Donaghy's Estate, Appeal, No. 68

Appeal, No. 68 | Pa. | Nov 11, 1892

Per Curiam,

The purpose of partition being the severance of joint possession, the institution of proceedings by Mrs. Donaghy for the partition of her deceased husband’s lands necessarily implied the concession of a joint right of possession with her in those who were made parties. The court could have had jurisdiction on no other hypothesis. Its decree fixing her interest at one third, for life, was a judicial ascertainment of the extent of this concession and of her interest in the subject of partition ; and, having taken no appeal therefrom, she is estopped from denying the validity of the payment of owelty made by her daughter Mrs. Gill in the meantime. In thé circumstances, Mrs. Gill was justified in making the payment. Admit that the institution of proceedings for partition and the decree thereon were mistakes, still they were Mrs. Donaghy’s mistakes. The payment of owelty was made in good faith, because of her action and in obedience to the decree of the court made in due course. Mrs. Gill has no means of regaining the situation from which she was led by the action of her mother. It is not proposed to set aside the partition on.the ground of mistake, but to charge her with interest on the whole valuation of the purpart allotted to her as though the court had jurisdiction to entertain partition, and thus increase the burden much beyond that which she had expected to bear when she accepted the allotment. She has no means of compelling restoration of the owelty paid. Thus if the amendment be allowed, she must suffer a serious loss without any fault of hers. It is therefore clear that appellant has no equity so far as Mrs. Gill is concerned.

Decree affirmed and appeal dismissed with costs to be paid by appellant.