Day v. Allen

73 A. 456, 224 Pa. 385, 1909 Pa. LEXIS 801

• Court: Supreme Court of Pennsylvania
• Decided: April 12, 1909
• Docket: Appeal, No. 310
• Status: Published

Opinion

Per Curiam,

This was an ejectment to recover an undivided interest in land sold under proceedings in partition, instituted in 1893. The defendant was the grantee of the purchaser at the master’s sale. Before the proceedings were begun, the plaintiff had been adjudged a lunatic and his estate was in the hands of his committee, who represented his interest in the partition. The case was tried by the court without a jury. It appears from the facts found by the court that on the plaintiff’s restoration to reason he took possession of his property, settled with his committee, and has since exercised exclusive ownership in respect to the land allotted to his committee in the partition; that, “he has not reconveyed, nor repaid, nor restored, nor offered to do so,” and that, “in the ejectment he virtually asks that the partition be ignored so far as it operated to transfer his interest to his coheirs, while it is sustained so far as it operated to transfer their interest to him. ”

The plaintiff sought to recover on the ground that the partition was void because of irregularities in the proceeding. The irregularities pointed out were the failure to comply strictly with the equity rules of 1865, then in force. The principal irregularities were that the bill was not printed nor served, nor was there indorsed on it a notice to appear and answer, nor did it set forth the interests of the parties; that after the entry of a decree pro confesso, the case was not placed on the equity argument list before the appointment of a master; and that an unprinted amendment containing more than 100 words was filed and not served. How unsubstantial in point of merit these technical objections were appears from the fact that the bill filed bore an indorsement signed by all parties defendant, admitting service, consenting to a decree pro confesso and the appointment of a master without further delay or notice. The court held that the irregularities were curable and were cured by the concurrence of all the parties in interest. In this there was no error. There were no defects in the proceeding that would invalidate the deed.

The judgment is affirmed.