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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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wait so long, but should proceed under the 36th section of the act
on the application of any lineal descendant.


85 SUPREME COURT [Dec. Term,

[Lewis v. Pratt. |

" Upon the whole we think the view taken by the Supreme Court
in the case before referred to, Spangler t>. Rambler, an unobjec-
tionable one as applied to our laws relating to Orphans' Courts ;
although we do not fully appreciate the force of all the reasoning
of the late learned chief justice. It appears they took or rather
recommended a course somewhat analogous to that which would
have been required by a Court of Chancery, and instead of send-
ing a party to law to establish his title by a single ejectment, they
would content themselves with the decision of the court and jury
upon an issue of devisavit vel non. The Chief Justice says, ' if
an issue had been sent from the Register's Court and the writing
exhibited as the will of Michael Rambler been determined to be no
will, it would have been the duty of the Register's Court to have
taken for granted that Rambler died intestate, and the Orphans'
Court ought to have proceeded to a partition of his lands.' In this
case such an issue was sent, and a verdict and judgment had against
the paper now set up as a will.

" Rule discharged and Inquisition confirmed."

On the llth of November 1836, Robert Lewis appealed from the
decree of the Orphans' Court.

In this court the following exceptions were filed :

1. The said real estate is held, occupied and possessed by
Robert Lewis, the aforesaid appellant, solely and in his own right
as devisee of the said Azariah Lewis, deceased, and adversely to
the claim of the said petitioner and appellee; and is therefore
not subject to partition under the authority of the Orphans' Court.

2. The court erred in discharging the appellant's rule to show
*8fil * cause wn j tne return to the writ of partition should not be

J set aside, and confirming the said inquisition.

3. The Orphans' Court had no jurisdiction of the matter.

Mr. Lewis, for the appellant.

The three exceptions raise but one question, and that is,
whether the Orphans' Court has any authority to proceed to a
partition of land, where the title set forth in the petition is denied,
the claim resisted, and possession held adversely and under another

Partition, in its primitive sense, signified a division by copar-
ceners or co-heirs of lands which had descended to them. Allnatt
on Partition, p. 1 ; Booth on Real Actions, 244. If the party
stood not in the relation of co-heirs, they could not by the com-
mon law compel partition. The writ devised for the purpose of
enforcing division set forth, that the parties held " together anil
undivided," so many acres of land, &c., and was applicable only
where there was such holding together. The preamble of the


[Lewis v. Pratt.J

several statutes passed to extend the remedy, shows its nature and
object. Rob. Dig. 217, 224. It is a proceeding in rem, for the
purpose of giving to the tenants their respective severalties, and
has reference rather to the corporeal permanent tangible subject,
than to the status or interest of the owner ; it is to divide lands
and tenements amongst those who hold by unity of possession at
least : let that unity be destroyed, and there is nothing upon which
the remedy can operate. The title, indeed, is a legitimate object
of inquiry in partition, only as it affects the possession. The title,
the right, or the interest, is not the object of division, but only
the land, house, cattle, or other subjeot to a permanent nature, of
which there is a common possession, a holding in fact together.
If partition were any thing else than division, it would be partition
no longer.

The nature and character of the proceeding has not been in any
way essentially changed by our acts of assembly, but it remains
the same in every distinguishing property, as in the English com-
mon-law courts. In the Common Pleas, it is applicable to cases
of joint tenancy and tenancy in common ; but in the Orphans'
Court, like the writ de familia hersiscunda of the Roman law, it
applies to parceners only, holding, as they do under our intestate
laws, as tenants in common. The writ of inquest is a writ de par-
titione facienda, both in form and effect ; it commands the sheriff
to go with his jury upon the lands described in the writ, and to
divide them among the persons named as heirs and representatives
of the decendent ; and it differs from the common-law writ only in
not requiring a division when the property would be prejudiced by
it and directing a valuation. The estate comes within the jurisdic-
tion of the Orphans' Court by virtue of the intestacy of the ances-
tor, under whom the ^parties entitled to partition claim as r^oy
coparceners, and is subject to division among them in that

So long as that relation is maintained, the seisin of one is the
seisin of all, and the possession of one is constructively the posses-
sion of all. But in case of ouster by one co-heir of the others, the
relation which subsisted between them is destroyed, and that con-
structive possession ceases to exist ; they then no longer hold
together, and they have nothing in common of which the party
ousted can demand division. The rights of a person in possession
cannot be disregarded, whether he is in rightfully or wrongfully,
nor can he be dispossessed without being afforded an opportunity
of asserting his title.

