Ballantine's Appeal

The opinion of the court was delivered, by Read, J. This is a bill in equity filed by the plaintiffs against N. Ballantine and others, for the partition of certain real estate in Chartiers township, Allegheny county. N. Ballantine filed an answer admitting all the averments in the bill, with the exception of a part of those contained in the 15th and 18th paragraphs. On the 26th of September 1868, replication was filed, and on motion of plaintiffs’ attorney by consent, S. H. Geyer, Esq., appointed master and examiner on the issues raised by the answer of N. Ballantine. On the hearing before the master, Robert Robb, Esq., was examined as a witness on behalf of Mr. Ballantine. The claim made by Mr. Ballantine in the 4th paragraph of his answer for the interest of Charles P. Quigley in the Mc-Keesport lot, was abandoned by his counsel, there being no evidence to support it. The 2d and 3d' paragraphs of the answer deny that David J. Perkins is the owner of one-seventh part of parcel B, and two-ninths of one-seventh (two sixty-third parts of parcel C), and aver that they were conveyed by said Perkins to said defendant Ballantine by deed dated the 18th of November 1864. This deed conveys in! the premises and habendum one undivided ninth part of land, which the master finds is neither parcel B nor parcel C, and that the general language used does not in any manner describe the interest of Perkins in those parcels. The testimony of Mr. Robb, if admissible, proves no mistake in the deed to be corrected. The master therefore, for reasons in which we agree with the court below to be correct, finds that there is no conflict of title, but that the averments in the bill are true, and the statements in the 2d and 3d paragraphs of the answer entirely unsupported by the deed and other evidence produced on the part of the defendant Ballantine, and we therefore affirm the decree and dismiss the, appeal at the costs of the appellant. In doing this, we express no opinion as to whether this is such a final [183] decree as that an appeal lies from it, the point not being made, and we presume it to be the object of both parties to have the question finally settled at this time.