Barclay v. Kerr

Mr. Justice Gordon delivered the opinion of the court, October 5th, 1885. It is somewhat difficult to understand why this case has been brought up for review. It is admitted that the plaintiffs are the representatives, devisees and heirs at law of Abraham Kerns, and as such represent the one undivided 'half of the land in controversy, and that, in like manner, the defendants, heirs and legatees of Samuel M. Barclay, represent the other undivided half part. The defendants, under the Act of the 5th of February, 1821, made declaration of their wish to hold their purpart together, and the plaintiffs did the like. Thus, there was really no dispute as to title, or as to how the several parties held, and it was agreed that if partition was to be made at all, the land must be divided into two parts only. Where then was the ground for contention, and why could not the court, under the pleadings, have ordered judgment quodpartitio jiat? It is very clear, that under the defendants’ petition for leave to hold their purparts together, the only material question for them was whether or not all persons in interest were joined as plaintiffs; whether any were omitted who might afterwards come in to disturb their, the defendants’, title to the land which might be awarded to them, by an impeachment of the proceedings in partition. The question for them was not whether the plaintiffs had joined with themselves persons who had no interest in their title, for that could in no wise affect the rights of the defendants, but rather whether all who held under Abraham Kerns were joined in the proceedings, and as to this there was no exception. It is thus obvious, that the objections made to the rulings of the court below are of a character so wholly technical, and so void of substantial merit, that they must, for the sake of justice, be disregarded. That a widow is properly a party in a writ of partition, as well in the Common Pleas as in the Orphans’ Court, is settled by the Act of the 29th of March, 1832, and the case of Brown’s Appeal, 3 Norris, 457; it is, therefore, useless to cite to us de [135] cisions that were made prior to that Act, and that now have no binding force. Whether the administrator de bonis non cum testamento annexo was properly joined in the action as one of the plaintiffs, we think it unnecessary to decide, though we so far agree with the counsel for the defendants as to admit that his right so to be joined is very doubtful. The will of Abraham Kerns vested his real estate in his widow and children, and his executors had but a bare power to sell, which they might or might not exercise at their discretion. The power thus conferred on them can scarcely be called a right in land, legal or equitable, such as is necessary to maintain partition, and the 'case of Chew v. Nicklin, 9 Wr., 84, would seem to negative a contrary conclusion, since it was there held, inter alia, that the Act of the 24th of February, 1834, was not designed to break the descent, or to work a conversion of real estate under a naked power of sale. But as we are not now called upon to decide this matter, we abstain from further comment. So far as the exception to the verdict is concerned, it may be disposed of by saying it is irregular, but the irregularity is of such a kind as is amendable under the Act of 1872. “ The jury ■find for tlie plaintiffs the one undivided half part of the lands described in the writ and narr., in severalty,.....and for the defendants the other undivided half of said lauds, to be held bj? them in the same manner.” Of course, it is a contradiction to say that the plaintiffs held the lands undivided with the defendants, and at the same time in severalty. But if we add,before the phrase “in severalty,” the words “to be held," which were evidently omitted by mistake, the error is corrected, or a like correction may be made by striking out the words “in severalty,” and the verdict will then accord with the pleadings and admissions of the parties. The judgment is affirmed.