which there is record evidence, but she avers neither the acknowledgment nor delivery of a sheriff's deed, and those acts are essential to vest title in the purchaser and enable him to maintain ejectment, and proper proof of the acknowledgment is the record: Bellas v. McCarty, 10 Watts 13; Lee, Receiver, et al. v. Newland et al., 164 Pa. 360, 365; and see Central Penna. L. Co. v. Bristol, 250 Pa. 61; also Duff v. Wynkoop et al., 74 Pa. 300. In the instant case, so far as appears, no deed therefor from the sheriff is of record or can be found or ever existed. Plaintiff, however, expresses a belief in her ability to supply any apparent defects in that regard, and we are loath to turn her out of court at this early stage of the proceedings on account of some missing record or document that may be found before the trial. We do not pass upon the effect of defendants' delay of ten months in moving for judgment on the pleadings. A summary judgment, however, should never be entered in a doubtful case: Franklin Sugar R. Co. v. Lykens M. Co., 274 Pa. 206; 31 Cyc. 607.
In ejectment, he who moves for judgment on the pleadings is liable to have it entered against him, where justified by the record: Shaw et al., Exrs., v. Cornman, 271 Pa. 260. In the instant case, as in other actions of ejectment, plaintiff must recover on the strength of her own title. See Artz v. Meister, 278 Pa. 583.
The judgment is reversed and the rule therefor is discharged with a procedendo.