In the case before the court, it is admitted, that Robert Lewis
holds adversely to the appellee under a title which he is ready to
maintain. The facts are sufficient to constitute an ouster (Fisher
v. Taylor, Cowper 217), and that ouster takes the case out of the

87 SUPREME COURT [/>*?. Term,

[Lewis P. Pratt.]

jurisdiction of the Orphans' Court ; the appellant is now sole
seised, and the appellee is, if you please, disseised. There is not
one foot of the land, constituting the subject of the present litiga-
tion, that he can call his own, or exercise any acts of ownership
over, without being guilty of a trespass. There is a right inter-
posed between him and his alleged heirship, which must be over-
come, before he can come into the Orphans' Court ; he must first
vindicate his claim to the character he assumes, by a recovery in
ejectment, by disproving the testacy of Azariah Lewis, of whom he
declares himself a representative. To allow him the prerogative of
a co-heir, and to issue a writ of inquest of partition on his applica-
tion, is to attempt to confer upon him a relation which does not
belong to him, and involves a denial of the right of the appellant
without even a hearing.

The proposition that the ouster of one coparcener by another,
destroys the relation between them as to the subject of the ouster,
and renders the writ of partition inappropriate for any purpose,
seems to be so self-evident upon principle, as to make it a matter
of surprise that it should ever be doubted ; yet, there is authority
upon the point if it be needed. "If one coparcener," says Lord
Coke, " disseise another ; during this disseisin a writ of partition
does not lie between them, because they do not hold together and
undivided." Co. Litt. 167, a. ; Clapp v. Bromagham, 9 Cowen
530, is to the same effect.

In equity, a commission to make partition will not be granted,
where the defendant denies the plaintiff's right; but the chancel-
lor will send him to law to make out his title. Allnatt on Parti-
tion 100, 101 ; 4 Kent's Com. 364-5 ; Wilkin v. Wilkin, 1 John.
Ch. Ill ; 4 Randolph 493. He also referred to Martin v. Martin,
17 S. & R. 433, 4, 5, and Galbraith t>. Green, 13 Id. 93.

He referred to the case of Spangler v. Rambler, 4 S. & R. 192,
as having been cited by the appellee, in the argument below, and
endeavored to show several marks of distinction between that
*881 * case an< ^ the one before the court. He said that the point
J of that case was, that the court would not compel partition
while the question of will or no will was undecided, and contended
that all that is there said, as to when the court ought to proceed to
partition, is extra-judicial. Besides, it might be remarked, that at
the time this dictum was pronounced, the understanding of the
profession as to the law relative to the effect of decrees of the
Orphans' Court, was different from what it is now. Such decrees
were then held to be inquirable into ; now, they are conclusive
upon all matters within the jurisdiction of the court. The case of
Snyder v. Snyder, 4 Binn. 483, had been decided four years before ;
that of Iluckel v. Phillips, 2 S. & R. in 1815, and Kohn v. Fed-
derhoff, was decided at the same term with Spangler v. Rambler.


[Lewis v. Pratt. J

McPherson v. Canliffwas six years later, and even after that decis-
ion an act of assembly was considered necessary to put the question
as to the conclusiveness of such decrees entirely at rest.

The same act that declares the Orphans' Court a court of record,
with all the qualities and incidents of a court of record at common
law, and that its proceedings and decrees in all matters within its
jurisdiction, shall not be reversed or avoided collaterally in any
other court, also provides that the partition made by the Orphans'
Court shall be "firm and stable forever ;" and in case of valuation
and an acceptance by any one of the heirs and payment to the rest,
that they shall be " forever barred of all right or title to the land."

