Plants vs. Abercrombie & Co.

tween them, and the trial of this case in no way prejudices the rights of either one of them as against the other; and further, as to which of the defendants shrall take or have the lumber in the yard that remains unsold, is a matter with which the plaintiff in this case has nothing to do and is a matter which is left wholly for adjustment by the defendants among themselves.

And now, July 3rd, 1909, motion for judgment non obstante veredicto and motion for new trial are overruled and judgment will be entered upon the verdict of the jury in favor of the plaintiff upon payment of the jury fee. BY THE COURT. [Reported by Harry Russell Myers, Washington, Pe.]

Hartley vs. Bell et al.

Partition in Equity- -Life tenants- -Remainderman— -Valuation of their estates-Orphans' Court-Acts April 11, 1835, June 7, 1885, February 24,

1834.

The proper proceeding, where partition is either by action on the law side of the Court of Common Pleas or by bill on equity side and the life tenant's possession is exclusive, is to appraise the land at its present value, subject to the life estate, where the life tenant does not ask or consent to a reversion of his life estate, and if he does so consent then to appraise the life estate and the estate in remainder separately giving the value of each.

If the life tenant's possession is exclusive the purchaser can buy the estate and pay presently for it but his possession will be deferred until the life estate is extinguished and the proceeds of the sale will be distributed among the remaindermen.

If the life tenant consents to a sale of his life estate and the land is taken by remaindermen at its valuation, the value of the life estate will be paid to the life tenant, or if the land is not taken at the appraisement but sold and sells for the same amount as it was valued at, then the life tenant will take the value of his estate and the remaindermen will take the value of their estate.

In re Exceptions to Master's Report.-No. 1815 In Equity, C. P. Washington Co.

A. M. Linn, for plaintiff.

Irwin & Wiley, for defendants.

MCILVAINE, P. J., July 1, 1909.-At common law the owners of an estate in land in remainder after a full life estate are not entitled to a writ of partition while a life tenant is living and in exclusive possession of the land. All partitions of real estate in the interests of remaindermen in such cases in Pennsylvania are by virtue of statutory enactments. There are two systems of partition which prevail in the state. One is under statute which gives to the Orphans' Court jurisdiction in certain cases. The other is in the Court of Common Pleas under different statutes which provide for partition by actions of law on the law side of the court and bills on the equity side of the court. In the Orphans' Court the theory seems to be that the estate of the life tenant in such cases should be turned into money and that he should have the use of the money or legal interest thereon in place of possession of the land during his life. The theory in the Common Pleas appears to be that the partition among remaindermen should be made subject to the estate and possession of the life tenant, where his possession is exclusive, unless the life tenant shall join and ask that his estate be valued and that he be awarded its value in case the land is allotted to the remaindermen or out of the proceeds if the land is sold. The proper proceeding therefore where the partition is either by action on the law side of the court of common pleas or by bill on the equity side, and the life tenant's possession is

Hartley vs. Bell et al.

exclusive, is to appraise the land at its present value subject to the life estate where the life tenant does not ask or consent to a conversion of his life estate, or if he does so consent, then to appraise the life estate and the estate in remainder separately, giving the value of each. In the first instance, if the land is sold the purchaser can buy the estate and pay presently for it, but his possession will be deferred until the life estate is extinguished and the proceeds of the sale will be distributed among the remaindermen. If the second method is pursued and the land is taken by a remainderman at its valuation, the value of the life estate will be paid to the life tenant and the value of the estate in remainder will be paid to the remaindermen, or if the land is not taken at the appraisement but sold and sells for the same amount as it was valued at, then the life tenant would take the value of his estate and the remaindermen would take the value of their estate. In case the land was taken on bids beyond the value of the aggregate appraisement of the life estate and the estate in remainder, the excess of the bid would be divided between the life tenant and the remaindermen in the proportion that the value of their estates sustained to each other. In case the land was sold at public sale by trustee or by a master, at a sum different from the valuation, then the purchase price would be divided between the life tenant and the remaindermen in the same proportion as the value of the life estate sustains to the value of the estate in remainder. This procedure we think is the proper procedure to be had where land is partitioned by the Court of Common Pleas under the Act of April 11, 1835, and the Act of June 7, 1885, giving the court of equity jurisdiction in proceedings in partition where the life tenant's possession is exclusive. The Act of February 24, 1834, that provides what shall be done in case of sale of real estate under proceedings in partition in the Orphans' Court has nothing whatever to do with a proceeding in the common pleas like this.

