delivered the opinion of the court, January 3d 1882.
This was an action of ejectment. The errors assigned are the entering a compulsory nonsuit, and refusing to take it off.
The summons issued in 1860, in favor of Thomas Williams, against three defendants, who were duly served. In March 1861 judgment was taken against them for want of an appearance. In 1873 the plaintiff obtained a rule to show cause why the judgment should not be stricken off. In March 1876 this rule was made absolute. Soon thereafter the death of the plaintiff was suggested, and the names of his administrators substituted. An alias summons issued, and in June following was served on Weaver and his tenant, Mcltae. Weaver, under protest that he was not in possession of the premises, either by himself or tenant, at the time of the service of the writ, and that he should not be made a party to the suit, or bis rights affected thereby, pleaded not guilty, and MeBae did the same. Before the case came on for trial all the original defendants died, Weaver had been decreed a bankrupt, and Irwin appointed Ms assignee. The jury was sworn and cause tried against McNae, and Irwin, assignee in bankruptcy of Weaver, as sole defendants.
On the trial the main reliance of the plaintiffs was on an article of agreement entered into by one Joseph Wilson with Thomas W illiams in 1841; but they gave no evidence that Weaver entered into possession under Wilson. On the contrary Weaver recovered by ejectment against tbe tenants of Wilson six years after tliis suit was commenced, and as the evidence indicates on a title hostile to Wilson’s. It is true evidence was offered by tbe plaintiffs for the alleged purpose of showing that Weaver claimed under Wilson; hut it was rejected by the court, and there is no assignment of error to this rejection. The correctness of the judgment must then rest solely on the evidence received.
Having failed to prove that Weaver entered under the title of Wilson, the only other course for the plaintiffs was to establish a title in Thomas Williams. This they wholly failed to do. They gave in evidence a judgment against one Simon Snyder, an execution thereon, and a sale of the land and deed to Williams. They did not give evidence of any title in Snyder, nor did any witness testify that Snyder ever claimed to own the land. Snyder had moved away from the neighborhood, and was not called as a witness. It was not shown whether he was living or dead. It appeared that Snyder lived on the premises and operated the tannery thereon for several years, and built a house which he occupied. No evidence was given showing under what right or claim he entered or con*42tinued in possession, nor whether all the improvements he made were not more than compensated by his use of the premises. The purchase of Williams gave him a right to the possession of Snyder. Under that right he agreed to sell to Wilson who put his tenants in possession. Weaver, having recovered by legal proceedings adverse to that title, can retain possession against the plaintiffs until they show a superior title in themselves. This they wholly failed to establish, and the learned judge committed no error in taking the case from the jury.
Judgment affirmed.