The appellant, therefore, being made a party to these proceed-
ings, though against his will, the decree will be binding upon him
and his heirs, and conclusive as to the title ; and should the
appellee take the property at the valuation, and tender to the
appellant his share of the valuation money, he might recover in
ejectment upon the basis of these proceedings, the will to the con-
trary notwithstanding. If then, a judgment on an issue of devis-
avit vel non, authorize the Orphans' Court to proceed to partition,
and to decree, that " the same be firm and stable forever," such
judgment is conclusive as to the real estate, and is equivalent to
two concurring judgments in ejectment : an effect, which I hazard
nothing in saying, C. J. Tilghman had not the remotest intention
of ascribing to it in Spangler v. Rambler, and which cannot be
imputed to it, without overruling the late case of Smith and Bon-
sail, and judicially legislating into existence a rule of law, as yet
unheard of in Pennsylvania.

The provisions by our acts of assembly for partition by the
Orphans' Court are not applicable to cases of adverse possession,
nor were they designed by the legislature, as a means for deciding
a question of title. The very state of circumstances which they
assume as a ground for commencement, is here denied, to wit, the
intestacy of the person of whom the petitioner claims to be a repre-
sentative, and the tenancy in common of the parties named in .the
petition. The intestacy remains to be proved, and though it were
*proved, the tenancy in common does not exist, as long as pgg
the ouster continues ; the petitioner must have these two ^-
points established in his favor, before the Orphans' Court can pro-
ceed. Where there is a possession adverse to the alleged heirs, the
very first step of the proceeding involves a violation of civil right.
By the writ of inquest the sheriff is required to go upon the land,
and, if possible, to divide it among the parties named in the writ.
With what propriety can the Orphans' Court command him to do
this, at the suggestion of a party who cannot himself put his foot
on the same land, without being liable as a trespasser? Is not a
man's house his castle, his close, his domain, and as such protected


89 SUPREME COURT [Dec. Term,

[Lewis v. Pratt.]

by the law from the invasion of strangers ? Our possessory rigats
are but nominal, if liable to be thus interfered with.

If this case were in the Common Pleas instead of the Orphans'
Court, the appellant as defendant would be entitled to be heard
upon his plea of non tenet insiraul ; and that plea would be sus-
tained by proof of his adverse possession, involving a destruction
of the only unity on which the right of partition depends ; the
plaintiff could not show, by way of rebutting the force of such
proof, his right of possession : nor would the verdict and judgment
on the issue of devisavit vel non, be evidence. Ejectment would
be the proper action to enforce that right ; and he must resort to
it before he can claim partition. Though the form of proceeding
in the Orphans' Court is different, the substance is the same, and
we are entitled to the benefit of the plea, that we do not hold
together with the appellee, and to the advantage of the .evidence
which we have adduced to sustain it, as much as though the writ
had issued from another court.

Mr. Kittera, contra. There was no actual ouster in this case.
It is settled that ouster will not be presumed from declarations of
parties. In fact, there was no evidence against the possession of
the petitioners. In chancery, in proceedings in partition, there
must be a disseisin to bar the petitioner. Wilkins v. Wilkins, 1
Johns. Ch. Rep. Ill; 4 Kent's Com. 365, 3d edition. The act
of 1794 does not seem to require that the parties should be in
actual possession. Spangler v. Rambler, 4 S. & R. 192. The
decree of the Register's Court was conclusive upon the appellant.
It is settled by a long train of authorities, that such decree can
only be controverted in ejectment. It must be considered as bind-
ing upon the Orphans' Court.

Mr. Sergeant, in reply.

