Bishop's Estate , 200 Pa. 598 ( 1901 )

Opinion by

Mb. Justice Mitchell,

The court had no jurisdiction to make the decree appealed from. The controversy reduced to its essentials is this: Bishop, the grantor, conveyed the land to trustees for a church, with a reversion to himself or his heirs should the church cease to use the building and abandon the land. The church split into two factions each claiming to be the true body, and one of them passed a resolution of abandonment. Thereupon one of the heirs filed this petition for partition. The petition was fatally defective if demurred to, first for failure to aver possession in the heirs, and secondly for failure to aver abandonment by the trustees, in whom the legal title was. There was no demurrer however, but the trustees filed objections by way of answer, setting up first, title in themselves, regularly deduced from the grantor, secondly, actual possession, and thirdly, a denial of abandonment. The court then proceeded to determine that the church party desiring to abandon, was the true body and thereupon decreed partition.

As already said this was outside of the court’s jurisdiction. The appellants were in possession, under claim of title which was clearly adverse. Non tenent insimul. The appellee alone, or all his coheirs together could not re-enter and oust the trustees, on their contingent reversion. Their title depended on the fact of abandonment, and must be established in ejectment before partition would lie.

The learned court below relied on the decision in Schlichter v. Keiter, 156 Pa. 119, that the so-called liberal party was the true church body. It may prove to be so when properly adjudicated, but it is res inter alios acta in this case. The appellants have not had their day in court on the question and their possession cannot be disturbed until they have had it.

It is said that the orphans’ court will look into a title set up to defeat partition, so as to see if it is really adverse. Within certain narrow limits this may be conceded. But it is not the' rule. Welch’s Appeal, 126 Pa. 302, and McCorkle’s Estate 184 Pa. 629, are mainly relied on. But both of these were admittedly cases of tenancy in common. In the first there was a claim of adverse possession and ouster by one cotenant, but no evidence produced which could be allowed to go to a jury in ejectment. In the other case the claim was for a larger interest in the common property than the petitioner had averred in the claimant, but no evidence at all was produced to support it. In both the principle was applied that in partition in the orphans’ court where the title and possession are prima facie in common, a-mere claim of adverse title by one party will not be sufficient to suspend the proceedings, but there must be either some defect pointed out in the petition, or some facts set up showing an adverse title or adverse possession. Unless some such facts appear in the pleadings, the court will look into the evidence so far as to see that there is a real question of title or possession in controversy, and not a mere naked assertion: Wi&tar’s Appeal, 115 Pa. 241.

In the present case not only is the petition defective, but both title ánd possession of appellants are adverse. Even in ejectment plaintiff could only recover by proof of abandonment.

Order reversed. All costs to be paid by appellee.