Appeal, No. 193, March T., 1950, from decree of Court of Common Pleas of Somerset County, 1950, in Equity, No. 3, in case of Sally (Sallie) Gnagey Christner v. Karl (Karll) Christner. Decree affirmed.
Leland W. Walker, for appellant.
Archibald M. Matthews, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
Section 1 of the Act of May 13, 1925, P.L. 649, provided "That whenever any husband and wife now or hereafter holding property as tenants by entireties have been divorced either of such tenants by entireties may bring suit in the court of common pleas sitting in equity of the county where the property is situate against the other to have the property sold and the proceeds divided between them" (Italics supplied). The foregoing provision, with the words "now or" eliminated therefrom, was re-enacted by the Act of May 10, 1927, P.L. 884 (68 PS § 501), which at the same
time repealed the Act of 1925 but included a clause specifically "saving proceedings instituted under [the] provisions" of the 1925 Act.
The parties to the instant suit, a wife and her husband, acquired real estate as tenants by the entireties in 1926 and were divorced in 1949. Thereafter, the wife instituted this proceeding against her former husband under the above-recited statutory authority to obtain partition of the real estate so held by them jointly. The defendant-husband filed preliminary objections to the complaint on the ground that the court was without jurisdiction of the matter for the assigned reason that the property had been acquired by the parties prior to the enactment of the Act of 1927 and that the Act of 1925, having been repealed by the Act of 1927, was no longer of any force or effect. The learned judge of the court below entered an order overruling the preliminary objections with leave to the defendant to answer over. From that interlocutory order, the defendant appealed. Inasmuch as the material facts were undisputed and the question involved is purely one of law, we agreed to hear argument on the appeal as if it were from a final decree in partition in favor of the plaintiff on the pleadings, provided that the defendant assented in writing to the entry of such a decree. The defendant has so stipulated of record and a decree will accordingly be entered nunc pro tunc in the court below. We pass then to a consideration of the case on the merits.
The question here involved is whether real estate acquired by a husband and wife as tenants by the entireties subsequently to the Act of 1925, but prior to of Act of 1927, can be partitioned where the divorce of the parties occurred after the effective date of the Act of 1927. The answer to that question must be in the affirmative. The Act of 1927 was a substantial re-enactment of the prospective scope of the Act of 1925.
Accordingly, the substantive law of the earlier statute, thus carried forward, has been continuously in force since the date of its original passage. In Haspel v. O'Brien, 218 Pa. 146, 149, 67 A. 123, Mr. Chief Justice MITCHELL, speaking for this court, quoted and applied the pertinent general rule of construction that "Where a statute is repealed and its provisions are at the same time re-enacted by the repealing act, the effect according to the great weight of authority, is that the earlier statute is not in fact repealed, but its provisions continue in active operation, so that all the rights and liabilities incurred thereunder are preserved and may be enforced." The rule as adopted in Haspel v. O'Brien, supra, has since been reiterated and followed by this court (see, e.g., Erie v. Piece of Land, 339 Pa. 321, 324-325, 14 A.2d 428; and Bell v. Abraham, 343 Pa. 169, 173, 22 ...