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HomeMy WebLinkAbout09-1901CHARLES E. AVIS and IN THE COURT OF COMMON PLEAS OF CHERIE L. AVIS, husband and wife, :CUMBERLAND COUNTY, PENNSYLVANIA along with DEBORAH A. PRIVY, .NO. ©~~ 1 qot CJJ,I Plaintiffs ACTION TO QUIET TITLE v. HEIRS OF MATHIAS SAILOR, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20} days after this complaint and notice aze served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or properly or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717}-249-3166 AMERICANS WITH DISABII,ITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. CHARLES E. AVIS and CHERIE L. AVIS, husband and wife, along with DEBORAH A. PRIVY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. Plaintiffs v. ACTION TO QUIET TITLE HEIRS OF MATHIAS SAILOR, Defendants AVISU USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomaz accion dentro de veinte (20) dias a partir de la fecha en que recibio la demands y el aviso. Usted debe presentaz comparecencia escrita en person o por abogado y presentaz en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demands o por cualquier otra wueja o compensacion reclamados por el Demandant. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERCHOS IlVIPORTANTES PARR USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENT. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRTTA ABAJO PARR AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-249-3166 CHARLES E. AVIS and CHERIE L. AVIS, husband and wife, along with DEBORAH A. PRIVY, Plaintiffs v. HEIRS OF MATHIAS SAILOR, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . NO. Q 9 - ` q4 ~ G d U ~~ ACTION TO QUIET TITLE AND NOW, comes the Plaintiffs, CHARLES E. AVIS and CHERIE L. AVIS, husband and wife, along with Plaintiff, DEBORAH A. PRIVY, sister of CHARLES E. AVIS, and together they file this Action to Quiet Title to a certain tract of land, situate in Silver Spring Township, Cumberland County, Pennsylvania, and in support thereof respectfully represent: BACKGROUND 1 • The land which is the subject matter of this action was originally owned by Mathias Sailor pursuant to a deed dated February 10, 1906, and subsequently was devised to his son, John Sailor, who died on October 5, 1828. 2. By will dated May 8, 1828, John Sailor devised to his grandsons, John Sailor, George Sailor, and Mathias Sailor, each an undivided one-third (1/3) interest in a tract of land containing 22 acres 7 perches. At the time of John Sailor's death, the youngest grandson, Mathias Sailor, was two (2) years old. 3. There is no survey of record establishing a subdivision of this 22 acres 7 perches tract of land between the grandsons, but there is a deed dated January 5, 1848, from George Sailor and Elizabeth, his wife, to William C. Houser of George Sailor's undivided one-third (1/3) interest in this land. This deed does not contain a metes and bounds description of the land. 4. A subsequent deed dated April 1, 1850, from Assignees of William C. Houser to Mary Smith did contain a metes and bounds description of George Sailor's undivided one-third (1/3) interest and further stated, "John, George and Mathias Sailor who divided the same among themselves agreeably to said will and the above described tract fell to the shaze or lot of George Sailor ..." 5. Title of George Sailor's undivided one-third (1/3) interest can be traced from George Sailor to Ernest Avis and Phyllis Avis, the pazents of the Plaintiffs herein, who took title to this tract by deed dated January 31, 1973. 6. The undivided one-third (1/3) interest of John Sailor was deeded to John Bobb on April 1, 1847, without a metes and bounds description. 7. From April 1, 1847, through March 28, 1892, no record transfers of the John Sailor tract could be found, but the records do show that on Macch 28, 1892, the John Sailor tract was conveyed by deed from the Executor of George Houck, deceased, to James Bell, and this deed included a metes and bounds description of John Sailor's undivided one-third (1/3) interest in the land. 8. From James Bell to the present, title can be traced to Ernest Avis and Phyllis Avis, the pazents of the Plaintiffs herein, who took title to this tract by deed dated January 31, 1973. 9. Since July 27, 1942, both the George Sailor tract and the John Sailor tract have been transferredlconveyed together on the same deed. 10. In 1849, Mathias Sailor died intestate at the age of twenty-three (23) years. He was not married and he had no children. 11. George Sailor, Mathias Sailor's brother, settled the estate of Mathias Sailor. 12. A review of the inventory and account filed by George Sailor revealed no reference to Mathias Sailor's undivided one-third (1/3) interest in the land devised to him by his grandfather, John Sailor. 13. There is no deed of record from Mathias Sailor to any grantee of his undivided one-third (1/3) interest in the land. 14. There is no record that either George Sailor or John Sailor ever took title to the one-third (1/3) interest in the land belonging to Mathias Sailor, nor is there any record that this one-third (1/3) tract has ever been transferred to another party. 15. Prior to April 24, 1981, there are no known surveys which included descriptions of any of the three (3) tracts which had at one time been owned by John Sailor, George Sailor, and Mathias Sailor. 