Opinion by
This was an action in ejectment brought by John McHale, the appellant, against the appellees, Kate E. Cullen and William T. Cullen, for a one-half undivided interest in certain land in the City of Scranton. In the statement and abstract of title, which he was required to file under the Act of May 8,1901, P. L. 142, the plaintiff averred that he was the owner of a one-half undivided interest in the described land and that the defendants “who claim to own the other one-half undivided interest have attempted to oust the plaintiff and
In support of his case, the plaintiff offered in evidence the prsecipe for the writ, the writ and the return of the sheriff, and the deed from George W. Hess et al. to John McHale and Thomas N. Cullen, and the answers of the defendants, for the purpose only of showing ouster and adverse claim by them, and then rested. The defendants offered in evidence the deed from the sheriff to William T. Cullen for the premises in question, and also a mortgage against the premises, given by John McHale and Thomas N. Cullen to George W. Hess, in 1887, for $1,400, and an assignment of the mortgage, in 1906, by Hess to Kate E. Cullen. It was admitted that a scire facias was issued on this mortgage and judgment duly entered on the sci. fa.; that afterwards writ of lev. fa. issued, and the property was sold at the sheriff’s sale following to William T. Cullen, and that the deed offered in evidence was executed, delivered and recorded. It was also admitted that Kate
The difficulty with the plaintiff’s case is, that the real basis of his cause of action, on which he grounded his right' of recovery, was an alleged equitable claim to retain his equal undivided interest in the property, notwithstanding the sheriff’s sale of the entire property, because the holder of the mortgage on which the property was sold was the wife of his cotenant and the purchaser at said sale was the son of the cotenant and his said wife. In his pleadings, however, he did not set up this equitable claim, nor did he offer to do so by amendment, but based his right to recover on the original deed from Hess to his cotenant and himself. The Act of May 8, 1901, P. L. 142, is clear upon this point: “The plaintiff shall file a declaration, which shall consist of a concise statement of his cause of action, with an abstract of the title under which he claims the land in dispute,......nor shall any evidence be received on the trial of said action of any matter not appearing in the pleadings.” It was incumbent on the plaintiff, under the provisions of this act, to set forth in his statement and abstract of title the real cause of action upon which he relied, if he intended to introduce any testimony in support of it: Klick v. Gernert, 220 Pa. 503; Rochester Boro. v. Kennedy, 229 Pa. 251; Shaffer v.
We have been able to find no case, after an exhaustive review of the authorities, which extends the principle that one cotenant cannot purchase an encumbrance or outstanding title and set it up against his cotenants for the purpose of depriving them of their estate: Weaver v. Wible, 25 Pa. 270; Duff v. Wilson, 72 Pa. 442; Tanney v. Tanney, 159 Pa. 277; and that the husband or wife of a cotenant or trustee cannot acquire the common trust property at a judicial sale: Dundas’s App., 64 Pa. 325, so as to hold that the son of a cotenant may not purchase the entire property at a judicial sale free of the interests of all the cotenants, where there is no proof adduced that he acted as the agent of any of the cotenants, or that the purchase money was furnished by such cotenant.
In Reynold’s Est., 239 Pa. 314, certain real estate of a decedent, held by his widow and collateral heirs as tenants in common, was sold by judicial sale to a third
There was no evidence in the case that William T. Cullen held any relation of trust or confidence towards the coowners of this land, such as to entitle them to claim that he purchased the land at judicial sale as trustee for them, nor that, in the purchase, he acted for or represented anybody but himself.
The assignments of error are overruled and the judgment is affirmed.