404 Pa. 247 | Pa. | 1961
Opinion by
This is an action in equity which, like Pope’s needless alexandrine, has dragged its slow length along for fourteen years. After such time the integrity of the law itself is in jeopardy, and we will not seek for niceties to impugn the maxim that it is in the interest of the public that litigation shall cease: Sellers v. Hanratty, 343 Pa. 316 (1941), 22 A. 2d 697.
The complaint asks an accounting, the return of various property, both real and personal, and incidental adjustments of the affairs between the parties. There is an answer with new matter, and a defendant’s request for the return of real and personal property and incidental relief. Testimony was taken in March, 1947, and December, 1948; an adjudication was filed on May 9, 1949; final decree is dated March 16, 1950; accounts were filed by both parties; a master was appointed in February, 1951, to partition certain properties under the decree; an auditor was appointed to audit the accounts; the master in partition reported; the auditor took testimony and reported; the plaintiff died in August, 1956, and an administrator c.t.a. was appointed for him; three appeals were taken to this court, in 1949, 1950, and 1952, and all were withdrawn; the properties were sold to bona fide purchasers for value.
She raises various questions. The first is that the court had no right to order partition because the real estate is not all in the county of the forum; two are in Philadelphia County, one in Montgomery, and two in Bucks. There is no merit in this argument.
The Act of February 20, 1854, P. L. 89, 12 PS §1767 (clarified by the Act of May 14, 1874, P. L. 156, 12 PS §1769), provides, pertinently: “All the courts of this commonwealth now having jurisdiction in matters of partition, shall have power to entertain suits and proceedings, whether at law or in equity or otherwise, for the partition of real estate, or the recovery of dower or the widow’s third or other part, although the lands to be divided or recovered may lie in one or more counties of this commonwealth: Provided, That such proceeding, intended to embrace lands in more than one county, shall be brought only in the county where a decedent, whose land is to be divided, had his domicile, or where the homestead, or larger part of the estate in value shall be situated . . .”
This Act was suspended by the Pa. Rules of Civil Procedure, where, in Rule 1552, Yenue, it is provided: “An action for the partition of real property, including an action in which the Commonwealth is a party, may be brought in and only in a county in which all or any part of any property which is the subject matter of the action is located.”
Jurisdiction of subject matter relates to the competence of a court to hear and determine controversies of the general nature of the action before the court; jurisdiction of the person is ordinarily acquired by service upon him of the court’s process within the territorial limits of its authority; and venue is the right of the party sued to have the action brought and heard in a particular judicial district: County Construction Co. v. Livengood Construction Corp., 393 Pa. 39 (1958), 142 A. 2d 9; McGinley v. Scott, 401 Pa. 310 (1960), 164 A. 2d 424.
Defendant filed an answer, with new matter, asking specific relief of plaintiff for the Bucks County farm, which is. the real nub of the controversy, and she has taken and withdrawn three appeals to this court before the current one. It is too late to object to venue now.
In any event, the court below had personal jurisdiction of the defendant and could order her to act or refrain from acting with respect to property within or without the forum county: Drummond v. Drummond, 402 Pa. 534 (1961), 167 A. 2d 287; De Luca v. De Luca, 388 Pa. 167 (1957), 130 A. 2d 179; Cohn v. Weiss, 356
Appellant argues that partition was an improper remedy because the parties held the properties as tenants by the entireties. To do so, of course, they had to be man and wife, as the entireties tenure is peculiar to the state of marriage. The facts are that defendant married a man named Lipeczky in 1933, was deserted by him in 1935, and was divorced by him in 1943. Meanwhile his father told her, when she inquired, that his son was dead; however innocent her belief in his death may have been, if he was not dead in fact she could not become the plaintiffs common-law wife: Frederick v. Bouthwick, 165 Pa. Superior Ct. 78 (1949), 67 A. 2d 802. In 1936 she began living with the plaintiff as man and wife, and they separated in May, 1946. She did not act on her supposed freedom to marry plaintiff when she heard that Lipeczky was dead, nor even when she learned that he was alive and had divorced her. In any event she could not have held property with plaintiff as tenants by the entireties from 1936 to 1943, since she had a living and undivorced husband, and after 1943 the court below, on ample evidence, found that no common law marriage existed.
