Whitman v. O'Connor

Opinion, Mb. Justice Green : The plaintiff in this action of partition is the owner of one undivided third part of the land in question, and the defendant is the owner of the remaining two thirds. The inquest divided the land into three purparts of exactly the same size each, but did not value any of them; and they also allotted one purpart to the plaintiff, and two purparts to the defendant. The inquisition was returned to court on January 26,1891, and the same day exceptions were filed, and a motion was made by defendant to strike off the inquisition. On April 13, 1891, the rule was discharged, but the court set aside the allotment made by the inquest, and granted a rule on all the parties to appear on the twenty-seventh of April, to accept or refuse the purparts. On the twenty-seventh, the parties appeared, and the plaintiff filed a sealed election to accept purpart A, as set out in the inquisition, and the defendant filed sealed bids offering to accept purpart A at seven hundred dollars, purpart B at four hundred dollars, and purpart C at two hundred dollars. On August 24, 1891, the court entered a decree allotting purpart A to the plaintiff, and purparts B and C to the defendant, disregarding the defendant’s bids, and taking no action in reference to them. From this decree the defendant appealed to this court, and the principal contention is that the inquisition was illegal because no valuation of the purparts was made. Errors are assigned also to the allotment of purpart A to the plaintiff, and to the refusal of the court to allot purpart A to the defendant on his bid. The chief question is on the omission of the inquest to value the purparts. In the return of the inquest nothing whatever is said as to the value of the purparts. They simply say that the property can be divided by giving purpart A to the plaint [648] iff, and purparts B and C to the defendant, and that this will make an equal division of the tract of land. As that means only an equal division of the land into three pieces of the same size, we cannot know whether the three pieces were of equal value in money, and there is nothing on the record to show what the relative value of the purparts was. The defendant’s bid for purpart A was more than for the two other purparts combined; and if this can be regarded as a ffair estimate of the value of all, it follows that the plaintiff, although the owner of but one third of the property, has obtained, by the decree of the court, more than one half o'f the value of the tract. This seems to be an unjust result, and we must consider whether the mode in which it has been accomplished is in accordance with the law. It will be observed that, although there are three purparts, there are but two owners. Strictly, therefore, the land has not been divided into as many purparts as there are owners; and as the inquest did not value either the whole of the land, or any of the purparts, the court below could not know whether they were giving more value to one than to the other. It is very plain that if this proceeding were in the Orphans’ Court, the inquest would have been obliged to make a valuation of the purparts, under the thirty-ninth section of the act of March 29, 1832, P. L. 202. That section directs that, when the estate cannot conveniently be divided into as many shares as there are parties entitled, the inquest shall appraise the respective purparts into which they may divide the estate. By the fifth section of the act of April 7,1807, 4 Sm. L. 400, it was provided that, where equal partition in value could not be made of any share or purpart, the inquest should have power to equalize the purparts by valuing them respectively, and to award that any share or shares should be subject to the payment of such sum of money as should be equal to the difference in value of any other share or purpart. By § 2, act of April 11, .1835, P. L. 200, it was provided generally that, in executing the writ of partition, the sheriff and inquest shall have power to divide the property into such number of purparts 'as shall appear to them most convenient and advantageous, without regard to the number of parties in interest, and to value each purpart. We cannot doubt that, under this act, which applies [649] to all partition proceedings in the Common Pleas, it was the plain duty of the inquest in this case, having made partition into three purparts, there being but two parties in interest, to value each of the purparts. In the case of Dana v. Jackson, 6 Pa. 234, we held that § 14, act of May 5, 1841, P. L. 353, was intended to transfer from the sheriff and inquest to the Court of Common Pleas the power to allot the purparts to the parties entitled. It allowed a preference of choice according to the dates of the titles, but made no declaration or provision on the subject of valuation; and consequently, on that subject the act of 1835 still remained in force. From what was said by Coulter, J., in the opinion in Dana v. Jackson, it is clear that valuation was assumed to be one of the duties of the inquest. He said: “ The act of 1841 leaves to the sheriff and inquest the right to divide into as many parts as in their discretion the estate will admit; the right to value those parts respectively; and, if the estate will not admit of division, the right and duty of valuing the whole.” In' respect to the right of bidding, § 10, act of April 22,1856, P. L. 534, provides “ that 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.” As a matter of course this act applies, not only to such cases as those in which a valuation has been made, but also to all cases in which a valuation should be made in accordance with the requirements of the law. The act of 1835 required such a valuation in this case; and, if it had been made, the right of either or both of the parties to file written bids would have been without question. In determining the practice under this act we held, in Eyerman v. Detwiller, 136 Pa. 285, that all the bids must be submitted in writing to the court before any of them is announced, and the land shall be forthwith awarded to the party who offers the highest price above the valuation. That this is the fair and just method of settling any differences of opinion as to the justice and equality [650] of the valuation, is plainly shown in the opinion of our Brother Sterrett in this case. We are of opinion that the decree must be reversed for want of valuation by the inquest. Decree reversed, at the cost of the plaintiff, and the inquest and all subsequent proceedings set aside.