Grubb v. Grubb

• Decision Date: 02 July 1873
• Citation: 74 Pa. 25
• Parties: Grubb <I>versus</I> Grubb <I>et al.</I>
• Court: Pennsylvania Supreme Court

74 Pa. 25

Grubb versus Grubb et al.

Supreme Court of Pennsylvania.

May 6, 1873.

July 2, 1873.

May 6th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Lancaster county: Of May Term 1873, No. 44.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

W. Mac Veagh and A. Slaymaker (with whom were C. H. T. Collis, S. H. Reynolds, W. Darlington and Black), for plaintiff in error.—The action of partition in Pennsylvania is as at common law and under statutes of 31, 32 Henry VIII.: Coleman v. Coleman, 7 Harris 100; Miller on Partition 19. The defendant having pleaded the general issue, the plaintiffs were bound to prove their whole case. The action must be by a tenant of the freehold: 16 Viner's Abr. 236, pl. 16; Co. Lit., § 247, note; McKee v. Straub, 2 Binn. 3; Herr v. Herr, 5 Barr 431. The plaintiffs must prove their title: 5 Bacon's Abr. 296; 1 Washb. Real Prop. 428. The plaintiff must be seised at the issuing of the writ: Adams v. Ames Iron Co., 24 Conn. 230; Clapp v. Bromagham, 9 Cowen 561; Stevens v. Enders, 1 Green (N. J.) 271; Gilman v. Stetson, 4 Shepley 126; Blanchard v. Brooks, 12 Pick. 56; Griggs v. Peckham, 3 Wend. 436. The recitals are not binding on any persons not parties or privies: Morris v. Vanderen, 1 Dall. 67; Penrose v. Griffith, 4 Binn. 231; Dean v. Connelly, 6 Barr 239; Greenl. Evid., § 23, note 1. There can be no estoppel of one party unless the other is equally estopped: Herman on Estoppel 251; Allen v. Allen, 9 Wright 468. The record of the former partition was pertinent to the issue: 1 Greenl. Evid. §§ 195, 527; Winter v. Walter, 1 Wright 160. Proceedings in partition are in rem: Glover v. Ruffin, 6 Ham. 255; Carwith v. Griffin, 21 Barb. 9; McPherson v. Cunliff, 11 S. & R. 428; Allen v. Hall, 50 Me. 253; Foster v. Abbot, 6 Metc. 299; Edson v. Munsell, 12 Allen 600; Short v. Prettyman, 1 Houston (Del.) 334; Dewitt v. Hervey, 4 Gray 486; Coleman v. Coleman, 7 Harris 100. A judgment in partition is conclusive in Pennsylvania: Miller on Partition 221; Herr v. Herr, 5 Barr 428; Merklein v. Trapnell, 10 Casey 47; Blackwell v. Cameron, 10 Wright 236. A deed is conclusive upon the party executing it, not only as to the very point intended to be effected by the instrument, but also as to the facts recited in it: 1 Greenl. Evid., § 23; Carver v. Jackson, 4 Pet. 83; Jackson v. Parkhurst, 9 Wend. 209; Pentz v. Kuester, 41 Mo. 447. The defendants in error are estopped in equity from contradicting the representations, as to the extent of the Mount Hope estate, made in the partition of 1836 by Edward B. Grubb, through whom they claim: Hill v. Epley, 7 Casey 334; Hicks v. Cram, 17 Vt. 449; Millingar v. Sorg, 5 P. F. Smith 225; Goodman v. Losey, 3 W. & S. 528; Martin v. Ives, 17 S. & R. 364; Baily v. Baily, 8 Wright 274. The special plea raised the question of fact whether the Grubb interest in the Cornwall ore-mines was parcel of the Mount Hope estate, and the determination of that question was for the jury, on the evidence which should be brought before them. These two properties constituted a single tenement: 4 Greenleaf's Cruise on Real Prop. 265, note; Witney v. Olney, 3 Mason 280; Washb. Real Prop. 626; Grubb v. Guilford, 4 Watts 244; Comyns' Dig., title Grant, E. 10; Hill v. West, 4 Yeates 142; Murphy v. Campbell, 4 Barr 480. These properties — the Grubb interest in the Cornwall ore-mines and the lands specified in this action — constituting a single estate, this action cannot be maintained. One tenant in common cannot enforce partition of part only of the common estate. Nor does a conveyance by one tenant in common of his interest in part only of the land thus held authorize a co-tenant to enforce partition of such part against the grantee, leaving the residue of the estate unpartitioned: Bigelow v. Littlefield, 52 Me. 26; Gates v. Salmon, 35 Cal. 576; Sutter v. San Francisco, Id. 112; Harlan v. Langham, 19 P. F. Smith 235; 1 Washb. Real Prop. 428; Duncan H. Sylvester, 16 Me. 388; Miller v. Miller, 13 Pick. 237; Sweeney v. Meaney, 1 Miles 167; Rex v. Rex, 3 S. & R. 538. Partition at common law cannot work complete justice in a case like this. Partition in equity is founded in the judicial incompetency of courts of law to furnish a complete remedy in cases where the title is complicated.

