Muhlenberg v. Druckenmiller

1. Where a plaintiff in ejectment fails to show a good title in those through whom lie claims a non-suit will he entered. 2. Where a recital in a deed under which a party claims is merely descriptive, and in no sense contractual, it does not operate as an estoppel, but may be rebutted by parol evidence. As to a third party not claiming under the deed, such a recital amounts to merely hearsay evidence, and as such is open to rebuttal by either direct or circumstantial evidence.

Error to the Court of Common Pleas of Lancaster county : Of January Term 1883, No. 166. Ejectment, by Benjamin S. Muhlenberg et ah, surviving executors of the will of Dr. F. A. Muhlenberg, deceased, against Catharine Druckenmiller and Jacob Druckenmiller, her husband, to recover possession of a piece of ground in the city of Lancaster. On the trial, before Patterson, J., the plaintiff put in evidence the record of a deed, dated March 28th 1821, recorded same day, from Joseph Cloud and George Hambright, trustees of Samuel O. Offner, to Frederick A. Muhlenberg (plaintiffs’ testator), for a piece of land, including the lot in controversy. Also a deed dated April 12th 1837, recorded June 29th 1840, from Frederick A. Muhlenberg and wife to Jacob Griel, for the same piece of land, with the exception mentioned in the following clause of said deed, to wit: “It being the same piece or parcel of ground (excepting so much thereof as was taken up and used by the Columbia, Lancaster and Philadelphia railroad) and Lancaster and New Holland Turnpike, as purchased by the city of Lancaster, which Joseph Cloud, Jr., and George Hambright, trustees of Samuel C. Offner, by indenture, under their hands and seals, bearing date, the twenty-eighth day of March A. D. 1821, for the consideration therein mentioned, did grant and confirm unto the said F. A. Muhlenberg (first party hereto) his heirs and assigns forever.” The words above printed in italics were interlined in said deed, and the interlineation duly noted in the attestation clause. The land which was the subject of the exception in the above extract from the deed was the property for which this suit was brought. The plaintiff called the mayor of the city of Lancaster, who testified that he had been unable to find, among the city archives, any deed or evidence of title from F. A. Muhlenberg to the city of Lancaster for the premises in dispute, referred to in above extract as “ purchased by the city of Lancaster,” and that he did not know of any evidence of title in said city. It appeared that from 1834 to about 1877 the premises in dispute were included within the lines of said Lancaster an'd Mew Holland Turnpike Road, and that about 1877, that part of the turnpike road covering said premises was vacated, whereupon the defendants, being owners of land adjoining the premises in dispute, took possession thereof. The plaintiffs claimed, that, as the Turnpike Company had simply an easement of right of way, and as Dr. Muhlenberg, in his said deed to Griel, had expressly excepted from said conveyance the premises so subject to said easement, he never parted with the fee, and upon the vacation and abandonment of the turnpike road, the title and right of possession to the premises in question reverted to his estate. At the close of the plaintiff’s case, the court, on motion of defendant, entered a non-suit, which the court in banc subsequently refused to take off; whereupon the plaintiffs took this writ of error, assigning for error the refusal of the court to take -off the .non-suit.