Biddle v. Starr

• Decision Date: 15 January 1848
• Parties: BIDDLE et al. <I>v.</I> STARR.
• Court: Pennsylvania Supreme Court

9 Pa. 461

BIDDLE et al. v. STARR.

Supreme Court of Pennsylvania.

January 4, 1848.

January 15, 1848.

Jan 4.

IN error from the Common Pleas of Schuylkill.

Mallery, for plaintiffs in error.—1. The court should, under the act, have decided whether the parties were entitled, before directing publication, &c. All parties to a partition must hold together, not adversely, which the heirs and devisees do. Hence, one or the other was improperly joined. The widow was joined, which is erroneous: 7 W. 205. The service is not set out by the sheriff; but that he made publication pursuant to the order. The act of Assembly is invalid — it takes the property from both parties, claiming under Houston, and vests it in trustees, not at their request, but at the request of a mere stranger. The title of the parties, whether as joint tenants or in common, is not alleged.

Williams, with whom was Parry, contrà.—The court cannot decide who are proper parties, until the writ is returned, and an opportunity given to be heard. The same form of expression is used in this respect as in the general acts relating to partition: after the return the court decide on this matter. The tenancy is alleged: "together and undivided do hold," are the words in all the precedents of partition between tenants in common: 2 Sel. Cromp. Prac. 217; Alnat. 68; 3 Chit. Pl. 1391; 10 Went. 151. For it is supposed that parties hold in common, unless the contrary is alleged: Cro. Eliz. 64

The object of the act is to obviate the objection made of the adverse claims under Houston, and with perfect fairness to them — the share is set apart, and they may determine their rights. It is a mere question of remedy: 2 W. 433; 7 W. 301; 2 W. & S. 277-8. That the act conveys the title trustees is no objection: 2 Barr, 277. The return is complete, incorporating the order by the reference. The widow is joined as a legatee, not as widow.

Jan. 15. ROGERS, J.

In consequence of the death of Churchill Houston, one of the tenants in common, and the difficulties caused by a controversy among his heirs and devisees, application was made for the passage of a law for the partition of the estate held in common. The application resulted in the act of the 13th March, 1847, entitled "An act to authorize the partition of certain real estate of Isaac Starr and others." It is admitted that, according to the course of the common law, the proceedings are altogether irregular; but it is contended they are in strict conformity to the act above cited. As many as nine errors have been assigned, which will be considered in their order. It is contended, first, that the court erred in not deciding before directing the service of notice, that the parties were entitled by law to claim and demand a partition or division of the land mentioned in the writ. I, however, see nothing in the act which alters, in this particular, the general rules and practice of the courts. The first section provides that the court shall, if the parties are by law entitled to claim and demand a partition or division, order and direct service of notice of said writ, and all other writs, rules, and orders, on the executors of C. Houston, &c. The legislature surely did not intend the court should decide on the title before the parties were summoned, and had an opportunity of being heard, for by such a procedure the defendants would be precluded by pleading non tenent insimul, or from setting out any other defence. The act of 1807, Purd. 909, authorizes the Court of Common Pleas to issue writs of partition in all cases where lands are held in joint-tenancy, coparcenary, and in common; and the act of 1821, Ib. 911, prescribes that when a writ of partition hath been or may be issued by any of the courts of this commonwealth having jurisdiction thereof, at the suit of one joint tenant, co-partner, or tenant in common, and the court shall proceed to examine the title, &c. A literal reading of these acts would lead to the conclusion that the court must, in the first place, examine the title or ascertain their jurisdiction; but this course has never been pursued, for the simple reason it would be unjust, for the reason stated. This practice is in strict conformity to all the precedents and the practice, for in no case do the court undertake to determine the title or the jurisdiction before the writs and notices are issued. In this case, the court decided on the title of the demandant and the defendants at the appropriate time.

Second error. — That it appears from the record, that all the defendants are not either tenants in common, joint tenants, or coparceners with the plaintiff, and are not properly made parties. It is stated in the præcipe that Isaac Starr (the plaintiff), and the said defendants, together and undivided do hold, &c. and this, as appears by 2 Sel. Pr. 217, 3 Chitty Pl. 1391, and 10 Went. 151, is the appropriate form. The act of 13th March, 1847, under which the proceeding is had, uses the words "seised of an undivided interest," which technically means only tenancy in common. If this was the only objection, the answer would be conclusive. But this is not the exception, as I understand it; but the objection is that there are persons joined in the writ who are neither the one nor the other, and therefore, as the plaintiffs in error contend, they are improperly made parties. If this were a proceeding at common law, the objection would be decisive, for this is undoubtedly the state of the record as presented, but it must be remembered this is a proceeding under the act, and in strict conformity to it, and becomes necessary in consequence of the peculiar situation of the estate of Houston, one of the tenants in common; and the same answer applies to the third and fourth errors, which are, that if the title of the devisees is good, the heirs have no interest, and cannot be parties, and that the judgment of partition, and setting out the tenth part of the premises to the persons and institutions named, claiming under Churchill Houston, deceased, either as heirs or devisees, is uncertain, and that the judgment in the alternative is void for the same reason. All these objections, as before observed, would be fatal but for the curative effect of the act. The parties, it is true, who are entitled to this purpart are uncertain, as that depends on the decision on the will of C. Houston; but the share to which one or other...