248 Pa. 41 | Pa. | 1915
Opinion by
Jacob Kaufmann died November 1, 1905, seized as tenant in common with his three brothers, Isaac, Morris and Henry, of, inter alia, a certain piece of real estate in the first ward of the City of Pittsburgh, known as “Kaufmann Warehouse Property.” A bill in equity for the partition of the real estate was filed on November 6, 1909, and a decree of partition was entered December 6, 1910. A master was appointed to make the partition, and no bids for the property having been submitted by any of the parties in interest, the court, on April 25, 1911, directed the master to sell it. The property was duly advertised and on June 1, 1911, was sold to Isaac, Morris, and Henry Kaufmann. The sale was confirmed on June 8, 1911, and a deed was made to the purchasers on June 17, 1911.
An ordinance was passed by the councils of the City
We cannot sustain either of these contentions. The title to the premises was in the four cotenants when the bill was filed in November, 1909. The object- of a proceeding in partition is to make a physical division of the real estate among the several cotenants in accordance with their respective interests, and if that is not practicable, the statutes provide for the contingencies which may arise, one of which is the sale of the premises, or any of the purparts thereof: Kennedy v. Condran, 244 Pa. 264, 267. If the property cannot be divided among the several cotenants it is directed to be sold and the title passes to the purchaser. As we have repeatedly held, partition does not operate upon the title or in any way change its character nor create a new title. The title which an allotee or purchaser of a purpart takes is such as the tenants in common had prior to the partition. The decree quod partitio fiat does not dissolve the cotenancy or sever the possession, nor does it divest the title to the premises held by the tenants in common: McClure v. McClure, 14 Pa. 134; Harlan v. Langham, 69 Pa. 235; Davis v. Dickson, 92 Pa. 365. It is interlocutory and is simply one of the several steps which, in a proceeding in partition, makes a- division of the property among the owners and vests such title as they hold in common in the allotee or purchaser of a part or the whole of the premises. We have repeatedly held, and it may be considered as settled in this jurisdiction, that until the proceeding is completed by the confirmation of the allotment or of the sale of the property by the court, the title and ownership remain in the tenants in common. The title does not vest in the purchaser until the confirmation of the sale and the purchase-money is paid or secured: Walton v. Willis, 1 Dall. 351; Davis v. Dickson, 92 Pa. 365. In the case in hand, therefore, the title of the Kaufmanns, the tenants in common, did not pass
While this is in effect conceded by the appellants, they contend that the decree of partition entered in December, 1910, fixed tbe status of the subject matter, and the title of the purchasers relates back to that decree. If this contention be correct, it in effect makes tenants in common trustees for the subsequent unknown purchasers in proceedings in partition which, so far as we are advised, has never yet been suggested in any reported case. The possession and right of possession of the property unquestionably remain in the tenants in common until the title is divested, and during the pendency of the partition proceedings they, of necessity, are the only parties who can resist invasion of the property or protect it against a trespasser. If it is taken under the right of eminent domain, proceedings for the recovery of damages or compensation for the land taken must be instituted in the names of the cotenants. As shown by the authorities cited by the appellees, tenants in common as the owners of the property are entitled to all the income and profits arising therefrom until its allotment or the confirmation of the sale. Such profits are the personal assets of the tenants in common and do not pass by the confirmation of the sale or the delivery of the deed to the purchaser. There can, therefore, be no doubt that the title to the premises was vested in the four tenants in common until the confirmation of the sale on June 8, 1911, and that the preliminary decree of partition vested in the purchasers no interest in or title to the property.
The city ordinance locating and opening Watson street through the premises was approved by the mayor on April 6, 1911, viewers to assess the damages were appointed at the instance of the city on May 6, 1911, and notice was given to the owners May 13,1911, of the meeting of the viewers to be held on May 31, 1911, when they met on the premises for the performance of their duties.
It is clear that the order of sale issued to the master conferred no authority upon him to sell or convey the right to the damages arising from the location and construction of Watson street, and he had no authority to change the terms of sale: Jacob’s App., 23 Pa. 477. From his report it is apparent that he made no such sale, unless the sale of the premises carried with it a right to the damages. Whether the damages did pass by the sale of the land was a question of law which the master was not authorized to determine. The appellants, however, contend that thé appellees are estopped from claiming any part of the damages by reason of the announcement and notice to bidders at the time of the sale that the purchaser would be entitled to the damages. The appellees deny that such notice was given at the sale. In determining this question the learned judge of the court below had the testimony of several witnesses before him, and he found the appellants had not shown that the appellees heard the notice, if any such was given, at the time of the sale. There was ample evidence to sustain this finding and, we think, would have sustained the further finding that no such notice was given at the sale. The appellants set the matter up as a defense and, therefore, they had the affirmative of the proposition to sustain. Conceding that the appellees could be estopped from asserting their claim to the damages by such notice, the burden was upon the appellants to show, not only
The order of the court below making absolute the rule to amend the record is affirmed.