We are therefore of the opinion that the master in this case has erred in his recommendation that the interest on the value of the estate in remainder belonging to Kate Bell and John May, defendants, should be paid to J. F. Hartley during his life and that the principal sum should be paid to Kate Bell and John May at his death. There being no appraisement of the life estate of J. F. Hartley made by the master, the court must infer that his life estate was not converted but remains in the land and that the sale was subject to his life estate. To give him interest on the value of the estate of the remainder during his life and to also keep possession of the land during his life under the reservation of that estate when the land was sold, (it presumably having been sold subject to his life estate), would be allowing him to not only enjoy the land during his life but to enjoy the interest on the value of the land also. If in fact the land was not sold subject to the life estate but the whole estate was sold, then the master erred in not first having appraised the life estate and the remainder estate separately, so a division of the purchase money could have been made in proportion or in accordance with that appraisement.

The best that we can do here is to make a decree on the presumption that the land was sold subject to the life estate, because it could not be sold any other way without the record showing that the life tenant consented that this estate should be converted into money, and the record does not show any such consent. If, however, this would work any injustice to the parties in interest, the only other course to be pursued would be to set aside the sale so made and recommit the case to the master and allow him to receive a written consent of the life tenant to have his life estate converted into money and then appraise the two separate estates, as we have already indicated and allow the case to proceed in the manner hereinbefore set out.

The decree of this Court entered on April 5, 1909, approving the report of sale by the master has in it a provision that the amounts payable to the said Kate Bell and John May shall be retained by the purchaser and charged upon the land described in the deed; the interest thereon shall be paid annually on the first day of April to the said J. F. Hartley during his life and at his

Hartley vs. Bell et al.

death the principal of said charge shall be paid to the said Kate Bell and John May or their heirs. This in our opinion was ultra vires and should have had no place in the decree confirming the sale, first because the Act giving the court of common pleas jurisdiction of partition proceedings where there is a life estate with exclusive possession in the life tenant and remaindermen does not authorize any such provision to be made in a decree confirming such a sale, and in the second place such a provision would more properly come in a decree of distribution rather than in a decree confirming the sale. The master in preparing such a decree and the Court in signing it no doubt were misled by the fact that they were both more familiar with the practice in the Orphans' Court which is in accordance with the provisions of the decree than they were with proceedings in the Court of Common Pleas where an estate is partitioned among life tenants and remaindermen. Indeed, we may say we have searched diligently and have found nowhere a case exactly like the one at bar.

On the question of costs, it is only necessary to say that where a partition proceeding of this kind is made subject to the estate of the life tenant, the costs should be first paid out of the proceeds of the sale before distribution is made. In case, however, where it is sold discharged of the life estate, then the costs are paid out of the money realized and would necessarily be apportioned between the life tenant and the remaindermen and would diminish each of their shares of the purchase money in proportion to that valuation.

And now, July 1, 1909, this case came on to be heard upon exceptions filed to the master's report, whereupon, upon due consideration thereof, it is ordered, adjudged and decreed that Kate Bell and John May, the defendants in this proceeding, are entitled presently to the sum of Ninety-nine (99) Dollars each and that the said J. F. Hartley, the life tenant, is not entitled to the interest one the distributive shares of the said Kate Bell and John May; and that the exceptions herein filed so far as they are in accordance with the opinion herein filed are sustained, and where otherwise are overruled.

BY THE COURT.

[Reported by Harry Russell Myers, Washington, Pa.]

Epstein vs. Mason.

Real estate

-Contract of sale-Specific performance

Tender of-Waiver.

-Purchase money

Specific performance of a written contract to convey real estate, in the absense of fraud, accident, mistake, or undue influence will be enforced in equity and a revocation of the contract by the respondent is a waiver of the necessity of the complainant proving a tender of the purchase money.

In equity-Bill to enforce specific performance.

C. P. No. 4, Allegheny County.

Louis F. Adelman, for plaintiff.

W. D. Grimes, L. W. Mendenhall, for defendants.

No. 188 Third Term, 1909.

COHEN, J., October 31, 1908.—This bill is filed to enforce specific performance by defendant of an alleged contract for the sale of the real estate therein described. The defendant's answer admits the signing thereof, but that it was signed by him through mistake and misunderstanding, and further alleging fraud and undue influence, without specification. From the pleadings and testimony we ascertain the following

FINDINGS OF FACT.

