Kennedy's Petition, Appeal, No. 181

Appeal, No. 181 | Pa. Super. Ct. | Mar 14, 1902

Opinion by

Rice, P. J.,

The respondent does not deny the allegation of the petitioner that the latter is in possession of the land and holds under a deed duly recorded. Nor does she assert that this deed is not in fee simple. Why, then, cannot the respondent bring an action of ejectment? We can find no sufficient reason adequately set forth in her answer, and it is needless to say .that we cannot consider facts of which there is neither allegation nor proof in the record.

1. Her concession, that “ she has not, does not and will not claim possession nor the right of possession to the land described in the petition so long as the said Sarah Kennedy lives,” is no answer. So far as appears this is a purely voluntary concession on her part. The very object of the act is to enable the person in possession to have the cloud on his title promptly removed, and it may be of the greatest importance to him to have the question tried in his lifetime. It was not contemplated that this could be prevented by the respondent’s mere voluntary concession, that he will not disturb the petitioner during his lifetime.

2. The respondent’s admission, that the petitioner “has a life estate in said land and the right to possession thereof during her lifetime,” is not an assertion that she has a life estate only, or that the respondent owns the remainder or the reversion. The respondent is very careful not to say what her claim is, or that she has any valid claim whatever.

3. -The respondent’s assertion that she cannot interfere with such possession in the lifetime of the petitioner is a mere inference. In showing cause she ought to have stated the facts Avith sufficient fullness to enable the court to determine whether the title, if any, under which she claims, is such as can be asserted and enforced in an action of ejectment in the lifetime of the petitioner.

For the reasons above suggested, we conclude that the answer is insufficient and the rule should have been made absolute.

The order discharging the rule is reversed and the record is remitted to the court below with directions to make the rule absolute and to enter judgment against the respondent unless Avithin thirty days from the making absolute of the rule she shall have brought her action of ejectment for the land described in the petition.