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ALBERT P. VARGAS v. R.K. BRINTON AND LULA P. BRINTON (10/01/82)

filed: October 1, 1982.

ALBERT P. VARGAS, APPELLANT,
v.
R.K. BRINTON AND LULA P. BRINTON, HIS WIFE. ALBERT P. VARGAS V. R.K. BRINTON AND LULA P. BRINTON, HIS WIFE, APPELLANTS



No. 141 Harrisburg Term, 1981, No. 142 Harrisburg Term, 1981, Appeal from the Order of the Court of Common Pleas of Perry County, Civil Action, Equity, at No. 79-11.

COUNSEL

Walter K. Swartzkopf, Harrisburg, for Vargas, appellant in No. 141 and appellee in No. 142.

David C. Eaton, Harrisburg, for Brinton, appellants in No. 142 and appellees in No. 141.

Brosky, Wieand and Montemuro, JJ.

Author: Brosky

[ 305 Pa. Super. Page 359]

Albert P. Vargas, appellant, brought an action to partition land owned by him and R.K. Brinton and Lula P. Brinton, appellees. The lower court granted the petition and partitioned Vargas' portion of the property, a 1/6 share. Exceptions were filed which were subsequently denied. This appeal followed in which Vargas claims that he owned a 1/4 share in the property and that the trial court improperly limited the partition to a 1/6 portion. The Brintons filed a cross-appeal in which they contend that no partition should have been permitted.

Vargas attacks the lower court's determination on two grounds. First, he claims that the trial court improperly applied the parol evidence rule. Second, he asserts that the trial court improperly determined his fractional interest in the property. Vargas states also that the trial court's decision to partition the property was proper. We agree that the Vargas' share in the property is a 1/4 interest and reverse that part of the lower court's order awarding him a 1/6 share. We affirm the order granting partition.

The facts out of which this dispute arises are as follows. Albert Vargas and his wife, Irene Vargas, acquired title to a farm in Saville Township, Perry County, Pennsylvania, in 1939. On April 27, 1946, the Vargases conveyed to the Brintons an undivided 1/2 interest in the farm.*fn1 In 1959, the

[ 305 Pa. Super. Page 360]

    other undivided 1/2 interest was conveyed to a straw man, Charles Kugler, Esquire. In 1959, a deed was entered in which the interests of the parties were described in the following manner:

CHARLES W. KUGLER and MARGARET K. KUGLER, his wife, of the Borough of Bloomfield, Perry County, Pennsylvania, GRANTORS

AND

ALBERT P. VARGAS AND IRENE VARGAS, his wife, of the city of Harrisburg, Dauphin County, Pennsylvania and R.K. BRINTON and LULU P. BRINTON, his wife, of Saville Township, Perry County, Pennsylvania, as joint tenants ...


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