The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-04-23
OPINION IN CASE.
The opinion of the Superior court
written by Judge Beaver, follows:

The opinion of the Superior court.
written by Judge Beaver, follows:
]. The principal question involved in this ap.
peal, as stated by the appellant and accepted by
tie appellee, is "Docs, the recovery of jllg.
mcnt in o;cctmcnt, without surrender. an entry
issuing Of laberc facias toll the statute of
Limitations and interrupt an adverse possession
The general rule upon this subject, as stated in
Clc. lC1o. is that ''rhc nero recovery OF
Judgment will not Of itself stop the running nf
the statute of limitations there must be an ac.
tual change Of possession by virtue OF such iudg.
ncnt.' Thi., rule seems TO be founded in
an,l for il there is abundant authority. the doc
trinrs relating thereto being collected in the
notcS to the statement of the rule above quoted.
Among the authorities cited as contra is the
upon wht, thc court below and the appellee here
rely as determining the quest sion-Brolaskcy vs..
Met lain, III Pa. lt6
Where tlrrc is such an apparent contravcn'icn
OF tho gtrcral rule and seeming contradiction
of many of the Pennsylvania authorities, it he.
hoovrs us TO make careful examination Of the
case upon which such contention is based. 1t
is true that in Broaskcy vs. Mctlain, supra, Mr.
Justice Williams says: 'lf Webster and his heirs
had the continued and adverse possession OF the
lot dur.n.: all this time. it would be sufficient to
.:ive them title under the statutc but as we
have alIe"oy seen Richard Peters brought an
tion OF c,ccncnt against Henry Webster in 1878
and recovered a verdict and Judgment therein in
ls2i. This recovery stopped the running OF the
statute and, even il the Wcbsters held adverse
possession Of the lot thereafter until the house
was tom down, in 1888, they acquired no title,
under the statute OF limitations" II there was
nothing else in this case, and it stood alone in
Pennsylvania, it would, OF course, he conclusive
upon MS as to that question, but it was said with
reference to all the facts OF the case, whicl, in.
nl,tfI1 fla IcS,ii iirr pf l,nt e., and,
turn by the sheriff, "Lcvied and sheriff received
costs in Judgment in ciectment involving the
Same pI,mises although against different defend.
ant" II is therefore, to he presumed that the
sheriff cid his duty and delivered the possession,
as required by his writ, to the plaintiff in the
ticctWnt and, il so, the itself, whatever the
language OF the opinion Judge may be, cannot he
relied upon as authority for the contention of the
appellee. With this single exception. the authori.
lies in Pennsylvania seem to be in entire har.
mony with the general rule.
A CASE CITED.
in P,dcrick vs.. Scarlc, 8 s.. and r. 236 the
case OF Jackson vs.. Iaviand, I3 Johns. 22O. is
cited with approval. in which it is held: hav.
ing obtained Judgment by default in an ejectnent
against b. but did not take possession. and hav.
ing SufeIco the tenn laid in, the declaration to
expire and the possession OF the defendant being
continued without interruption, so that the whole
time, including that which elapsed after the
Judgment amounted TO twenty years, might de-
fend himself under the statute OF limitations
arains. second eectment although AS right OF
entry was established by the judgment, and lie
might have lawfully have entered without writ
OF possession.
That n Judgment in eectment does not change
the relation between the plaintiff and defendant
so far as the possession is concerned, is further
shown by Rambler VS.. Tyron, $. and r, 30, and
Ross VS. Plcasants, ID Pa, l57, in which it was
held that plaintiff, in whose favor verdict in
eiectmcnl has been rendered, may maintain a
second eieciment for the same land without tax.
ing possession or issuing process for that purpose
under his first eiectment. II mere judgment in
cccimcnt gave linn the possession of the land in
dispute. he could not. OF course, maintain sec.
ond c.ec,meIt, for the foundation OF the action
is the actual possession by the defendant
In Powell vs., Smith, Watts, 1876, which was
replevin fcr a chatel which became, such by a
severance from the freehold, il was held that re.
plcvin would not lie, on the ground, as stated by
Chief Justice Gibson, that "The property laid in
the declaration was taken by the defendant
while lie was yet in actual possession, though
after recovery Of the mill of which 1t was es.
soltially part; and the only thing like qucs.
lion in the cause is whether the naked recovery,
which preceded the asportation, DISTINGUISHES the
case from those cited; but nothing is clearer than
that such recovery is not equivalent TO an en-.
try, even to bar the statute Of limitations, and
therefore. not equivalent to ac,ual POSSESSION"
Justice Elack, in delivering the opinion, says