No. 1504 Philadelphia, 1981, Appeal from the Order of May 26, 1981 in the Court of Common Pleas of Susquehanna County, Civil Action, Equity No. 24-1979.
Ralph P. Carey, Scranton, for appellants.
John R. Dean, Montrose, for appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
[ 305 Pa. Super. Page 273]
This is an action for the partition of real estate. The lower court ordered the property -- a 290 acre tract -- partitioned one sixth to appellee and five sixths to appellants, appellants to hold their part as tenants-in-common. Although appellants have failed to provide "a short conclusion stating the precise relief sought," Pa.R.A.P. 2111(a)(7), we assume from their argument, that the property is not capable of division without prejudice to the whole, that they seek an order vacating the lower court's order and remanding for partition by private sale in accordance with Pa.R.Civ.P. 1563. However, we do not consider appellants' argument, and intimate no opinion as to its merits, for the lower court improperly found that appellants had elected to retain their interest in the property as tenants-in-common. We therefore remand for further proceedings.
Before this dispute arose, Ronald Holly and his wife, Mary, owned an undivided one-half interest in the property, and Sandford Holly, Ronald's brother, owned the remaining one-half interest. On November 29, 1977, Sandford died leaving his interest in the property in equal shares to the children of Ronald and Mary Holly: Diane Chamberlain, Mark Holly, and Linda Lewis. On January 8, 1979, Ronald, Mary, Diane, and Mark filed a complaint for partition against Linda, asking
that the share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying such partition into effect; and that, if the said real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary sale or sales
[ 305 Pa. Super. Page 274]
of the same may be made by such persons and in such manner as your Honorable Court may direct . . . .
On February 8, 1979, default judgment was taken against Linda, and the lower court directed partition, one half to Ronald and Mary, and one sixth to each of Diane, Mark, and Linda. A master was appointed, a hearing was conducted, and the property was surveyed and appraised. The master found that the property was capable of division, without prejudice to or spoiling the whole, into purparts proportionate in value to the respective interests of the several parties. However, the master did not so divide the property, but instead, divided it into two portions, one portion, a sixth, going to Linda and the other portion, five sixths, to Ronald, Mary, Diane, and Mark, to be held by them as tenants-in-common. The basis of this division was the master's finding that "[o]n December 14, 1979, the Plaintiffs [Ronald, Mary, Diane, and Mark] elected to retain their interests in the real estate as tenants in common. Therefore, the duty of the Master was to set aside Linda Lewis's one-sixth share in the property, if possible." R. 23a. The lower court confirmed the master's report and entered a decree nisi accordingly. Ronald, Mary, Diane, and Mark filed exceptions. When the lower court dismissed the exceptions and made the decree nisi final, Ronald, Mary, Diane, and Mark took this appeal.
The lower court "shall permit the shares of any two or more co-tenants to remain undivided between them if they so elect by writing filed within such time as the court or master shall direct." Pa.R.Civ.P. 1565(a). As noted above, here the master found that appellants did so elect. ...