Summary
In Hoog et al. v. Diehl, 134 Pa. Super. 14, 3 A.2d 187, we held that where a bill in a partition proceeding did not aver possession by the defendant to the exclusion of the plaintiffs, and the decree did not provide for adjustment of rental value between the parties, and the parties did not agree that the master should act as referee for that purpose, the plaintiffs were not entitled to deduction of rental value from the defendant's distributive share though the chancellor found that the plaintiffs and the defendant each had a one-third interest in the real estate.
Summary of this case from Beck v. BeiterOpinion
October 17, 1938.
December 20, 1938.
Real property — Cotenancy — Rental value of real estate — Recovery of proportionate share — Exclusive possession of one cotenant — Averments and pleadings — Act of June 24, 1895, P.L. 237.
1. Under the Act of June 24, 1895, P.L. 237, section 1, in order that a cotenant may recover from another cotenant in possession a proportionate part of the rental value of the real estate, it must appear that the cotenant making the claim was out of possession and that the defendant was in exclusive possession of the real estate.
2. To recover on the basis of a right created by the statute, the plaintiff must aver the existence of all the facts essential to the existence of the statutory right.
Equity — Partition — Issues — Pleadings — Powers of master — Determination of issues by court — Counsel fees.
3. The bill and answer in a partition proceeding circumscribe the issues, and neither court nor master can enlarge them.
4. In a partition proceeding, the master merely executes the decree of the court after the rights of the parties have been judicially determined; he may not inquire into matters relating to rights which have not been adjudicated.
5. In a partition proceeding, a decree making distribution of the proceeds of sale and charging the defendant for use and occupancy of premises in question for a stated period was modified on appeal, as to the deduction from defendant's distributive share of a rental charge, where it appeared that there was no averment in the bill of either occupancy or possession by defendant to the exclusion of plaintiffs, the adjudication contained no findings of fact necessary to establish plaintiffs' right to a proportionate part of the rental value of the real estate, the decree of the court did not provide for the adjustment of the question of rental value between the parties for the guidance of the master in making his final distribution, and the parties in interest did not agree that the master act as referee for that purpose.
6. Allowance for counsel fees to defendant held properly refused on authority of Biles' Appeal, 119 Pa. 105.
Appeal, No. 169, Oct. T., 1938, from order of C.P. No. 5, Phila. Co., December T., 1936, No. 793, in case of Caroline Hoog et al. v. Sarah Diehl.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and RHODES, JJ. Order, as modified, affirmed.
Equity partition proceeding. Before SMITH, P.J.
The facts are stated in the opinion of the Superior Court.
Decree entered ordering partition of property, defining interests of parties, and referring cause to a master to divide and partition the real estate. Final report of master filed. Exceptions to report by defendant dismissed and report approved, opinion by LAMBERTON, J. Defendant appealed.
Errors assigned were dismissal of exceptions and entry of order.
Hugh Roberts, for appellant.
Thomas S. Lanard, for appellees.
Argued October 17, 1938.
This appeal is the result of the dismissal of defendant's exceptions to the report of a master in partition proceedings, and the approval of the master's report by the court below. Emil W. Diehl and Elizabeth Diehl, his wife, became the owners in fee as tenants by entireties of premises at 131 E. Westmoreland Street, Philadelphia, Pa., by deed dated January 25, 1912. Elizabeth Diehl died on August 23, 1925. Emil W. Diehl intermarried with one Sarah Jane Shaw. On December 4, 1935, Emil W. Diehl died intestate seized of said premises, and leaving to survive him his wife, Sarah Jane Diehl, and two children by prior marriage, Caroline Hoog and Ida Bradley. The children, on December 7, 1936, filed a bill in equity for the partition of said real estate.
In the bill the widow was named as defendant. The bill averred that Emil W. Diehl died intestate seized of the premises therein described; that he left surviving him as his heirs at law plaintiffs and defendant; that title to the said real estate was vested as follows, one-third interest therein in defendant, and one-third interest therein in each of the plaintiffs; that plaintiffs and defendant held said real estate undivided as tenants in common; and that the plaintiffs were entitled to the partition thereof. Defendant filed her answer to the bill admitting these averments. The chancellor filed an adjudication in which he found as facts those averments in the bill. In pursuance of his findings of fact and conclusions of law he decreed that partition be made of the real estate described in the bill between and among the several parties plaintiff and defendant in accordance with their several and respective interests therein, and referred the cause to a master with authority to divide and partition the real estate. The master filed an interlocutory report recommending that the court make an order that the master make sale of the whole of said real estate at public auction, as the same was not divisible. The court affirmed the report of the master, and ordered him to make sale thereof at public auction. Accordingly the premises were sold for $2,550. The master prepared his final report making distribution of the proceeds of sale. Defendant filed exceptions to this report. Exception was taken to the refusal of the master to allow defendant for counsel fees the sum of $250. An exception was also taken to the refusal of the master to allow defendant the sum of $35 for repairs. The other exceptions relate to the charging of nineteen and one-half months' rental against defendant for use and occupancy of the premises in question at $22.50 per month from the date of the death of her husband, Emil W. Diehl, to the date of the settlement by the master with the purchaser. The master filed a supplemental report dismissing exceptions. Both reports were filed March 30, 1938. Exceptions were then filed to master's supplemental report by defendant, which the court below dismissed, and approved the final report of the master.