The appellant is in possession, and could not bring ejectment.
There is a difference between the action of partition in the common-
law courts and the proceedings in chancery for that purpose. In
the former it is the judgment that makes the partition. Chancery
#Q(IT *decrees conveyance, and can impose terms. The proceed-
ings in the Orphans' Court resemble those at common law
in this respect. By resorting to this method of partition, the peti-
tioner would deprive the appellant of his right of trial by jury,
upon the question of the validity of the will. It is an elementary
rule, that a person in actual peaceable possession, cannot be turned
out of it without legal process in ejectment after an opportunity of
being heard on the question of ownership. Was Lewis in posses-
sion ? There was actual adverse possession, by one claiming to be
the sole owner. But, it is said there was a constructive possession,


[Lewis v. Pratt.]

upon the death of the testator, in all who were entitled under the
intestate law. That (if there could be a constructive where there
was an actual adverse possession) would depend upon the question,
whether the father died testate or intestate ; it would follow the
right, and the right would depend upon whether there was or -was
not a valid devise. If the former, then the appellant was in pos-
session. Upon this question he has a right to be heard. The
decision of the Orphans' Court was that the appellant could not be
heard at all. Actual ouster is not necessary. Possession, with
denial of title, is sufficient. This court may either stay proceedings
until the party out of possession shall bring ejectment, or may
direct an issue. The former is the better course.

The opinion of the court was delivered by

KENNEDY, J. It is admitted that Azariah Lewis died seised of
the land in question ; but whether he died intestate as to it or not,
is a matter of fact about which the parties are at issue ; and cer-
tainly it is a question which ought to have been settled and known
how it was, by the Orphans' Court, before it proceeded to decree a
partition of the land. For if A. Lewis died after having disposed
of the land by a will, duly executed by him, he could not therefore
be said to have died intestate as to it, whatever he might have done
as to other lands of which he was seised at the time of his death.
And unless he did die intestate as to it, the Orphans' Court had
no jurisdiction over it, so as to entertain a petition for partition
thereof among the heirs of A. Lewis : and to proceed therein as
directed by the act of 1794, to make a decree to that effect.

Robert Lewis, the appellant here, appeared in the Orphans'
Court below, after the petition praying the partition was presented ;
and made known to the court by his affidavit, which was filed with
the clerk of the court, that he claimed the whole of the land exclu-
sively under a devise made of the same to him by Azariah Lewis ;
that he was in the actual possession thereof, and held and claimed
it exclusively under the devise ; and therefore objected to the court's
proceeding to make a partition or valuation thereof, as in cases of
intestacy. This objection, if true, was certainly an insuperable
one *to the court's making or causing to be made, a parti- r*9i
tion of the land. We therefore think, that the Orphans'
Court ought, before it proceeded any further in the matter, to have
had the truth or falsity of the objection ascertained, by means of a
jury, under the advice and direction of a proper tribunal. This
should have been done, by making an order for the trial of a
feigned issue, in the Common Pleas of the county, to determine
the validity of the will ; or for the bringing of an ejectment by the
petitioner, and those claiming as heirs of the deceased, against the
appellant claiming as devisee, (seeing they were out of the posses-

91 SUPREME COURT [See. Term,

[Lewis v. Pratt]

sion of the land, and he was in exclusive possession thereof) ; in
order to test the validity of the writing set up by him as a will,
and at the same time, if he failed to do so, to enable them to recover
and obtain possession of the land in common with him. And
indeed as the appellant has the sole and exclusive possession of
the land, and denies that those claiming to have partition made
of it, have any title or claim thereto whatever, this latter order
would, it appears to me, have been the most appropriate ; because
it would, in case the appellant failed to establish his right as devisee,
have put the petitioner, and those joined with him in claiming title
to the land by descent, in the possession of it with the appellant ;
so that they would then be all holding it together, and the disseisin
of them by the appellant be removed, which has also been made an
objection here ; and it has been argued that as long as they do not
all hold together, no partition can be made, or decreed by the
Orphans' Court. But in answer to all this, it is contended that
the verdict and judgment on the feigned issue, directed by the
Register's Court, when a caveat was entered against a probate of
the writing as a will, under which the appellant claims, settled the
question of Azariah Lewis' dying intestate, in favor of his heirs at
law ; and it would seem that the Orphans' Court so considered it :
and therefore proceeded to make a final decree, according to the
prayer of the petitioner, disregarding the objection of the appel-
lants. That the decision on the feigned issue did determine finally
and conclusively, the intestacy of Azariah Lewis, as to his personal
estate, must be admitted ; but certainly not as to his real. The
writing cannot properly be considered as having been offered for
probate before the register with a view to settle the title or rights
under it, as to the real estate of the deceased ; nor yet for the pur-
pose of having any action in relation thereto. It was done merely
for the purpose of settling and determining the rights of those con-
cerned in the personal estate. It would seem to be hard, there-
fore, to make such a decision binding and conclusive, upon those
asserting rights under the writing as a will, without any previous
notice that the decision should be so considered thereafter, in any
subsequent proceeding to be had or instituted in regard to the real
estate. As well might it be so held in case of a subsequent eject-
*q.?i raent brought by the heirs disinherited by the writing, as in
* a *subsequent proceeding, like the present, for having par-
tition of the land devised ; but in the case of an ejectment being so
brought against the appellant it is admitted, and indeed too well
settled to be controverted, that the decision had on the issue devi-
savit vel non, which was against the writing being the will of A.
Lewis, would not have been conclusive upon the appellant. And
it may be added also, that it would have placed him in no worse
situation than he would have stood in, if it had never been pre-


