16 Pa. Super. 350 | Pa. Super. Ct. | 1901
Opinion by
Plaintiffs’ bill alleges that they and the defendant are seized and possessed in fee simple, as tenants in common, in equal shares of two certain pieces and lots of land in which M. D. Carey, now deceased, acquired an undivided one-half interest by deed from the defendant; that said M. D. Carey, being so seized of an undivided one-half interest, died intestate, leaving to survive him, as his heirs, the plaintiffs; that, by virtue of the laws of this commonwealth, the plaintiffs became seized at the death of their intestate of and in said undivided one-half interest in said lands, and from then until the filing of the bill have owned and still own said property in common with defendant; that, from the death of their intestate up to the filing of their bill, the defendant has been in exclusive possession and control of said properties and has received the entire profit and income therefrom, and praying for partition and an accounting of rents, issues and profits.
The defendant in his answer denies that the plaintiffs are
Testimony was taken, in which the plaintiffs showed a deed from the defendant to their ancestor, with a receipt for the purchase money thereon, properly recorded, and made proof that they are the heirs of M. D. Carey. Defendant, who was sworn in his own behalf, testified that M. D. Carey lived with him at the time of his death and died in his family.
The court below finds the facts as stated in the plaintiffs’ bill and specifically “ that, upon December 6,1896, G. F. Sehaller, the defendant, was in exclusive possession and control of the property mentioned in the said first paragraph of the plaintiffs’ bill, and that he received the entire profit and income therefrom, and that he claims to be legally entitled to the same, and that he has been in exclusive possession of the said property from that time to the filing of his answer in this case, and we further find that the said complainants nor any of them have ever been in possession of the said premises described as aforesaid.” The court thereupon reaches the following conclusion of law: “ It is clear that the defendant claims to hold the said property adversely to the plaintiffs which appears in the bill of complaint and also in the defendant’s answer thereto; and, when said claim is set up and is shown to the court to be true, there can be no decree of partition, because this court, under facts such as these raise, is without jurisdiction.”
There is no denial of the general jurisdiction of the court under the Act of July 7, 1885, P. L. 257.
“ An action for partition can be maintained only by some one
The court below evidently regarded the exclusive possession of the defendant, alleged in the plaintiffs’ bill and admitted in the answer, as an adverse possession; but a possession may be exclusive without being adverse. There is no allegation in the defendant’s answer, nor is there any proof of any kind that his holding was adverse to the plaintiffs’. An adverse possession must be actual, continued, visible, notorious, distinct and hostile. To make the possession of one tenant in common adverse, it must be with acts of exclusive ownership of an unequivocal character: 1 Bouv. L. Dic. (1897) 107. The deed to the plaintiffs’ ancestor and his death in possession, as tenant in common, carried with it, under our intestate laws, the right of possession to the plaintiffs. No facts are stated by the defendant in his
There is no actual denial by the defendant of the plaintiffs’ title, that is, there is no averment of fact which, if true, would invalidate it. In an action of ejectment, upon the facts as here shown, the court would be bound to say, as a matter of law, that the plaintiffs were entitled to recover. There is, therefore, nothing in the case which ousts the jurisdiction of the court below. See Welch’s Appeal, 126 Pa. 297.
The decree, denying the prayer of the plaintiff for partition and accounting and dismissing the bill, is, therefore, reversed, the bill is reinstated and the record is remitted to the court below to proceed therein according to law.