Harbin v. Harde

• Citation: 141 Pa.Super. 1,14 A.2d 866
• Decision Date: 19 July 1940
• Docket Number: 146-1940
• Parties: Harbin v. Harde, Appellant
• Court: Superior Court of Pennsylvania

14 A.2d 866

141 Pa.Super. 1

Harbin v. Harde, Appellant

No. 146-1940

Superior Court of Pennsylvania

July 19, 1940

Argued April 25, 1940.

Appeal from judgment of C. P. Allegheny Co., April T., 1938, No 2961, in case of Rose Harbin v. Anthony Harde.

Partition proceeding.

The facts are stated in the opinion of the Superior Court.

Exceptions by defendant to action of master awarding purpart to plaintiff upon her bid dismissed and report confirmed opinion per curiam. Defendant appealed.

Error assigned was the order of the court below dismissing defendant's exceptions.

Judgment affirmed.

Louis L. Kaufman, for appellant.

Allen H. Kerr, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Hirt, J.

The land, the subject of this partition proceeding, was owned by Frank Joseph Harde in his lifetime and on his death descended to his heirs, of whom defendant Anthony Harde was one. The interests of three other heirs, in the land, was purchased on January 15, 1938 by plaintiff Rose Harbin; she was not an heir of decedent and her entire interest in the land was acquired by purchase. The bill, in this her action for partition of the land, was taken pro confesso and a decree of partition was entered. A master was then appointed by the court and in response to the master's rule to accept or refuse the real estate at the valuation placed thereon, to put in bids, or show cause why the same should not be sold, both plaintiff and defendant appeared before the master and each of them accepted purpart No. 1 at the master's valuation of $ 800. The purpart was awarded to neither. Thereupon over defendant's objection, the master called for sealed bids for this purpart from the parties in interest and bids were made by plaintiff and by defendant. Plaintiff's bid of $ 1300 was the higher and the master awarded the purpart to her and made report to the court accordingly. The master's report was confirmed and defendant's exceptions thereto were dismissed by the court in banc. Hence this appeal, in which defendant questions the propriety of taking sealed bids by the master from two parties in interest after each of them had accepted the land at the master's valuation. Defendant contends, also, that the purpart should have been allotted to him on his acceptance at the master's valuation because he is of the blood of Frank Harde, the common source of title, and took title to his interest by inheritance before plaintiff purchased the interests of other heirs.

There is no merit in this latter contention. In partition proceedings in equity under the earlier Acts, "All the parties without regard to age, sex, or seniority of title are .... placed on a footing of equality, so far as it is practicable to do so. Neither can have any undue advantage of the other": Eyerman v. Detwiller, 136 Pa. 285, 20 A. 511. There is nothing in the present Act changing the rule.

Prior to the Act of March 26, 1919, P. L. 26 § 1, 12 PS § 1721, amending the Act of July 7, 1885, P. L. 257 § 2 the power to accept bids in partition proceedings was vested exclusively in the court. Klohs v. Reifsnyder, 61 Pa. 240; Eyerman v. Detwiller, supra; Whitman v. O'Connor, 145 Pa. 642, 23 A. 234. But the 1919 amendment, after directing the master to divide the land into purports and to value the same, specifically provides that the master "shall issue a rule on all parties in...