Cummisky v. Cummisky , 1885 Pa. LEXIS 471 ( 1885 )

Mr. Justice Gordon

delivered the opinion of the court,

The counsel for the plaintiff below requested the court to charge the jury “ that the judgment rendered in the action of partition is conclusive upon Nora Cummisky, and the subsequent proceeding's by which the land was sold and purchased by I. S. Jones vested a good title in him and his vendee, Patrick Cummisky, as against Nora Cummisky and her husband.” This was refused as was a second point, requiring the direction that the proceedings in the partition could not be impeached in the action of ejectment then trying. We think the refusal to answer as requested in both these points was error. The court held that the proceedings in partition were not conducted in a legal manner, and that Nora Cummisky was not bound thereby. The learned judge thus proceeds to enumerate the points wherein" he thought the record was deficient: “ There has been no sufficient judgment quod partitio fiat; no examination of the title; no valid inquisition or alias inquisition; no final judgment; no confirmation, and that includes no valid sale, having been made.” If, indeed, these charges against the record are correct, there was certainly no title passed by the sheriff’s sale and deed to Jones, and, of course, the plaintiff’s title fails. There cannot be such a thing as an adversary partition without a judgment or decree that partition shall be made, neither can a sale of the property be ordered without an inquisition, and the subsequent proceedings leading to such sale. But in all this the court was mistaken ; the proceedings were irregular in no material particular. The writ was served on Nora Cummisky and her husband, Bernard; there was a narr. filed, an appearance entered, and a plea put in by which the defendants denied that they held the premises together and undivided with the plaintiff. That plea was afterwards withdrawn, and thereupon the court entered judgment quod partitio fiat. It is said, however, that the court, before entering that judgment, made no examination of the title as required by the Act of Assembly. But as the Act, in this particular, is but directory, we will presume that the court did its duty. On the same day upon which judgment was entered, on motion of plaintiff’s attorney, a writ de partitions .faciendo, was awarded, and was issued returnable to the following September term. Here again the record is impeached in that an alias writ issued without the order of the court. This defect, if defect it is, is explained as follows: the attorney, by his praecipe, ordered the writ returnable, as was proper, to the September term, and the prothouotary, by mistake, made it returnable to the then present May term, which did not give time necessary for the requisite notices, thereupon a return of it was directed and a new writ issued. This may have been irregular, but nothing more. It, in fact, carried out the order of the court, and as no objection was made to this irregularity at the time, it cannot now be taken advantage of. Under this writ an inquisition was, in due form, had and returned, and in this inquisition it is found set forth that the parties in the said writ named had been severally warned, and that as many as chose were present. It is urged that this was not a sufficient return of the service of the notices. We think it was, and in this we are sustained by the cases of Richards v. Rote, 18 P. F. S., 248; Horam’s Appeal, 9 Id., 152; and Vensel’s Appeal, 27 Id., 71. In the case first named, which was in the Orphans’ Court, it was held that when the names of the parties appear in the petition and other proceedings, it will be presumed that due and regular notice was given even when it does not affirmativety so appear on the record. In other words, there is in such case a conclusive presumption in favor of the regularity of the proceedings. These authorities certainly dispose of the objection to the record now before us, for not only does it appear by the inquisition that the defendants were warned, but their names appear everywhere in the said record. As we have said, the inquisition was duly returned, and it was therein set forth that the property could not be divided without prejudice to or spoiling the Avhole, Avith an appraisement in the sum of $3,083.38, all of which Avas approved by the court. Thereupon a rule was granted on all persons interested to come into court on a day fixed, and accept or refuse the premises at the appraisement, and of this rule the defendants had notice. On the day thus fixed, October 3d, 1882, no one appearing to accept, an order Avas made for the sale of the property by the sheriff of CraAvford county. In obedience to this order, as appears by the sheriff's return, on due and legal notice the property was put up for sale, and sold to I. S. Jones, the vendor of the plaintiff. The money arising from this sale was brought into court, a deed executed by him to his vendee, as prescribed by the Act of Assembly, and that deed, after acknowledgment in open court, Avas duly delivered. In all this there Avas a strict compliance Avith the statute, and if there is not in these proceedings a formal judgment or decree it is because the Act of Assembly does not require it. Nevertheless the whole of the record, subsequent to the judgment quod partitio, does constitute a decree which, though informal, is final and conclusive on all the parties. Finally, as to the objection that the proceedings are not found copied into the partition docket, we have but to say, in the language of the case of the Girard Life Insurance Company v. The Farmers’ and Mechanics’ National Bank, 7 P. F. S., 388, that this fact does in no manner affect the purchaser, since it was not his business to see to the proper keeping of the dockets.

The judgment is reversed and a new venire ordered.