52 A.2d 232 | Pa. Super. Ct. | 1947
Argued March 4, 1947. This is an appeal by a tenant in common from a rent charge against his distributive share in the proceeds of a sale of the property in a partition proceedings, and involves section 20 of the Orphans' Court Partition Act of June 7, 1917, P.L. 337, 20 PS 1284, which provides as follows: "In case of partition of real estate now or hereafter held by two or more persons as tenants in common, where one or more of the said tenants shall have been or shall hereafter be in possession of said real estate, the parties in possession shall have deducted from their distributive shares of said real estate the proportional part of the rental value thereof to which their cotenant or cotenants are entitled for the time such real estate shall have been in possession as aforesaid."
On September 2, 1933, Sterling E. Search died intestate as to certain real estate, leaving to survive him his widow, Abbie Search, and various other heirs. The widow continued to live on the premises until she died intestate on June 2, 1944, her son, Osborne Shultz, the appellant, residing with her, and after her death he continued to live on the premises. On March 28, 1945, partition proceedings were brought in the Orphans' Court of Luzerne County. The trustee appointed by the court, after due notice, etc., sold the property to Osborne Shultz and Dorothy Shultz, his wife, and at the audit of the trustee's account the court, inter alia, made the following finding: "7. Because of the fact that Osborne Shultz had exclusive possession of the premises from the date of his mother's death, to-wit: June 2, 1944, until title to the property vested in him by virtue of the sale, to-wit: November 14th, 1945, he will be surcharged the value of the rents for this period. By agreement of all the parties the rental value fixed is $14.00 per month *490 or $238.00." After the appellant's exceptions to this finding were dismissed by the court below, this appeal was taken.
Although admitting that after the death of his mother he was in possession of the property, appellant contends that he is not liable for the rental value thereof because he did not deny "the same right to the other tenants in common". This contention is ruled against appellant and this case is controlled by HuffmanEstate (No. 1),
In this case the evidence sustains the auditing judge's finding of fact that appellant "had exclusive possession of the premises". The appellant testified that he paid the taxes on the property, made repairs to the building for his own accommodation and that since the death of his mother he had been "in exclusive possession of this property — no one else". The circumstances that none of the other tenants tried "to move in" or objected to appellant's "occupation of the place" are not material, under the authority of the Huffman case, supra.
Decree is affirmed at the cost of appellant.