
    Reed, Appellant, v. Nichols.
    
      Ejectment — Evidence—Oral testimony — Charge of court — Priority of agreements.
    
    In an action of ejectment where the plaintiff and defendant claim title from the same grantor, the plaintiff under an earlier deed, and the defendant presents oral evidence which, though contradicted, tends to show that he bought the land in dispute which was a portion of that covered by the deed of the plaintiff, by an earlier agreement with the grantor than that of the plaintiff, and that the plaintiff had full knowledge of such agreement, it is reversible error for the court to charge in such a way that the jury might reasonably assume that the court was construing the writings and deciding as a matter of law that the date of the papers was controlling, without regard to the oral proofs as to notice, knowledge and possession.
    Argued April 15, 1912.
    Appeal, No. 16, April T., 1912, by plaintiff, from judgment of C. P. Washington Co., Aug. T., 1910, No. 116, on verdict for defendant in case of J. Winfield Reed v. T. F. Nichols.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Reversed.
    Ejectment for land in Smith township. Before Taylor, P. J.
    The facts are stated in the opinion of the Superior Court.
    The trial judge charged in part as follows:
    [It is a case where the grantor has made two deeds, two articles of agreement, two instruments of writing to two different grantees covering the same lot of ground. Under these conveyances the first to get into possession was Mr. Nichols. He claims that he is in possession by virtue of a prior right or title to Mr. Reed, on the ground that his contract was made away back in May, for the purchase of this lot, and Mr. Reed’s not until later on, as I have read the date, in August.] [4]
    [There can be no question here, that is it is not in dispute that Nichols went into possession of this lot on the contract that he made with Mrs. Bell, whenever it was, either back when he contracted to improve her property, or at the date of this receipt, June 9, for she after-wards, subsequently executed him a conveyance for the same, although Mr. Reed’s conveyance of the property was actually made and delivered, which included the whole, before Mr. Nichols received his conveyance, but that is no difference, gentlemen of the jury, when the deeds were made and delivered; it is when the contracts by Mrs. Bell were made, with these parties, and the first one that made a contract with her for the purchase of this lot would have the superior or paramount title of the other, because it is the first conveyance out of the grantor and into a grantee, and particularly when carried to the extent that the grantee in the first conveyance enters into possession.] [5]
    [As I said before, evidently here there was a mistake on the part of Mrs. Bell] but we are not, you are not, these parties are not endeavoring to set aside any conveyance, or alter or change any conveyance that Mrs. Bell made, either one to the other. The party in possession is simply claiming that “I own this lot, having purchased it before you did away back in May before Mr. Reed did, and therefore when Mrs. Bell contracted to convey this lot to you, even if it was included in the larger tract which you bought, that was not until some time in August, why I antedate you in title, and at the time Mrs. Bell conveyed to you title for this same ground, she conveyed to you ground that she did not own, because she had already bargained it away” to Nichols.] [6]
    Verdict and judgment for defendant. Plaintiff appealed.
    
      Errors assigned among others were (4-6) above instructions, quoting them.
    
      James P. Eagleson, for appellant.
    
      T. B, H. Brownlee, for appellee.
    
      October 14, 1912:
   Opinion by

Orlady, J.,

On August 4, 1908, the appellee purchased from Rachel Bell, by an agreement in writing, under seal, and acknowledged by each before a notary public, a tract of land in Washington county, and ten days later the purchaser had the agreement duly recorded. On September 28, pursuant to the agreement, and after the land had been surveyed and marked on the ground, Rachel Bell executed and delivered to Reed, the appellant, a general warranty deed for the premises, which were described by metes and bounds. The deed was duly recorded on October 26, and the purchaser entered into possession. On January 29, 1909, Rachel Bell executed and delivered to T. J. Nichols a general warranty deed for a part «of the same premises which she had conveyed to Reed, and this deed was recorded on February 1,1909. It was alleged that this deed was made pursuant to an oral agreement between Rachel Bell and T. J. Nichols made qn May or June 9, 1908, which was evidenced by a receipt signed by Rachel Bell for $100, and containing the following words: “payment on lot situate southeast of public road and adjoining property of J. R. McNary.” Nichols went into possession of this property early in the spring of 1909, and on June 28, obtained a rule on Reed to bring his action of ejectment. On the trial a verdict in favor of the defendant was returned by the jury.

The controlling question was whether at the time of the purchase by Reed on August 4, he had knowledge of the previous contract between Mrs. Bell and Nichols. This question was disputed and was clearly for the jury alone. There is not any controversy between the parties as to the character and degree of such notice as required by the decision: Mulliken v. Graham, 72 Pa. 484; Meehan v. Williams, 48 Pa. 238; Hottenstein v. Lerch, 104 Pa. 454.

In the charge to the jury, while the disputed facts were carefully reviewed, the learned trial judge stated that “under these conveyances the first to get into possession was Mr. Nichols — he claimed that he is in possession by virtue of prior right or title on the ground; that his contract was made away back in May for the purchase of the lot, and Mr. Reed's not until later on in August.” In the part quoted the jury would reasonably be misled by assuming that the court was construing the writings and deciding as matter of law that the date of the papers was controlling, without regard to the oral proofs as to notice, knowledge and possession. In another part of the charge of the court it is stated, “But I think the sole question is, who had the prior contract, the first contract for the sale of the lot, who purchased it first?” While this is not assigned for error, it is proper to refer to it for the purpose of showing that the error complained of was not counteracted but was emphasized.

A like error is presented in the sixth assignment.

At the conclusion of the testimony the plaintiff requested that the jury should be directed, under the evidence, to find for the plaintiff, which was properly refused, and after the verdict was rendered a motion for judgment non obstante veredicto was made based on the refusal of the court to give binding instructions and this was rightly refused. While there was no motion for a new trial, the error alleged in this record relates to the charge of the court on the trial. The fourth and sixth assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.  