Eyerman v. Detwiller

Opinion, Mr. Justice Sterrett : The subject of this action of partition is a lot, and building thereon, known as the Able Opera House, which was conveyed in fee by the Merchants’ Bank of Easton to John Detwiller, John Knecht, Jesse Lines, and John Eyerman, Sr., as tenants in common. In 1883, Eyerman died intestate and without issue, and his undivided one fourth interest in the property descended to his grandson and only heir at law, John Eyerman, the plaintiff. Commissioners appointed by the court found that the property could not be divided, and they appraised the same at $60,000. On return of the rule to accept or refuse, etc., the defendants claimed priority of title, and insisted that under § 14, act of May 5, 1841, they were entitled to the last bid. The plaintiff objected, claiming that the proper practice, under the act of April 22, 1856, was for all the parties, who desired to offer more than the valuation, to submit their respective bids in writing to the court before any of the bids were announced; but the court held that, by reason of their priority of title, the defendants were entitled to bid last. The plaintiff then presented a sealed bid, offering $5,000 aboye the valuation returned by the commissioners. That bid was opened and read aloud by the court, and, notwithstanding plaintiff’s objection, a bid in writing by the defendants offering to give $5,050 over the valuation was received, and thereupon the property was allotted and decreed to them, they paying to the plaintiff, after deducting costs, one fourth of $65,050, the in [292] creased valuation. Exceptions, filed by plaintiff, to the action and final decree of the court having been dismissed, this appeal was taken. The controlling question presented by the specifications of error is whether a proper construction of § 10, act of April 22, 1856, does not require all bids to be submitted to the court in writing before any bid is announced. We are clearly of opinion that it does. In the Orphans’ Court, the right to take at the appraisment is in the order of birth, preferring males to females: Act of March 29,1832, § 37. In the Common Pleas, the act of April 11, 1799, directed that, “in case each of the persons interested, or more than one of them, shall be willing to take the lands and tenements at the appraised value, .... the court shall determine to whom they shall be conveyed.” But that was changed by the act of May 5, 1841, which provides that, in the Common Pleas, “ the court shall allow the holders of the title of the land, or parts thereof, to take the same, or parts thereof, consecutively, according to the dates of their respective titles, legal ór equitable.” Then came the act of April 22, 1856, which effected a radical change in the theretofore established practice in both courts, by providing: “ In all cases of partition of real estate, in any court, wherein a valuation shall have been made of the whole, or parts thereof, the same shall be allotted to such one or more of the parties in interest who shall, at the return of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor above the valuation returned; but, if no higher offer be made for such real estate, or any part thereof, it shall be allotted or ordered to be sold as provided by law.” While the section above quoted does not repeal the acts of 1832 and 1841, it has the effect of restricting their operation to cases in which all the parties in interest decline to exercise the right of offering to take some or all of the purparts at a price above the valuation. When the parties are properly before the court, in obedience to the rule to accept or refuse, it is the first duty of the court to give each of them an opportunity of presenting one bid, in writing, for each separate purpart, in its order, if more than one, and no bid should be announced, or in any manner disclosed, until those present and desiring to do so, have handed in their bids on the purpart then being acted [293] on. Then the bids should be opened by the court or by its direction, and the purpart bidden for forthwith announced to the party who offers therefor the highest price over the valuation. If two or more of the parties desire to submit a joint bid, there appears to be nothing in the act to forbid it, and, if their joint bid is the highest, the purpart should be awarded to them jointly. Each purpart, if there is more than one, should be taken up in its order, and disposed of in like manner. After all the parties, respectively, have thus had an opportunity of making a written offer for each purpart, and one or more purparts remain for which no bid was offered, they should be allotted according to the provisions of the prior acts of 1832 or 1841, as the ease may be, and, if not taken at the valuation, an order of sale may be made. This is an outline of the practice now almost universally recognized in our courts, and we think it accords with the letter, as well as the spirit of the act of 1856. All the parties, without regard to age, sex, or seniority of title, are thus placed on a footing of equality, so far as it is practicable to do so. Neither can have any undue advantage of the other. If properly conducted, the practice operates as a safeguard against the evils of under-valuation, trickery, etc., which the act of 1856 was intended to remedy. In Klohs v. Reifsnyder, 61 Pa. 240, Mr. Justice Agnew, speaking for this court, said: “ The purpose of the act certainly was to enable the parties to correct unfairness or under-valuation, and make the premises command the highest price. In this view a second bid would be but fair. But, on the other hand, overbidding leads to unfairness, and incites parties to a series of feints in bidding, to enable one to overreach the other. Selfish or even malicious pertinacity may force one who must have the property to pay more than it is worth, or greater wealth may, for unfair purposes, bid it away from another, whose circumstances require him to get it. In addition to this, such an interpretation would convert the court room into an auction, where the property would rise by small bids until it hád reached the highest price that interest or pertinacity could forbe it up to. We are of opinion, therefore, that the true interpretation of the act of 1856 warrants only a single offer in writing, and that the court can compel all parties to hand their offers in together, or permit them to seal them up until the court shall order them all to be opened.” [294] While the clear and comprehensive construction of the act of 1856, in the opinion above quoted, may be broader than the decision of the question then before the court required, we have no doubt as to its entire accuracy, and think it sustains appellant’s contention that preference cannot be recognized when a bid higher than the valuation is offered. The act evidently warrants only a single offer, and that must be in writing. The court should require all offers to be submitted before any of them is announced, and then the right to take belongs to the party whose offer over the valuation is the highest. The action of the court in permitting the defendants to bid, after the offer submitted by the plaintiff was publicly announced, gave them an undue advantage over him, never contemplated by the act. If they desired to bid, they should have been required to submit their offer in writing, before his was announced or they knew what his bid was. It is unnecessary to consider other questions that were brought to our notice on the argument. In view of what has already been said, they become immaterial. Decree reversed at the defendants’ costs, and record remitted for further proceedings in accordance with this opinion.