First. That on the 13th day of March, A. D. 1908, the said defendant, Michael Mason, of the City of Pittsburg, County of Allegheny and State of Pennsylvania, entered into an agreement of sale with the plaintiff, Max Epstein, of the same place, whereby the said Michael Mason agreed that he would on or before April 15, 1908, by deed of general warranty, convey to the said Max Epstein, his heirs and assigns, in fee simple, clear of all encumbrances, all that certain lot of ground situate in the Seventh Ward of Pittsburg fronting twenty (20) feet on Elm street and extending back forty-five (45) feet, more or less, to a line, and having thereon erected a two-story frame dwelling, known and designated as No. 120 Elm street, which said property is more particularly described in deed of Hill Burgwin, attorney in fact for Jane O. Morgan, to Michael Mason, dated March 3, 1880, and recorded in Deed Book Vol. 425, page 509, as follows: Beginning on the westerly side of Elm street at a distance of one hundred and thirty (130) feet, more or less, southerly from Franklin street and on the corner of lot of the heirs of Thomas Wilson, extending thence in front or width southerly on Elm street, twenty (20) feet to lot of James May; thence westerly at right angles to Elm street along May's lot forty-five (45) feet, more or less, to lot conveyed by party of the first part hereto to Ellen Carroll by deed dated March 3, 1880; thence by Ellen Carroll's lot northerly twenty (20) feet to lot of Wilson heirs; thence easterly by said lot of Wilson heirs forty-five (45) feet to Elm street, the place of beginning.

Second. The said agreement further provides that the purchase money shall be two thousand six hundred ($2,600) dollars, payable as follows: Ten ($10) dollars on the signing of said agreement; said Max Epstein to assume a certain mortgage for one thousand ($1,000) dollars in favor of the Peoples Savings Bank of Pittsburgh, on which said mortgage nine hundred twenty-five ($925) dollars remains unpaid, and the balance or one thousand six hundred sixty-five ($1,665) dollars to be paid in cash on delivery of deed.

Third. Exhibit A, attached to complainant's bill, is a true copy of the said contract.

Fourth. That complainant and respondent furnished the attorney who drew the agreement of sale with all the data as to the terms thereof and with a description of the several encumbrances existing on the said property.

Fifth. That the price agreed upon was previously discussed by the parties to this bill and was satisfactory to both. No advantage of any character was

Epstein vs. Mason,

exercised by the complainant over the respondent which induced the contract, nor was there any disability, physical or mental, preventing respondent from a full, conscientious, and perfect understanding of what he had done in the premises or was about to do under the contract.

Sixth. The testimony discloses that the objection of respondent to deliver the deed is based on regret entertained by him and his family for having entered into the contract at the price of $2,600; respondent's objection being predicated almost entirely on the objections of the children to the contract in question.

Seventh. The incidents related by defendant and his witnesses do not indicate the existence of any fraud, accident, mistake or misunderstanding nor the exercise of undue or any influence by plaintiff over defendant.

Eighth. Respondent admits in his answer, and it is shown by the testimony, that he notified complainant that he repudiated the contract within a few days after its execution, and that he notified complainant that the deed would not be executed by reason of the inadequacy of consideration.

Ninth. That the contract was read to defendant before signing and that he understood the contents thereof.

Tenth. That under all the testimony the consideration agreed upon was not inadequate. That the assessed valuation of said property for city purposes in 1908 was $2,100.

Eleventh. That defendant has refused to execute and deliver the deed called for by the contract.

Twelfth. That the parties to the bill had been negotiating frequently prior to the execution of the contract of sale.

Thirteenth. That ten dollars was paid on account of the consideration money. Fourteenth. That complainant, according to respondent's admission in his testimony, "always acted honorably" to him.

Fifteenth. That the date fixed between the parties for the closing of this transaction was April 15th, and the place therefor the office of complainant's attorney, Mr. Adelman; at which time and place complainant was present prepared to perform his part of the contract and had in his possession the amount of money required thereunder; of which time and place for so doing the respondent was duly notified by two successive letters prior to the said date. That the true character of said letters are indicated by Exhibits B and C, attached to the bill in this case.

Sixteenth. That whilst the testimony discloses the respondent to have been a man of 78 years of age and not physically very strong, he was nevertheless mentally and physically competent to enter into and execute the same, and that he was in no sense disabled from so doing.

Seventeenth. That at the time plaintiff called on defendant at his home requesting defendant to accompany him to his (plaintiff's) attorney for the purpose of putting their agreement in the form of a written contract, defendant voluntarily accompanied him with a perfect understanding of what he was doing, and when leaving the house when the plaintiff's daughter asked respondent where they were going plaintiff unhesitatingly informed her of the purpose of his visit and the object of their departure.

Eighteenth. That there is no evidence of any character afforded by the testimony that the complainant's attorney in any way or manner was guilty of any fraud or misconduct whatever.

CONCLUSIONS OF LAW.

First. That specific performance should be awarded in this case.

Second. That in the absence of any proof of fraud, accident, mistake, misunderstanding, or undue influence, the respondent is bound to perform his contract.

Third. That the notice of revocation of the contract as given by respondent to complainant was a waiver of the necessity for a tender of the purchase money. OPINION.

There is no proof in this case to establish the essential averments of de