Stover v. Stover

• Citation: 180 Pa.St. 425,36 A. 921
• Parties: STOVER v. STOVER.
• Decision Date: 22 March 1897
• Court: United States State Supreme Court of Pennsylvania

36 A. 921
180 Pa.St. 425

STOVER
v.
STOVER.

Supreme Court of Pennsylvania.

March 22, 1897.

Appeal from court of common pleas, Bucks county; Harman Yerkes, Judge.

Bill by Jacob Stover against Isaac S. Stover for an account of partnership transactions and partition of land to which plaintiff and defendant had taken deeds as tenants in common.

36 A. 922

From a judgment dismissing exceptions to and confirming the report of an auditor appointed to make distribution of the proceeds of the land which was sold under direction of the court, plaintiff appeals. Affirmed.

Hugh C. Stover and E. O. Michener, for appellant.

E. Wesley Keeler and Henry Lear, for appellee.

WILLIAMS, J. In April, 1864, the plaintiff and defendant entered into a verbal contract of co-partnership. This partnership was dissolved in April, 1879. During its continuance, the partners purchased several parcels of real estate, and took title thereto as tenants in common. These deeds were duly recorded soon after the lands were purchased. In 1888 the plaintiff filed a bill praying for an account of the partnership transactions, and a partition of the land so held by the partners as tenants in common. The defendant did not deny any of the allegations of the bill except that which charged that he was indebted to the firm. The account was taken, and a balance of over $4,000 was found due from the defendant, and, for want of any evidence showing how the real estate could be divided, a sale of it was recommended by the master, and made under the direction of the court. The proceeds of this sale were referred to an auditor for distribution. The rival claimants before the court below and in this court are the plaintiff, whose claim rests on the decree showing the defendant to be indebted to the firm, and the land to be, as between the parties, partnership assets, and a judgment creditor of the defendant, whose judgment was originally entered on the 7th of April, 1885, but was not revived until the 10th of April, 1891. The position of the plaintiff is that, if it be conceded that the creditor had priority over him by virtue of his judgment entered in 1885, yet this priority was lost by the failure to revive within five years, and his claim under the decree of February, 1892, took precedence, because the pendency of the cause in equity resulting in that decree was notice of the plaintiff's demands as a lis pendens. The judgment creditor replied that this pendency of the lis was not notice, because it...