248 Pa. 594 | Pa. | 1915
Opinion by
This bill was filed by a tenant in common, not in possession, against his cotenant in possession, to compel an accounting by the latter for rents, issues and profits received by him during the period in question, and to ascertain the rental value of the real estate occupied by appellee to the end that he be charged with the same in the accounting. The real estate involved in the controversy descended from their father under the intestate laws and the parties took title as tenants in common. Prior to the filing of the present bill in the Common Pleas, appellant instituted a proceeding in the Orphans’ Court of the same county praying for a partition of the same lands. The parties having refused to accept at the valuation, a trustee was appointed to make sale, and the lands were accordingly sold under the order of the Orphans’ Court. Title passed to the purchaser and the proceeds of the sale are ready for distribution in the forum selected by appellant to make partition of the lands out of which the present controversy arose. If, therefore, the Orphans’ Court had jurisdiction of the subject matter, the party who instituted the proceeding should not be permitted to select another tribunal to hear and determine matters which are mere incidents growing out of the partition of the lands in a court of competent jurisdiction. Did the Orphans’ Court have jurisdiction of the matters here in dispute? If it had appellant has no case. The learned court below held that the Orphans’ Court had jurisdiction and upon this ground dismissed the present bill. After full consideration this court is of opinion that the Orphans’ Court had jurisdiction and that the bill was properly dismissed. Our conclusion, like that of the court below, is based upon the Act of June 24, 1895, P. L. 237. This act provides, that:
“In all cases in which any real estate is now or shall be hereafter held by two or more persons as tenants in common, and one or more of said tenants shall have
Prior to this act, there could be no recovery by one tenant in common out of possession from his cotenant in possession, of a proportionate share of the rents or rental value of the property, without proof of an agreement to pay the same: Enterprise Oil & Gas Co. v. National Transit Co., 172 Pa. 421. The Act of 1895 was evidently intended to supply this deficiency in the law, and it clearly contemplates that where real estate is held by tenants in common, the tenant in possession shall have deducted from his distributive share in a proceeding in partition the proportion of the rents or rental value to which his cotenant may be entitled: Lancaster v. Flowers, 208 Pa. 199. The learned counsel for appellant concedes that under the case just cited, and others which have followed the practice therein indicated, a tenant not in possession can compel a co-tenant in possession to account for rents and rental value of real estate when the proceeding for partition is instituted in the Common Pleas, but denies that this can be done when the Orphans’ Court has been selected as the tribunal to make the partition. No authority is cited to sustain the distinction attempted to be made; the Act of June 24, 1895, P. L. 237, makes no such distinction, nor does the language used in the statute indicate any such intention. It is true that the act does give a tenant not in possession the right to sue the tenant in possession and recover his proportionate share
It would seem to be in the interest of all concerned to have the matters in dispute adjudicated in one proceeding upon their, merits, rathér than to insist upon technical distinctions as to pleadings and procedure to such an extent as to multiply actions or proceedings involving the same subject matter. The Orphans’ Court has jurisdiction of the general subject matter here in
Decree affirmed at the cost of appellant.