H. M. North and J. L. Reynolds (with whom was C. B. Penrose) for defendants in error.—The interest in the Cornwall ore-banks was incorporeal: Lord Mountjoy's Case, Godbolt 171; Co. Lit. 164, b; Grove v. Hodges, 5 P. F. Smith 504; Gloninger v. Franklin Coal Co., Id. 9; Carnahan v. Brown, 10 Id. 26. The recital in the deed made a primâ facie case; and, although not an estoppel, was evidence of an admission: 1 Greenl. Evid, § 268; Penrose v. Griffith, 4 Binn. 231; Garwood v. Dennis, Id. 314; Allen v. Allen, 9 Wright 473; 1 Stark. Evid. 577; Cumberland Valley R. R. v. McLanahan, 9 P. F. Smith 23; Schuylkill R. R. v. McCreary, 8 Id. 304. Privity denotes both successive and mutual relationship: 1 Greenl. Evid., § 189. A co-tenancy being shown, it continues until the contrary is established: Best on Evid. 342; Best on Presump. 186; Stark. on Evid. 1252.

The opinion of the court was delivered, July 2d 1873, by AGNEW, J.

This was an action of partition by the heirs of Edward B. Grubb, in which the defendant pleaded the general issue and specially that the tract of land described in the declaration as an estate known and called "Mount Hope," does not constitute the entire Mount Hope estate, but a part of it only, and that the undivided one-sixth of three mine-hills, known as the Cornwall ore-banks, have been owned, used and held together with it, constituting one single estate.

This plea the plaintiffs traversed, and raised an issue of fact, whether the undivided one-sixth of the Cornwall ore-banks formed part of the Mount Hope estate. The plaintiffs called for and gave in evidence a deed from Clement B. Grubb to Alfred B. Grubb, dated 29th October 1845, reciting that the Mount Hope estate was then owned in common and equal interests between Edward B. Grubb and Clement B. Grubb. This deed described the same property set forth in the declaration in this case, and in addition thereto conveyed the following mining right, viz.: "Together also with the right, title and interest, so far as the said Alfred B. Grubb's right, under this conveyance, in the said Mount Hope Furnace is interested and concerned, of them, the said Clement B. Grubb and Mary Ann Grubb his wife, to raise, dig, take and carry away, for the use and advantage of said furnace, iron ore, out of and from three certain mine-hills in Lebanon township, Lebanon county, bounded, &c., known and called by the name of the Cornwall Ore-banks, and held as a tenancy in common with the heirs of Thomas B. Coleman and James B. Coleman, deceased, with ingress, egress and regress to and from the said mine-hills and every part thereof, for the purpose only of procuring ore for the said Mount Hope Furnace; but for so long and for such time only as the said furnace can be carried on and be kept in operation by means of charcoal." The plaintiffs rested on this deed, it being admitted they were the children of Edward B. Grubb. The defendant for the purpose of showing that the one-sixth of the Cornwall ore-banks was in fact a part of the Mount Hope estate, then offered in evidence the record of a partition to February Term 1836, between Edward B. Grubb and the other children of Henry B. Grubb, deceased, in which the premises called Mount Hope, including as a part thereof the one-sixth of the mine-hills, called Cornwall Ore-banks, were awarded to Edward B. and Clement B. Grubb. The court rejected this offer and excluded the record. The defendant then proposed to prove that the ore for the use of the Mount Hope Furnace had been exclusively derived from the Cornwall Ore-banks, and that the Mount Hope estate, with these ore-banks, was worth $130,000, but without $30,000. This offer was also rejected, and the court directed a verdict for the plaintiffs upon the evidence.

In consequence of the course the argument took, it has been necessary to state the attitude of the case thus precisely, in order to extricate it from the volume of extraneous matter introduced by the defendant below. I have no doubt that the voluminous history of the title to the Mount Hope estate contained in the paper-books, down to the deed from Clement B. to Alfred B. Grubb, proves that it included the undivided one-sixth of the mine-hills called Cornwall. But this deed separated the interest of Clement B. Grubb in the mine-hills from the remainder of the Mount Hope estate, which passed by his deed to Alfred B. Grubb. By this conveyance he granted to Alfred only a special and limited right or privilege of taking ore for the use of the Mount Hope Furnace, retaining in himself the corporeal estate in the Cornwall mine-hills, which he did not convey. Clement and not Alfred was therefore the co-tenant of Edward B. Grubb in the mine-hills. The court then was right in rejecting evidence of the pre-existing state of the title and unity of the mine-hills with the Mount Hope estate, and in holding that under the deed of 1845, Alfred B. Grubb did not hold these ore-banks in common with the children and heirs of Edward B. Grubb. But it is argued, with much apparent force, this ought not to be, for the law will not suffer so great a wrong to be done to Alfred as to cut off the Mount Hope Furnace from the mines which supply it with ore, thereby sacrificing, according to the rejected offer, $100,000 in the value of the Mount Hope estate, for it is worth but $30,000 without the mines, and the right otherwise would be worth nothing, for his privilege is annexed wholly to the Mount Hope estate. If this be true, then there must be a wrong somewhere under an apparent form of right. But we think the error is in assuming that by the...