Appeal of Wistar , 115 Pa. 241 ( 1887 )

Mr. Justice Trunkey

delivered the opinion of the court March 28th, 1887.

The petitioners set forth their title, the names and interest of the tenants in common, and the adjudication resulting in the possession by each tenant of his undivided interest in the land embraced in the partition. Upon the answer of Supplee, the lot in his possession, which he claims adversely to the petitioners, was excluded.

The appellants filed a plea denying that they are tenants in common with petitioners, denying the right of the petitioners to any portion of the land, or to have partition thereof; and they claim to hold the real estate exclusive of the partitioners. This plea is unsupported by averment of any fact at variance with the averments in the petition. It avoids denial that the petitioners are in possession with themselves; it merely asserts their claim. The validity of the will, under which all the parties claim, is unquestioned; the dispute between them was about its construction. In the ejectment against the appellants, the title was adjudicated, and, in execution of that judgment, the petitioners were put in possession by the sheriff.

Where the title of all parties is set out in the petition, and it appears therein that the dispute respecting it has been adjudicated, and in consequence the tenants in common are in joint -possession, the mere denial of the tenancy and right of partition is not enough to require the court to suspend proceedings until another trial of the right of some of the parties to take under the will.. Such denial is not persuasive that there is a real dispute. Not having denied the facts averred in the petition for the purpose of awarding the inquest, they are taken as admitted by the appellants. They presented nothing to enable the court to see that they had title to the land, or had adverse possession; a claim to hold the real estate exclusive of the petitioners shows neither title to the whole, nor possession in themselves. They must point out some defect in the petition or aver their own title or adverse possession to justify the court to refuse to proceed in the partition.

The ruling of the Orphans’ Court is not inconsistent with the cases cited by the appellants, namely: Lewis v. Pratt, 2 Whar., 81; Law v. Patterson, 1 W. & S., 184; and McMasters v. Carothers, 1 Pa., 324. In the first, Lewis averred that the decedent devised the* land to him, and that he was seized and had actual possession of said land under the devise, and held the same by virtue thereof. He not only had adverse possession, but prima facie a good title, for the court held that the issue which had been tried only settled that the decedent died intestate as to his personalty. Both title and adverse possession were properly averred in the answer. It clearly appeared in Law v. Patterson, that Law had adverse possession under claim of title. And, in McMasters v. Carothers, a part of the land was in the adverse and exclusive possession of Chalfant. Here the facts are different.

- The second assignment alleges error in striking off the plea. But the plea was not struck off. The court remarked its defects, and treated it as an answer, for the reason that the rules did not permit filing a plea, — overruling it for insufficiency.

The-third assignment is to alleged error in proceeding, pending the appeal from the award of inquest. It is denied by the appellees that an appeal was entered from that decree. It matters not if there was, for appeal from a decree awarding an inquest does not lie, and the court was not bound to stay partition because of the entry of an unauthorized appeal.

Decree affirmed, and appeal dismissed at the costs of appellants.