Appeal, No. 274, Jan. T., 1950, from decree of Court of Common Pleas of Lancaster County, Equity Docket, No. 10, in case of Keystone State Theatre Company v. Charles F. Widmyer et al. Decree affirmed.
D. Arthur Magaziner, with him W. Hensel Brown, for appellant.
F. Lyman Windolph, with him W. G. Johnstone, Jr. and Windolph & Johnstone, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
In order that partition of several tracts of land may be made in a single proceeding it is necessary that they all be owned in common by the same persons, even though the interest of each cotenant may not be the same in each parcel; in other words, there can be no partition of several tracts of land in the one action unless each of the parties thereto has some interest in
each and every of the parcels. Because of this rule, the court below properly sustained defendants' preliminary objections to plaintiff's amended bill in equity and dismissed it without prejudice.
Plaintiff, Keystone State Theatre Company, alleged in its bill that it was the owner of an undivided one-fourth interest in land (hereinafter referred to as tract "A") situate on the south side of West Chestnut Street between North Queen and North Market Streets in the City of Lancaster, and also that it was the owner of an undivided one-third interest in land (herein-after referred to as tract "B") situate on the west side of North Queen Street between Orange and West Chestnut Streets, in that city. Tracts "A" and "B" adjoin one another, the south line of the former being identical with the north line of the latter. On "A" there are erected one-half of a motion picture theatre and also six shops; on "B" there are erected the other half of the motion picture theatre, a four-story apartment house and store room, and a four-story ware-house. The bill alleged that plaintiff acquired title to its one-fourth interest in "A" on January 7, 1948 and to its one-third interest in "B" on January 3, 1949; that defendant Charles F. Widmyer, by virtue of an agreement made on January 7, 1949 with Margaret C. Kinard, became the equitable owner of an undivided one-fourth interest in "A", and on August 29, 1949 he assigned that interest to defendant Thirty West Broad Corporation, Margaret C. Kinard, by the same deed, conveying to the latter the legal title thereto; and that Widmyer is the owner of an undivided one-half interest in "A" and an undivided two-thirds interest in "B". It therefore appears that the present status of the ownership of tract "A" is as follows: plaintiff a one-fourth undivided interest, defendant Widmyer a one-half undivided interest, and defendant Thirty West
Board Corporation a one-fourth undivided interest, while the present status of the ownership of tract "B" is as follows: plaintiff a one-third undivided interest, and defendant Widmyer a two-thirds undivided interest. The bill prayed that partition of all this real estate be decreed between plaintiff and defendants, and that the case be referred to a master to divide the property among the owners according to their respective interests, or, in case such partition cannot be made, to appraise the value of the real estate, and, if necessary, to sell it in such manner and on such terms as the court may direct, and to divide the proceeds among those entitled thereto. Defendants filed preliminary objections for the reason that the bill showed on its face that Thirty West Broad Corporation had no interest in tract "B", and the rule is that a partition proceeding may not be maintained unless all of the parties are interested in all of the real estate sought to be partitioned.
The rule thus invoked by defendants in firmly established in the law: Small's Appeal, (No. 1), 23 W.N.C. 20, 1 Monaghan 664, 15 A. 767; Swan's Estate, 238 Pa. 430, 439, 86 A. 275, 277, 278; Volkwein v. Volkwein, 332 Pa. 120, 2 A.2d 751. But plaintiff seeks to avoid its application by claiming that the present case falls within an exception thereto, -- also well established by the authorities (see 65 A.L.R. 897 et se.) -- to the effect that one cotenant cannot, by a conveyance of his interest in a portion of the property held in common, prejudice the rights of his cotenants; the grantee or successor of such a cotenant simply steps into the shoes of his grantor, subject to all the rights of the other ...