Opinion,
Me. Chief Justice Goedon :This was an action of trespass quare clausum fregit brought by John W. Wertz, in his lifetime, against Halsey Arnold and Simeon Summerson, for cutting timber on the lands of the said plaintiff. Before the time of trial the plaintiff deceased, and the administrator of his estate was substituted. The main question was one of location, and was fully and fairly submitted to the jury, and of this no complaint has been made in this court.
The first and second assignments relate to Wertz’s title, an article of agreement from A. C. Noyes, executor of John W. Pfoutz, deceased; and the complaint is, that as it was drawn to John W. and Taylor Wertz the court ought not to have *110permitted it to have gone in evidence, for that this action could not be maintained by one of these tenants in common. Turning, however, to the paper referred to, we find that whilst Taylor Wertz’s name is found in the body of it, he did > not execute it; and, on being called to the witness stand, he disclaimed all interest therein, so that the entire equitable estate vested in the plaintiff. Were it otherwise, however, as was said by Mr. Justice Lewis, in the case of Halsey v. Blood, 29 Pa. 319, “ a wrongdoer without title, who endeavors to protect his trespass by the outstanding title of a stranger, has no equity, and is not entitled to any particular favor.” As the plaintiff’s equitable title was entirely sufficient to maintain his action, Miller v. Zufall, 113 Pa. 317, the evidence complained of in the second assignment was of very little moment. Still, there was nothing objectionable in showing that Wertz’s agreement* had been sanctioned by the Orphan’s Court, and that a deed had been made to him in accordance with its decree.
The third assignment is wholly without merit, for the plaintiff had the undoubted right to rebut the defendants’ evidence of location. The fourth needs no consideration, for, so far as the testimony therein stated was relevant as rebutting evidence, it was admitted, and the witnesses fully examined.
Nor can we see that the fifth assignment convicts the court of error. The proposed evidence was offered with other testimony, to establish the line of the Carskaddon tract, and was, therefore, clearly evidence in chief, and regularly could not be introduced to rebut the plaintiff’s rebutting testimony. The transaction stands thus : It was necessary for the plaintiff, in the outstart, to make out his case, not only by proving title or possession, but also that the timber was cut within the lines of his claim. To do this he necessarily proves the lines of the Carskaddon tract, because it is older than and adjoins the Pfoutz, so that upon him, in the first instance, rests the burden of establishing the line of the Carskaddon tract. The defendants then rebut, by fixing, if they can, what they designate as the' “ Baird line,” and they are bound to produce all the evidence they have bearing on this point. They will not be permitted to give part of it in chief, and reserve the balance for the purpose of rebuttal. But this is precisely what the defendants attempted to do. If Wertz recognized the Baird line *111as the line of the Carskaddon tract, that was some evidence of the rectitude of the defendants’ contention, and as such was clearly evidence in chief. It could be nothing else, for if it did not go to the establishment of the Baird line, it was to no purpose whatever. -It could not be used to contradict declarations of Wertz, for none such were given in evidence. There was but one thing for which, as the case was tried, the proposed proof could be used, and that was as evidence of location. Even as evidence in mitigation of damages, and a proposition of this kind is not in the case, it could be used only in rebuttal and not as proposed, as sur-rebuttal. So that in any view of the case, the court below cannot be reversed on this point without also reversing a well-settled rule of practice.
The judgment is affirmed.