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LACEY v. MONTGOMERY ET AL. (07/17/56)

July 17, 1956

LACEY
v.
MONTGOMERY ET AL., APPELLANTS.



Appeal, No. 8, Oct. T., 1956, from judgment of Court of Common Pleas of Huntingdon County, Sept. T., 1952, No. 54, in case of Elizabeth Lacy v. Boyd Montgomery and I. Cloyd Taylor. Judgment affirmed.

COUNSEL

Morris M. Terrizzi, with him Henderson & Terrizzi, for appellants.

Samuel H. Stewart, with him Warren R. Yocum, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Woodside, Ervin, and Carr, JJ. (wright, J., absent).

Author: Gunther

[ 181 Pa. Super. Page 642]

OPINION BY GUNTHER, J.

Appellee, Elizabeth Lacy, instituted an action of ejectment to establish title to 193 acres and 72 perches of land in Dublin Township, Huntingdon County. Appellants, Boyd Montgomery and I. Cloyd Taylor, disclaimed title to all of said land except 9.47 acres. Counsel for the parties stipulated of record that the parcel in dispute is the same land which had been condemned by the Shade Gap Railroad Company in 1884 by appropriate proceedings and which, by proper authorization, was abandoned by its successor railroad on December 30, 1947.

[ 181 Pa. Super. Page 643]

The parties involved claim their respective titles from a common source. William Norris et ux., by deed dated July 30, 1852 conveyed a tract of 200 acres, more or less, to James Shered. James Shered died in 1877 seized of this property and by his will devised an undivided one-half thereof to his wife, Hadasah, and the remaining one-half to his brother, Joseph, for life, with remainder to the testator's cousins, William, James, Betsy and Margaret Harper.

In 1884, pursuant to the provisions of the Act of February 19, 1849, P.L. 79, section 10, 67 P.S. section 271, the Shade Gap Railroad Company condemned the 9.47 acre parcel of land in dispute. By deed dated August 18, 1887, the cousins of James Shered conveyed their undivided one-half interest to Hadasah Shered "except so much as has been condemned for use of the Shade Gap Rail Road Company, and the privileges granted said Road, also the lots sold to Dr. Louis Royer and Levi Piper." By deed dated September 9, 1887, Hadasah Shered conveyed an undivided one-half interest therein to N. A. MacDonald with a similar exception or reservation. N. A. MacDonald died seized thereof in 1897 and devised his one-half interest to his children, Hattie (also known as Harriet) Jennie, (who predeceased the testator) Francis C. and Mary McFarland. Hadasah Shered died in 1901, intestate and seized of an undivided one-half interest, leaving to survive her as her only heirs at law Hattie, Francis C. and Mary McFarland, in whom said interest vested. Mary McFarland died in 1929, intestate and seized of her undivided one-third interest, leaving to survive her as her only heir at law, her daughter, Elizabeth Lacy, in whom said interest vested. In 1932, Harriet MacDonald died intestate, seized of her undivided one-third interest, leaving to survive her as her only heir at law, her daughter, Elizabeth Lacy, in whom said

[ 181 Pa. Super. Page 644]

    interest vested. In 1932, Harriet MacDonald died intestate, seized of her undivided one-third interest, and left to survive her as her only heirs at law, Francis C. MacDonald and Elizabeth Lacy, thereby vesting each of said heirs with equal undivided interests in said property. All parties are in full accord up to this point and claim their respective title from this common source.

Francis C. MacDonald, by deed dated March 25, 1932, conveyed for $1.00 to his niece, Elizabeth Lacy, "all the grantor's right, title and interest," inter alia, being an undivided one-half interest in the original tract. The description concluded with these words: "Excepting so much as has been condemned for use of the Shade Gap Railroad Company and also excepting lots sold to Dr. Lewis Royer and Levi Piper." This deed was by general warranty.

The appellee claimed in the court below that this deed divested her uncle of all his right, title and interest in the parcel of 9.47 acres now in dispute, including his reversionary interest or possibility of reverter. The jury so found in her favor.

Appellant, I. Cloyd Taylor, relies upon a subsequent deed given by Francis C. MacDonald, dated February 14, 1951, wherein the grantor, in consideration of $1.00, purported to grant and convey to I. Cloyd Taylor "all of the reversionary interest of the grantor" in and to the 9.47 acres of ground by metes and bounds. In ...


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