George H. Hoffman, Pittsburgh, for appellant.
Frank P. Krizner, Butler, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
In this appeal the appellant wife challenges the validity of a decree of "partition" of real estate entered by the trial court on the complaint of the husband. On this record we agree with appellant that at this juncture the basis for a decree directing sale of the property and division of the proceeds was wanting. We therefore reverse.
James Shoup, the plaintiff-appellee, and his wife Donna J. Shoup, the appellant, acquired the real estate in question in 1969, after their marriage, by a conveyance to them jointly as tenants by the entireties. The property, located in Butler County, became the marital residence, and continues to be the residence of the wife.
The complaint alleges that the parties were divorced in 1972 and that they now own the property as tenants in common, and prays that it be partitioned. The defendant's answer denies that the parties have been validly divorced; it asserts to the contrary that the plaintiff obtained the divorce decree by exerting undue influence over the defendant. Under the heading of "New Matter and Counterclaim" the defendant additionally avers that her husband had entered into an agreement with her to convey to her the property in question, occupied by defendant and the two children of the marriage; that the plaintiff had relied upon his obligation to make this conveyance in prior judicial proceedings in order to reduce the amount of child support he was obligated to pay to the defendant; that the husband, without the wife's permission, had taken from the premises personal property which had been owned jointly by the parties; that the defendant was guilty of laches in asserting his claim; and that the defendant had been forced to borrow $2,000 to meet mortgage payments on the property. The answer prayed for dismissal of the husband's complaint,
specific enforcement of the husband's alleged promise to convey the real property to the wife, partition of the personal property held jointly by the parties,*fn1 and money damages.
The plaintiff filed two preliminary objections to the answer. The first was in the nature of a demand for a more specific pleading on the ground that the particulars of the alleged agreement to sell the property to the wife were not set forth nor was a copy of the agreement, if in writing, attached to the pleading; the second was in the nature of a demurrer to the defense of laches in the bringing of suit on the ground that the plaintiff had alleged no harm resulting from the delay.
After having heard oral argument, but without having held an evidentiary hearing or having ruled on the plaintiff's preliminary objections, the chancellor directed that the property be sold and the proceeds divided, and appointed a trustee for that purpose, all as provided by the Act of May 10, 1927, P.L. 884, 68 P.S. § 501.*fn2 ...