242 Pa. 188 | Pa. | 1913
Opinion by
This is a bill in equity filed in the Common Pleas of Dauphin County by Henry A. Gable, the plaintiff, against George A., John E. and Harry I. Whiteside, praying for an injunction to restrain the defendants from encumbering or selling certain premises in the city of Harrisburg, and for a decree for specific performance of . a contract made by George A. Whiteside and Margaretta P. Whiteside, the father and aunt of the defendants, both of whom died before the bill was filed, and for the execution and delivery of a deed conveying to the plaintiff “the said real estate and every part thereof free from all encumbrances.”
The bill avers, inter alia, as follows: By a contract in writing dated April 23, 1901, George A. and Margaretta P. Whiteside leased the premises in question to the plaintiff for a term of five years from May 20, 1901, at an annual rental of five hundred and twenty-five dollars. The lease contained the following provision: “The said parties of the first part hereby give the said party of the second part an option to purchase the said premises for the sum of ten thousand five hundred dollars; this option to last during the tenancy of the term of this lease.” The contract provides that if the lessee shall continue on thé premises “after the termination of the above contract, then this contract to continue in full force for five years from May 20, 1906.” Prior to the expiration of the original term, the lessors by a writing dated March 29, 1906, ratified and confirmed the option given to Gable to purchase the property “any time during the ten years from date of this lease.” Gable took possession in pursuance of the lease, complied with all the terms thereof as to payment of rent, etc., and made extensive alterations and improvements on the property. He continued in possession of the property until the filing of the bill. George A. Whiteside died July 27, 1908, leaving a widow and three sons, the defendants, who are the residuary devisees of the property in ques
The answer denied that the option was ratified, and alleged that it had expired at the expiration of the original term. It also denied that the plaintiff had ever offered to take a conveyance and pay the full purchase price subject to the widow’s interest, or to take any conveyance unless she joined, which she refused to do. It set up that the Court of Common Pleas had no jurisdiction, the remedy being in the Orphans’ Court exclusively; that the widow was not a party to the lease or the option and had refused to take under her husband’s will; that the bill was defective because the widow was not joined as a party defendant and because Harry I. Whiteside was not joined as executor of the estates of his father and aunt.
After the hearing, the title of the case was amended by adding thereto as defendant the name of Harry I. White-side, executor of the estates of George A. Whiteside, deceased, and Margaretta P. Whiteside, deceased.
The learned court below entered a decree that the plaintiff is entitled to specific performance of the optional contract, and to a conveyance by the defendants
The third and twelfth assignments of error raise the question of the jurisdiction of the court to hear and determine the cause, and they must be sustained. The merits of the case are not before us and need not be considered. The Act of April 28, 1899, P. L. 157, 1 Purd. 743, provides: “Where any person shall have, by contract in writing, agreed to sell and convey any real estate in this Common wealth and dies seized or possessed thereof,......it shall be lawful in all such cases for the executor or administrator of the decedent vendor,...... or for the purchaser of such real estate......to petition the Orphans’ Court having jurisdiction of the accounts of the executor or administrator of the decedent vendor ......setting forth the facts of the case, and after due notice of such petition to the persons interested, according to the nature of the proceeding, to appear in such court on a day certain, and answer the petition; if there be cause, such court shall have power, if the facts be sufficient in equity, no sufficient cause being shown to the contrary, to decree specific performance of such contract according to the true intent and meaning thereof.” Jurisdiction of the Orphans’ Court to enforce specific performance of el contract for the sale of real estate by a decedent was also conferred by the Act
The decree of the court below is reversed, and the bill is dismissed at the costs of the plaintiff.