Her counsel began the hearing in 1947 by saying: “By the entireties — and no such thing exists, because there was not even a common law marriage.” But his client later said that she married plaintiff, describing the procedure in two ways: once by saying to him, “I have always taken you as my husband”, and later, more carefully, “I feel the same way, I take you for my hus
Thus there is a wealth of evidence to support tbe Court’s finding against a common-law marriage, and it follows that partition was proper.
Appellant argues that tbe purchaser of tbe valuable farm in Bucks County, a man named Hill, is not a bona fide purchaser for value without notice because be knew about appellant’s resistance to tbe sale. Tbe argument is based on lack of jurisdiction, but since we are upholding jurisdiction tbe contention fails. We will not order tbe unwinding of any of tbe real estate sales involved, since to do so would disturb tbe rights of bona fide purchasers for value, and especially since tbe sale of tbe Bucks County farm occurred ten years ago.
Appellant complains that tbe court was indiscreet in ordering partition before an accounting. However we might look at such a question as a fresh problem, it is now clear that sbe waited eight years before making a specific objection. In such state of affairs we
We are not impressed by appellant’s attack on the Chancellor’s finding that the interests of the parties in the fund, resulting from the partition of the real estate and the division of the bank accounts, are equal. Since it has been her effort, though not consistently, to make a common-law marriage out of her relationship with the plaintiff, such an effort can be construed as evidence of intention to create at least a joint account with right of survivorship: Madden v. Gosztonyi Savings and Trust Co., 331 Pa. 476 (1938), 200 A. 624. And plaintiff spoke of their “joint account” and admitted that he lived with defendant as man and wife and held her out as such.
“An estate by the entireties consists of the five unities of time, title, interest, possession and marriage, all of which must coexist. A joint tenancy must contain the four unities of time, title, interest and possession. A joint tenancy thus possesses all of the unities of tenancy by the entireties except the unity of marriage”: Frederick v. Southwick, supra (165 Pa. Superior Ct. 79). Where the evidence fails, as it does here, to establish a tenancy by the entireties, the parties take such title as is most appropriate under the circumstances:
Appellant has raised other questions: an objection to the date of May, 1946, as the beginning of the accounting period, this being the point in time when the parties separated; an objection, not raised until 1959, to the sale of the Bucks County farm because she had not been given a chance to buy it at its appraised value, although the docket entries show, under date of November 28, 1951, that she offered in open court to buy the property at a price higher than that reported for confirmation by the Master in partition; that since plaintiff is dead she should take the whole estate on the court’s theory of joint tenancy with survivorship, per my et per tout, although their rights had been adjudicated, without appeal, long before the plaintiff’s death.
These questions are ghostly. The adjudication was filed on May 9, 1949, exceptions to it by both parties were dismissed in October, 1949, an appeal here was taken on December 22, 1949, and withdrawn March 15, 1950. On March 16, 1950, the court below entered its final decree and eight days later another appeal was taken here, only to be withdrawn on May 3, 1950. A
All of the basic questions in the case could have been resolved on these abortive appeals. Instead of that, she has let the record accumulate while the auditor held hearings, petitions were filed, the record was remanded to the auditor for further testimony, his report was filed on December 5, 1955, and supplemental reports on May 27 and August 20, 1959. Exceptions by both parties were dismissed on September 24, 1959, and a decree entered adopting the auditor’s findings, awarding $4342.99 out of the balance of $8537.04 to defendant and any excess received in like proportion, and directing that costs shall be divided equally and deducted from the awards. It was on August 21, 1956, that plaintiff died, although a suggestion of his death was not filed until December 21, 1959.
The case was effectively adjudicated, when, following its final decree of March 16, 1950, the court below confirmed the report of the Master in partition on December 8, 1953. The auditor was appointed to mop up rights already adjudicated and to present a balance for distribution. To unwind the sale of the farm and uproot the rights of the bona fide purchaser who bought it, and to open up the accounting back to 1936, with the plaintiff dead and the Dead Man’s Act blocking the witness chair, would be unnecessary and unfair, for appellant could have tried out her rights on one of her three former appeals, when the spoor of the case was fresh and young. She must be sternly foreclosed.
The decree now appealed from appears to be the last one of record, that of September 24, 1959, dismissing exceptions to the auditor’s reports, awarding $4842.99 to defendant and presumably $4194.05 to the administrator c.t.a., and any excess over $8537.04 in like proportion. The record must be remanded in order to determine whether there is any such excess and to award final amounts.
The decree is affirmed and the record is remanded for the purpose indicated. Costs to be borne equally by the parties and deducted from the awards.