11 A.2d 514 | Pa. Super. Ct. | 1939
Argued December 19, 1939.
On May 6, 1921, plaintiff and defendant purchased a certain property in Delaware County, and took title thereto as tenants by entireties. Defendant obtained a decree of absolute divorce from plaintiff (wife) on December 6, 1932, which was afterwards affirmed on October 2, 1935, by this court (Mertz v. Mertz,
Plaintiff filed a bill in equity on May 7, 1937, which was in the nature of a bill in equity for the partition of real estate; and the prayers were: (1) The public or private sale of the real estate owned by plaintiff and defendant as tenants by entireties, and described in the bill, and the division of the proceeds between the parties; (2) an accounting of the rents and profits accruing by reason of the occupancy and possession of the premises by defendant; (3) defendant pay plaintiff each month one-half of the fair rental value of the premises until the sale of the same; (4) defendant pay the costs of the proceedings; (5) such further equitable relief as the circumstances warrant.
Defendant, on June 4, 1937, filed an answer raising as preliminary objections to the bill (1) that title to the premises sought to be sold was vested in plaintiff and defendant as tenants by entireties by deed dated May 6, 1921, and that consequently defendant's estate could not be divested or stripped of any of its incidents except by express statutory provision existing at the time of its inception; (2) that plaintiff was not entitled to the relief prayed for in her bill; (3) that the court was without jurisdiction to grant the relief prayed for by plaintiff.
The preliminary objections were overruled by the court, and defendant was directed to file an answer to the bill within fifteen days, etc. An answer was then *301 filed by defendant and a hearing was held. In due course the court entered a decree directing defendant to pay plaintiff the sum of $79.88, one-half of the fair rental value of said premises, from April 30, 1937, to December 21, 1937. (This sum was reduced to $44.36 by the court in a supplemental decree.) The court in its decree further ordered and directed that defendant within thirty days of the date of the decree account to plaintiff, her agent or attorney, for all rents and profits accruing by reason of his occupancy and possession of said premises in the minimum amount of $20 per month, together with one-half of any amounts in excess of $40 per month received as rents and profits, and to thereafter render such accounting as aforesaid in writing, at intervals of not more than six months, during the continuance of the tenancy by entirety. The court also directed that defendant should not thereafter at any time make any repairs to the premises or incur any expenses thereon without the written approval of the plaintiff; that any repairs made or expenses incurred without such approval by plaintiff would not be deductible in any accounting made by defendant to plaintiff; that defendant thereafter pay over to plaintiff, her agent or attorney, within thirty days from the date of the decree for the period beginning January 1, 1938, and ending July 1, 1938, and thereafter at intervals of not more than six months, one-half of the fair rental value of the said premises; and that defendant pay the costs of the proceedings. The court sustained some minor exceptions and dismissed the others and entered a final decree.
Defendant has appealed.
Simultaneously with the filing of the bill in equity plaintiff had issued a summons in assumpsit, accompanied by a statement of claim, against defendant to recover one-half of the fair rental value of the premises to that time. *302
It is true that plaintiff and defendant as tenants by entireties became, after the granting of the divorce, for all practical purposes between themselves, tenants in common so far as the rents or the rental value of the real estate are concerned. O'Malley v. O'Malley,
On the other hand, plaintiff could not compel the partition of the real estate acquired by herself and defendant as tenants by entireties prior to the Act of May 10, 1927, P.L. 884, § 1, 23 P. S. § 94. Real estate held by tenants by entireties prior to that act is not a subject of partition although the parties are subsequently divorced. See Alles v. Lyon,
The court below to sustain its position cites O'Malley v.O'Malley, supra, Cornelius v. Cornelius, supra, and Stevens v.Stevens, 22 Pa. D. C. 696. The O'Malley and Cornelius cases were actions in assumpsit, while in the Stevens case, where the parties were separated but not divorced, it was held, inter alia, that defendant was not accountable in equity to plaintiff for the fair rental value of the property held by them as tenants by entireties which was in defendant's exclusive possession.
In referring to the Act of June 24, 1895, P.L. 237, § 1,
The preliminary objections to plaintiff's bill should have been sustained and the bill dismissed for want of jurisdiction of the subject matter. See Harrison v. Harrison et al.,
Defendant must not be unmindful that there are limitations to his dealing with the property which is vested not alone in him, but in him and plaintiff as tenants by entireties. He cannot ignore the rights of plaintiff, and act capriciously in connection with the property which they so hold. His conduct in connection therewith must be fair and proper. He may act for both in the preservation of the estate, but this does not include the power of the one in possession to deal with it to the prejudice of the other. See Sielecki et al. v. Sielecki et al.,
The decree of the court below is reversed, and the record is remitted to the court below with directions to dismiss the bill for want of jurisdiction. The costs are to be divided between plaintiff and defendant.