[Lewis v. Pratt.]

sented for probate, and there had been no such decision upon it.
For in either case, before he could prevail, he would have to adduce
evidence, and to prove, at least by two witnesses, to the conviction
of the jury, that it was the last will of A. Lewis. It is also cer-
tain, that one decision against him in an ejectment brought for the
land, without any previous order of the Orphans' Court, directing
it to be instituted for the purpose of testing the validity of the
writing as a will, and as preparatory to having a partition made of
the land, by the decree of the Orphans' Court, would not be con-
clusive upon him ; for he would have a right to bring an ejectment
ag-ainst the recoverers in the first suit, and to try the question of
will or no will again. Then why should the trial and judgment
upon the issue devisavit vel non, which had no relation to the
land, but was had for the purpose of settling the question of testacy
or intestacy, as to the personal estate of the deceased merely, be
held by the Orphans' Court, to be conclusive upon the appellant
in a proceeding commenced against him therein, to have partition
made of the land, as in case of intestacy ? It would be unjust, if
it were for no other reason than this, that it would not be recipro-
cal in its effect, and equally binding and conclusive in all cases on
both parties ; for in case of the will's being established upon the
trial of such feigned issue, in favor of the devisee, he could make
no application to the Orphans' Court, for any decree or order that
would confirm his title under the devise to the land, upon the faith
and credit of such decision, and preclude all future claim of the
heirs at law to it, so that they, notwithstanding the decision was
against them upon the feigned issue, could afterwards at any time,
before twenty-one years adverse possession should become a bar to
their claim to the land, proceed against the devisee by ejectment
and recover the land or their proportion of it, as the heirs of the
deceased, unless he satisfied a second jury, by the production of a
superior weight of evidence, of the validity of the will. But if the
decision as here, were to be against him, then to permit the heirs
at law, as such, claiming the land, to apply immediately thereafter,
to the Orphans' Court, and upon the faith of the decision to obtain
a decree making partition thereof, without affording a further
opportunity to the devisee, by means of a jury to establish his
right under the will to the land, would be giving to those claim-
ing as heirs, a very unequal advantage over the party claiming as

*VVe therefore think it right, as well as reasonable and r*gg
just, that the decision had upon a feigned issue, by the
order of the Register's Court, for the purpose of proving or setting
aside the writing exhibited as a will, in order to settle and adjust
the rights of those claiming the personal estate of the deceased,

93 SUPREME COURT [Dec. Term,

[Lewis p. Pratt]

should not be regarded, or considered by the Orphans' Court after-
wards, upon an application for a partition of the real estate, if
objected to, as settling the question of testacy or intestacy, as to it.
But in order to determine this question, so that the Orphans'
Court may either proceed to make the partition, or to dismiss the
petition presented for that purpose, so as the question shall be
decided the one way or the other, it is necessary that the Orphans'
Court should direct an issue to be formed, or a suit to be brought
in the Common Pleas, and there is to be tried by a jury, under the
advice and direction of that court, so as to have it finally settled,
whether the deceased died intestate as to the land in question, or
not. This will not only afford to each party, an equal chance of
having justice done, but being previously apprised of the conclusive

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) → online text (page 10 of 68)