Pearson v. Hartman

1. The owner of a certain lot of ground conveyed the same to trustees to be used as a grave-yard, reserving “ the right and privilege to and for the said grantor, and every member of his family or their offspring, to mark oil within the boundaries of the above-described lot, one square perch of ground in any locality thereof where they may think proper for their own and separate use forever for the burial of the dead.” Held, that the privilege thus reserved was personal to the grantor and his family, and was incapable of assignment to a stranger. 3. A stranger, claiming under an assignment from the said grantor of all his right, title and interest under said reservation, took possession of a lot in the said grave-yard without due authority from the trustees, and erected a fence round it. The trustees notified him to remove the fence, and, on his failing to do so, caused the same to be demolished. In an action of trespass by the stranger against the persons removing the fence under the authority of said trustees — Held, that the defendants were entitled to judgment.

■ Error to the Court of Common Pleas, of Lehigh county:' Of January Term 1882, No. 156. Trespass quare clausum fregit, by Isaac Hartman against Henry B. Pearson and seven others, to recover damages for removing an iron fence from a plot of ground in the cemetery of the Eriedensville Union Church. On the trial, before Myers, P. J., the following facts appeared : In 1859, Jacob Correll granted and conveyed to “John Schleider, one of the elders and trustees of the Lutheran congregation, and Henry B. Pearson, one of the Evangelic Reformed elders and trustees of ‘‘Friedens Kirche,’"” ana their successors, one acre and ten perches of ground, to have and to hold the same to the said John Schleider and Henry B. Pearson and their successors as trustees of the said congregations and to . and for the only use and behoof for a grave-yard for the burial of the dead of the present members of the said congregations and to and for the use of them for said purpose, who shall hereafter be joined to them in community or church-fellowship, and to and for no other use, intent or purpose whatsoever forever”- — -and reserving “ the right and privilege to and for the said Jacob Correll and every member of his family or their offspring to mark off within the boundaries of the above-described lot, one square perch of ground in any locality thereof where they may think proper for their own and separate use forever for the burial of their dead.” On May 12th 1876, Jacob Correll, not having personally availed himself of his reserved right, executed the following paper: “ Bethlehem, May 12th 1876. “ For value received I assign unto yon all my right title, interest and demand, to Isaac Hartman, of my square rood of ground in New Grave Yeard and reseived payment in full, for the amount of ten dollars. “ Jacob Correll.” Isaac Hartman, the assignee named in said paper, was a member of the Lutheran congregation, but was not related to Jacob Correll. lie took possession of a lot, which one of the members of the vestry staked off for him at his request, and in November 1877 he enclqged said lot with an iron fence. In January 1878, John Mohr and Conrad Laible, two of the trustees, served a written notice on Hartman to the effect that he was considered a trespasser, and requiring him to remove said fence within ten days, otherwise “ such measures will be taken as will be necessary to clear said ground of said obstructions.” This notice was signed by said two trustees “ in behalf of the Lutheran and German Reformed congregations at Friedensville.” Hartman paid no attention to this notice, whereupon the defendants removed the fence. The court instructed the jury, inter alia: “We charge you, therefore, as the law of this case, that the defendants were trespassers in interfering with the plaintiff’s possession by removing his fence, and the only question for your determination is what amount of damages is the plaintiff entitled to recover. “ The plaintiff has submitted two points: “ 1. Under the evidence in the' case the verdict must be for the plaintiff. “ 2. If the jury believe that the wrongs admitted to have been done by the defendants, were done maliciously, the jury may assess vindictive damages. “These points are affirmed, reserving, however, the legal question presented by the uncontradicted testimony whether the plaintiff is entitled to judgment on the verdict, or whether judgment shall be entered in favor of the defendants notwithstanding the verdict.” (Exception.) • Yerdict for plaintiff, for $82.50. The court subsequently overruled a motion by defendants for judgment in their favor, non obstante veredicto, and entered judgment for the plaintiff, on the points reserved, for the amount of the verdict. The defendants thereupon took this writ, assigning for error, the above action of the court in reserving the question of law, in directing a verdict for plaintiff and in entering judgment on the verdict.