Bartholomew's Appeal , 1872 Pa. LEXIS 148 ( 1872 )

The opinion of the court was delivered,

by

Thompson, 0. J.

There was some degree of irregularity in the proceedings in this case in awarding the purparts into which the lands of the decedent had been subdivided by the commissioners, that calls for notice as such, but which does not amount to reversible error. All of the heirs not being present at the time of making the report of partition by the commissioners, instead of offering the purparts, two in number, to those present, a rule should have been granted by the ’court upon all the heirs to come in on a day certain to refuse or accept the purparts at the appraisement. The court, however, allowed those present, in the order of seniority and sex, to make choice, and then granted a rule on those'not present, to wit: John Bartholomew and Sarah Henry, to appear on a day appointed, to refuse or declare their acceptance of the purparts. All the heirs appeared in court on that day, when John Bartholomew offered to take purpart No. 1 at $8 per acre above the appraisement, whereupon Levina, wife of Reuben Crock, who had on the first day offered $4 per acre more than the appraisement, now offered one cent per acre above the offer of John Bartholomew and the court awarded the land to her. We think there was error here. Mrs. Crock had had her bid, and was not entitled to a second. This we held to be the rule in Klohs v. Reifsnyder, 11 P. F. Smith 240, under the Act of April 22d 1856, § 10, Purd. Dig. 774, pl. 28. That act in express terms applies to “ all cases of partition of real estates in any eowt wherein a valuation shall have been made of the whole or parts thereof.” Of course, partition in the Orphans’ Court is embraced by the act, without interfering with the order of choice provided for in the 37th section of the Act of 29th March 1832. In Klohs v. Reifsnyder our brother Agnew has shown with striking clearness, the impropriety of bidding and overbidding in cases of partition, and that a party entitled to raise the value beyond the appraisement should do so by a proposition in writing. Mrs. Crock did not regard the real value in her first bid, for she went beyond jt $4.01 cent, per acre in her second. She introduced into the proceedings just what we condemned in the case cited, namely, alternate bidding. An heir wishing any certain appraised purpart, ought to make up his or her mind and offer what he or she is willing to give for it above the appraisement, and not depend upon what others may be willing to do. By the rule established in Klohs v. Reifsnyder, this is the only mode by which such a wish may be gratified. As John Bartholomew was the highest bidder according to law, the Orphans’ Court should have awarded purpart No. 1 to him.

The decree of 'the court below is therefore to this extent reversed, and the record is remitted, in order that a decree in accordance herewith shall he entered in the court below, the costs of this appeal to be paid by the appellee.