Opinion
April 17, 1950.
July 20, 1950.
Practice — Actions — Quieting title — Possession in defendant.
1. An action to quiet title will not lie where possession of the land in dispute is in the defendant.
2. It is only where the plaintiff is in possession of land against which a person not in possession makes claim or asserts the title that an action to quiet title will lie.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.
Appeal, No. 80, April T., 1950, from order of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 1502, in case of Hildagarde Ivory Buck et al. v. Louis J. Brunner. Order affirmed.
Bill in equity to quiet title.
The facts are stated in the opinion by ELLENBOGEN, J., of the court below, EGAN, MUSMANNO and ELLENBOGEN, JJ., as follows:
"This case is an action to quiet title in which the defendant filed an affidavit of defense raising questions of law, which is now before us for disposition.
"The defendant contends that the possession of the land in dispute is in the defendant and that, therefore, the plaintiffs must proceed by action of ejectment and not by complaint to quiet title.
"This position is well taken.
"Plaintiffs' complaint avers in Paragraph 4, that the defendant `erected a fence approximately 20 feet over the line from his property and on the said property of Gertrude Ivory (plaintiffs' property) claiming the said 20 foot strip along the westerly side of said property of Gertrude Ivory as his own'. This shows that the possession of the disputed strip of land is in the defendant. In such a case the plaintiff must bring an action in ejectment. [Mildren v. Nye, 240 Pa. 72, 87 A. 607.] It is only where the plaintiff is in possession of land against which a person not in possession makes claim or asserts the title, that an action to quiet title will lie: Rule [s] 1061 [to 1066] of the Procedural Rules."
Plaintiffs appealed.
Louis Vaira, with him John D. Stedeford, for appellants.
John E. Winner, with him Floyd V. Winner, for appellee.
Argued April 17, 1950.
The order is affirmed on the opinion of Judge ELLENBOGEN.