dissenting.
As I believe the record clearly reflects that the plaintiff has demonstrated that he is entitled to partition, I must respectfully dissent.
The law has long been “that no one should be compelled to hold property in common with another,” and “the right of partition exists without regard to its difficulties.” Caldwell v. Snyder, 178 Pa. 420, 422, 35 A. 996 (1896). When conditions have deteriorated between those who are joint owners of real property, either dissatisfied owner, upon showing legal ownership as a tenant in common, as an incident to that co-tenancy, has an “absolute right” to partition. Lombardo v. DeMarco, 350 Pa.Super. 490, 499, 504 A.2d *11501256, 1260 (1985). The purpose and effect of a partition is “to give each of [the] joint owners the possession he is entitled to of his share in severalty.” Johnson v. Gaul, 228 Pa. 76, 77 A. 399 (1910).
In the instant case, the parties purchased the property, which is evidenced by a deed dated May 17,1991, granting to “James Robert Ramsey and Pamela J. Taylor, a one-half interest each.” The deed was properly recorded in Bucks County, and the defendant does not dispute its authenticity.
In March 1992, the plaintiff brought an action seeking partition of the real estate, among other claims. The defendant answered, counterclaimed, and filed new matter, and was granted leave to amend her complaint some two years later. In December of 1992, plaintiff filed a motion for judgment on the pleadings regarding the partition. Both parties filed briefs, the court heard oral argument on the motion, and rendered a decision ordering partition. The trial court correctly states the law in its opinion:
Clearly, plaintiff and defendant, Taylor, are co-tenants, as tenants in common. The appropriate form of tenancy is to be determined by the intention of the parties. The ultimate guide as to that intention is a matter of interpretation of the deed in question. Riccelli v. Forcinito, 407 Pa.Super 629, 595 A.2d 1322 (1991). The deed itself recites that it is a conveyance ... “as tenants in common.” Accordingly, as tenants in common, the plaintiff is entitled as of right to partition of this property, Lombardo v. DeMarco, supra.
Trial Court Opinion, p. 4.
The majority, while agreeing that the defendant has admitted that the deed names both parties as equal tenants in common, finds evidence of an “equitable defense” to the plaintiff’s right to partition in her answer. Specifically, these defenses were the claims that there was an agreement by the parties that the defendant would retain all rights in the property until she was reimbursed for all the monies advanced, and that the plaintiff had failed to perform under the agreement.
Neither of these claims, however, attack the validity of the deed. Since the defendant does not allege any fraud, accident, or mistake, “the nature and quantity of the real estate interest conveyed must be ascertained from the deed itself and cannot be shown by parol ... and with respect to unambiguous deeds, a court must ascertain what is the meaning of the words used, not what may have been intended by the parties as shown by parol.” Covert Appeal, 409 Pa. 290, 295, 186 A.2d 20, 23 (1962).
Here, the deed clearly states that the parties are tenants in common. There is no ambiguity. Hence, no parol evidence concerning what the parties may have intended can be considered. Moreover, the defendant is not prejudiced by the court’s decision. Pennsylvania Rule of Civil Procedure 1570 ensures that any charges or credits for monies she advanced will be considered in the partition proceeding.
Meanwhile, the plaintiff has already been forced to wait four years to regain any interest he is entitled to receive from the co-tenancy. By remanding and requiring further hearings on the issue, this court has further forced the plaintiff to suffer his involuntary servitude to joint ownership of this property.
Since the defendant has admitted the only material fact at issue here, namely the existence of the co-tenancy, I would uphold the trial court decision granting partition. See Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978).