Fink & Young, Harold B. Fink, Jr. Coudersport, for appellants.
John A. Duvall, Coudersport, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result. Jones, C. J., did not participate in the consideration or decision of this case.
The parties to this litigation, the plaintiff-appellee and the seven defendant-appellants, are fellow participants in a venture known as the Twin Oaks Hunting Camp. As such, they are the owners of one hundred acres of land in Potter County, Pennsylvania which comprises the camp property. One of the group, Wilbur H. Rice, having apparently become disenchanted with the arrangement, brought the present action in equity to compel a partition of the tract among the eight owners. After the pleadings were closed Rice moved for, and the trial court granted, judgment on the pleadings.*fn1 This appeal ensued.*fn2 We shall reverse.
A motion for judgment on the pleadings is in the nature of a demurrer, and all the opposing party's well pleaded allegations are to be taken as true. Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174 (1966); see also Bureau of Child Care v. United Fund of Phila., 416 Pa. 617, 207 A.2d 847 (1965). Thus the facts in a case where such a motion is made are to be ascertained from the undenied averments of the pleadings, including exhibits properly attached thereto. Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 243 A.2d 389 (1968); Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966); Nederostek v. Endicott-Johnson Shoe Co., 415 Pa. 136, 202 A.2d 72 (1964).*fn3
In the case at bar those pleadings disclose the followinv relevant facts: The parties in 1969 acquired title to the property involved by a deed under which they hold title in equal undivided shares as tenants in common. The plaintiff, Wilbur Rice, has requested the other owners to purchase his interest in the property, and they have offered him the sum of $200 therefor, a sum he apparently found unacceptable. The $200 offer was made "pursuant to the intent set forth in" the deed, which contains the following recital:
"The Purpose of this transfer is to establish equal ownership and privileges among the members of the Twin Oaks Hunting Camp and to set certain conditions of membership as follows:
1. No member may give, sell or assign his interest to anyone without the full consent of all the camp members.
. When a member is deceased, his heir or heirs shall receive a cash payment of Two hundred ($300.00) [sic] within six months after death, which sum shall be his full equity in the property hereby transferred. This two hundred ($200.00) dollar payment shall be ...