Defendant claimed her $500 exemption from funds in her hands as administratrix of the estate of Emil W. Diehl, deceased, and waived any claim for her widow's exemption out of the real estate of her deceased husband. It suffices to say that the matter of widow's exemption and the alleged expenditure for repairs have no foundation in the record, although among the questions involved.
The exceptions may be considered as having raised two questions which were the same as are now before us for review, to wit, (1) counsel fees, and (2) rental charge. An allowance for counsel fees to defendant was properly refused on the authority of Biles' Appeal, 119 Pa. 105, 12 A. 833. See, also, Novy et al. v. Novy, 324 Pa. 362, 188 A. 328.
Our views do not coincide with those of the master and the court below in holding that defendant was chargeable with rent for use and occupancy of the premises from the day of the death of her husband to the day of settlement with the purchaser in the amount of $438.75. To this extent we think the distribution of the proceeds of the sale in partition must be modified. The court below, in our judgment, erred in dismissing the exceptions to the master's finding that defendant was chargeable with the rental value of the premises, and to his action in deducting the proportionate parts of plaintiffs of any rental value of said real estate from the distributive share of defendant. The decree directing partition of the real estate and appointing a master for that purpose did not attempt to authorize the master to find and adjust the rental value thereof. Naturally the matter of rental was not incorporated in the decree and reference; no finding was made by the chancellor as to who was in possession of the premises. There was no averment in the bill in equity as to possession or occupancy. It was entirely barren of any reference thereto, and there was no demand therein for plaintiffs' proportionate part of any rental value of said real estate. The prayer of plaintiffs related only to the division and partition of the real estate, and the procedure to be followed in the event the real estate could not be divided without prejudice to or spoiling the whole. The decree of the court conformed with the prayer in the bill and the facts found. See Act of July 7, 1885, P.L. 257, as amended by the Act of March 26, 1919, P.L. 26. Hence it was not within the province of the master to make a finding of rental value and reduce defendant's distributive share accordingly. He was limited to making the partition as directed. The master merely executes the decree of the court after the rights of the parties have been judicially determined. Lincoln v. Africa, 228 Pa. 546, 548, 77 A. 918.
The Act of June 24, 1895, P.L. 237, § 1, 68 P. S. § 101, gave to tenants in common who have been out of possession the right to recover from those who have been in exclusive possession their proportionate share of the rental value of the real estate held in common. Dorrance v. Ryon, 35 Pa. Super. 180, 184. This act further provides that in case of partition of real estate held in common the parties in possession shall have deducted from their distributive shares of such real estate the rental value thereof to which their cotenant or tenants are entitled. See Lancaster v. Flowers, 208 Pa. 199, 204, 57 A. 526. The Act of 1895, supra, has changed the common law rule that there could be no recovery by one tenant in common out of possession from his cotenant in possession of a share of the rental value of the property, without proof of an agreement to pay the same. See Kline v. Jacobs, 68 Pa. 57; Enterprise Oil Gas Co. v. National Transit Co., 172 Pa. 421, 33 A. 687; Cornelius v. Cornelius, 104 Pa. Super. 455, 457, 160 A. 150; Lipschutz v. Lipschutz, 124 Pa. Super. 380, 385, 188 A. 556. But exclusive possession is a prerequisite to the right of the tenant in common not in possession to recover from the tenant in possession his or her proportionate share of the rental value of the real estate for the time such real estate has been in the possession of the other.
The right of one out of possession to recover his proportionate part of the rental value of the real estate from the cotenant in possession is statutory, and the latter is only liable because he was in possession of the premises to the exclusion of the other cotenant. For plaintiffs to be entitled to a share of the rental value of the premises sold in partition, it must appear that plaintiffs were out of possession, and that defendant was in exclusive possession. The statute is not automatically operative. To recover on the basis of the right created by the statute plaintiffs must aver the existence of all the facts which the statute has by its terms made essential to the existence of the statutory right. Plaintiffs' bill in equity made no averment that defendant was in possession, and that they were excluded. Defendant's answer admitted the averments set forth in the bill; there was no admission of what was not pleaded. The bill and answer circumscribed the issues, and neither court nor master could enlarge them.
It is argued on behalf of plaintiffs that, the chancellor having found without any exception thereto that plaintiffs and defendant each had an undivided one-third interest in the real estate, therefore, defendant, who owned said real estate in common with plaintiffs and occupied the same, must pay rent for it. To this argument we repeat that (1) there was no averment in the bill of either occupancy or possession by defendant to the exclusion of plaintiffs; (2) the adjudication contained no findings of fact necessary to establish plaintiffs' right to a proportionate part of the rental value of the real estate; (3) the decree of the court did not provide, after findings of the necessary facts, for the adjustment of the question of rental value between the parties for the guidance of the master in making his final distribution; (4) the parties in interest did not agree that the master act as referee for that purpose. See Palethorp v. Palethorp et al., 194 Pa. 408, 45 A. 322; Dunshee v. Dunshee, 234 Pa. 550, 556, 83 A. 422; Lincoln et al. v. Wakefield et al., 237 Pa. 97, 107, 85 A. 133; Burkley v. Burkley et al., 266 Pa. 338, 342, 109 A. 687.
We find no basis for the master's assumption of the right to inquire into the rental value of the property and make a corresponding deduction from the defendant's distributive share of the proceeds of sale.
The schedule of distribution should be corrected by the elimination of any rental charge against defendant, and thereafter distribution of the net proceeds of sale made in accordance with the respective interests of the parties entitled thereto. With this modification the order of the court below approving the report of the master is affirmed. Costs are to be paid as follows: plaintiffs two-thirds, defendant one-third.