Feather v. Strohoecker

The opinion of the court was delivered by Gibson, C. J. This action is brought to dispossess the defendant of land, which she claims to hold in common with the plaintiffs. A larger tract, of which the land in dispute is part, was held by John Garber, her father, in common with John Strohoecker the plaintiffs’ grantor. Garber died intestate, and in pursuance of a petition by one of his sons, the Orphans’ Court awarded a writ of partition and valuation of his estate, without requiring it, as ought to .have been done, first to be separated from the estate of Strohoecker by act of the parties or an action at the common law. The inquest made partition between Strohoecker and the heirs of Garber, in the first place, by assigning the lower part of the tract to the former, and then executed the writ on the residue, as the several estate of the intestate. That the Orphans’ Court should have sanctioned the act of the Sheriff and inquest in making a preliminary partition, as the foundation of what was to follow, is not a little surprising. It is not easy to imagine, how any one but the heir or representative of an intestate, could be made a party to a partition in the Orphans’ Court. In the case of a tenancy in common by purchase,the judgment that partition be made, the application within a year to open it or make 'a new partition, the mode of producing equality of partition, or of yesting the title, the appointment of guardians ad litem, in short all the parts of the process, are peculiar to the courts of common law, and confided exclusively to the Supreme Court and the Common Pleas; from the benefit of which, to say nothing of the constitutional right of a trial by jury, the party ought not to deprived by any thing less than an express statute. On the other hand, the proceeding in the Orphans’ Court without provision for personal service or publication of notice to the surviving tenant, or for determining whether he held in common with the intestate, or for charging a sum on either purparty for owelty of partition, or in case the land cannot be divided, for deciding between the surviving tenant and the representatives of the dead one, which side shall take the whole, and many other matters, which, though perfectly manageable in the courts of common law, involve interests and estates too multiform and complicated to be embraced by the proceed-, ing in the Orphans’ Court, which is adapted exclusively to the case of a tenancy in common by descent. The partition between Strohoecker and the heirs of Garber, therefore,seems to have been originally void for want of jurisdiction; but taking for granted that the parties confirmed it, or rather made q yalid partition'in accordance [508] with it, by taking possession and exercising acts of exclusive ownership, on the the principle of Ebert v. Wood, 1 Binney, 216, a question arises whether it was not avoided by the subsequent eviction of a part of one of the purpartys. This question is of easy solution. Every partition, as well as every exchange, implies not only a warranty at the election of the party, but a condition entire, (he breach of which gives, an entry into the whole; with this difference, however, that a voucher* to warranty of the part evicted, affirms the partition by the acceptance of a compensation, while^ an entry for the condition broken defeats it. If, then, the whole or any less estal.q of freehold be evicted, in all or any part of a particular purparty, the partition may be avoided in the whole whether it be of a manor that was entire, or of parcels that were several. As if A. being seised in fee of one acre in possession, and of another expectant on an estate for life, disseise the tenant for life and die; a partition of these two acres between his two daughters, will be avoided by the entry of the disseise. Viner, Partition, 2 pl. 5, 6; and the same law is laid down 1 Inst. 174. So it is said that one parcener cannot enter into her part again without the consent of the other, yet if a stranger enter into lief purparty by an older title, she may enter with the other and compel her to make a new partition. Bro. Par. pl. 34. Again, after eviction of an estate of freehold from a parcener who has a bad title as to the. whole or a part, she may enter and avoid the partition as to the whole or a part. Co. Lit. 208: and the same law was held in Bustard’s case, 4 Rep. 121, b, on the authority of 15 E. 4, 3, and 42 Ass. 2 2; and the principle of the Earl of Pembroke’s case was affirmed while the opinion of Cavendish, that partition shall remain,though an estate for life or in-tail were evicted, was denied. Such, then, being the rule, and ihe party entitled to enter being already in possession, an entry to give her the benefit of the condition, was unnecessary; as was held in Hamilton v. Elliott, 5 Serg. & Rawle, 375, where the doctrine on the subject was particularly examined. By the eviction of part of the purparty allotted to Garber’s heirs, therefore, the parties were remitted to their original rights; and these were not varied by their action on the covenant of Grant, from whom the original tenants derived the estate; inasmuch as recourse to that, was entirely consistent with the original tenancy. In respect to another point in the cause, the court charged, that if the defendant’s husband came iqto possession under his father, (one, of tho original tenants in common,) she would be bound to deliver the possession to the plaintiffs, who are grantees of the father’s reversion. But she also, -was a child of one of the original co-tenants, and in the absence of other proof, there is a presumption that she and her husband came in under both. On the death of her fath [509] er, then, to what did she succeed? Not only to a portion of his estate, but to his character of landlord, in which, as she could not surrender the possession to herself, she was entitled to retain it as an accessory of her newly acquired ownership, at least so far as was consistent with the nature of her estate, and the concomitant rights of her co-tenants. The parties, then, stand in point of right as if no partition had been made or under-tenancy created, each being entitled to possession in common with the rest according to the quantum of his estate. Judgment reversed and a venire de novo awarded,