Kennedy v. Kennedy

• Decision Date: 30 October 1862
• Citation: 43 Pa. 413
• Court: Pennsylvania Supreme Court
• Parties: Kennedy <I>versus</I> Kennedy.

43 Pa. 413

Kennedy versus Kennedy.

Supreme Court of Pennsylvania.

October 30, 1862.

APPEAL from the District Court of Allegheny county. In equity.

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Hamilton & Acheson, for appellant, cited and relied on Story's Eq. §§ 75-6; Act of April 16th 1845, § 6, Purd. 402; Act of 14th Feb. 1857, § 11, Id.; Stockdale v. Ulery, 1 Wright 486; Brightly's Eq. 234; Ireland v. Rittle, 1 Atk. 541; Whaley v. Dawson, 2 Sch. & Lefr. 367; Knight v. Barton, 6 Med. 231; Acts of April 29th 1844, and April 13th 1859, relative to partition in equity; Snively v. Luce, 1 Watts 69; Higgs v. Stimmel, 3 Penna. Rep. 115; Ebert v. Woods, 1 Binns 216; Calhoun v. Hays, 8 W. & S. 127; Miles v. Miles, 8 Id. 135; Long v. Long, 1 Watts 269.

R. & S. Woods, for defendant, denied that the court below had jurisdiction of the subject-matter of the bill, insisting that it was within the jurisdiction of the Orphans' Court: citing the Act of April 30th 1840, Purd. 204; 9 W. & S. 55; 4 Barr 502; Act of 10th April 1849, § 10, Purd. 204; Act of April 14th 1834; Rhoads's Estate, 3 Rawle 420; Merklin v. Trapnell, 10 Casey 42.

The opinion of the court was delivered, October 30th 1862, by STRONG, J.

This is not a bill for partition. On the contrary, it avers that partition has already been made by the agreement of the parties. Its object is rather to obtain a decree for the quiet enjoyment of the land which the complainant alleges became his in severalty by virtue of a former parol partition. Courts of equity have jurisdiction in cases of partition, and, possibly, where there has been long acquiescence and possession under a parol division of lands previously held in common or joint tenancy, equity will quiet the enjoyment of such estates. Such seems to have been the opinion of Lord Hardwicke in Ireland v. Rittle et al., 1 Atkyn's Cases 256. And there are very many cases analogous to bills of peace, in which a chancellor has interfered to quiet the enjoyment of a right, or to establish it by a decree, or to remove a cloud from the title. Indeed, this is one of the well-recognised branches of equitable jurisdiction, though its extent is not clearly defined.

The difficulties in the way of the complainant in this case are found not so much in the jurisdiction of the court as in the failure of proof that there ever was a complete parol partition. Unless there was, the complainant manifestly has no case — no title in severalty, either in law or in equity. It is not enough that the parties agreed to fix a line of division between them, and that they actually ran and marked such a line, if it was also a part of the arrangement that owelty should be adjusted. Fixing the amount of owelty was as essential to the partition as was the adoption of the dividing line. In this case all the evidence as well as the report of the master shows that the farm which the parties held in common was not divided equally in quantity or in value. All the buildings stand upon the part which the complainant claims to have been allotted to him, and it was contemplated by both parties that owelty should be agreed upon and paid. What that should be was,...