16. It is believed and therefore averred that since August 12, 1946, each successive owner to the combined George Sailor and John Sailor tracts believed that their deed included the Mathias Sailor tract, the existence of which would have been unknown to each owner. 17. The first known survey and site plan is dated Apri124, 1981, and was prepared by Eugene Albert Hockensmith, Registered Surveyor, at the behest of Ernest Avis and Phyllis Avis, husband and wife, who intended to subdivide their land and gift apart to CHARLES E. AVIS and CHERIE L. AVIS, his wife, and a second part to DEBORAH A. PRINEY, their daughter. (A copy of the Final Plan dated April 24, 1981, is attached hereto as Exhibit "A".) 18. Exhibit "A" make reference to an area of land just east of the Avis property which the surveyor indicated was owned by persons unknown. 19. Prior to this survey, Ernest and Phyllis Avis believed they owned this untitled tract of land, but the surveyor assured them that the Final Plan provided them with a total of 16.995 acres which was more than the 15 acres 130 perches which their deed conveyed to them. (A copy of the deed held by Ernest and Phyllis Avis is attached hereto as Exhibit "B".) 20. In reliance upon the Hockensmith survey, Ernest Avis and Phyllis Avis subdivided their land and gifted Tract 1, containing 4.861 acres to their daughter, DEBORAH A. PRINEY, and gifted Tract 2, containing 12.134 acres, to CHARLES E. AVIS and CHERIE L. AVIS, his wife. 21. The deed conveying title to CHARLES E. AVIS and CHERIE L. AVIS is dated May 13, 1981. (A copy of the deed is attached hereto as Exhibit "C".) 22. The deed conveying title to DEBORAH A. PRINEY is dated March 21, 1995. (A copy of the deed is attached hereto as Exhibit "D".) 23. In reliance upon their deed and the Hockensmith survey, CHARLES E. AVIS and CHERIE L. AVIS built a house, swimming pool, and greenhouse on the western portion of their 12.134 acre tract. 24. In an effort to determine the owner of the land adjacent to the eastern boundary of the Avis property, Plaintiffs engaged the service of C. W. Junkies Associates, Inc., a registered surveyor. 25. C. W. Junkies Associates, Inc., determined that the untitled tract of land was, in fact, the western most tract of land, being the undivided one-third (1/3) interest that had been devised to Mathias Sailor by will of John Sailor dated May 8, 1828. 26. The deeds into Plaintiffs' described a portion the two (2) easternmost tracts which had been devised to George Sailor and John Sailor under the will of May 8, 1828. 27. C. W. Junkies Associates, Inc., determined that Plaintiffs' deed description included the two (2) easternmost tracts and, in fact, the Hockensmith survey was wrong. It was actually the land west of the Avis property which should have identified as owned by persons unknown. 28. CHARLES E. AVIS and CHERIE L. AVIS, in reliance upon the Hockensmith survey, built their house, swimming pool, and greenhouse on land to which these Plaintiffs do not hold record of title. 29. Plaintiff, DEBORAH A. PRINEY, and her pazents, Ernest Avis and Phyllis Avis, have exercised exclusive control over that portion of the Mathias Sailor tract, to which they aze not record owners, since Januazy 31, 1973. COUNT I -ACTION TO QUIET TITLE CHARLES E. AVIS AND CHERIE L. AVIS V. HEIRS OF MATHIAS SAILOR CHARLES E. AVIS AND CHERIE L. AVIS v. HEIRS OF MATHIAS SAILOR 30. Pazagraphs 1 through 29 aze incorporated herein as if set forth at length. 31. Plaintiffs, CHARLES E. AVIS and CHERIE L. AVIS, are husband and wife and reside at 458 Sample Bridge Road, Enola, Silver Spring Township, Cumberland County, Pennsylvania 17025. 32. Defendants are the HEIRS OF MATHIAS SAILOR, who died intestate, a single man with no known children, while a resident of Cumberland County, Pennsylvania, in 1849. 33. Despite diligent efforts on the part of Plaintiffs, no heirs of Mathias Sailor have been identified and, if there are heirs of Mathias Sailor, deceased, their whereabouts are unknown. 34. By will of John Sailor, deceased, dated May 8, 1828, Mathis Sailor was to become the owner of an undivided one-third (1/3) interest in a parcel of land containing 22 acres 7 perches located in Silver Spring Township, Cumberland County, Pennsylvania. 35. There is no record of a transfer of Mathias Sailor's undivided one-third (1/3) interest in the above-described land during his lifetime, nor is there any record that such a transfer was made by his estate or next of kin. 36. There has been no record owner of this undivided one-third (1/3) interest in the above-described land since 1849 when Mathias Sailor died. 37. A metes and bounds description of this land which is now subject to Plaintiffs' claim of adverse possession is as follows: BEGINNING in the centerline of Sample Bridge Road at the southeast corner of land now or formerly owned by Joshua L. Shindel, thence North 2 degrees 30 minutes 00 seconds West a distance of 1260.73 feet to an iron pipe; thence South 80 degrees 13 minutes 29 seconds East a distance of 147.02 feet to a point; thence South 2 degrees 50 minutes 17 seconds East, along lands currently owned by Charles E. Avis and Cherie L. Avis, a distance of 1250.09 feet to a nail set in the centerline of Sample Bridge Road; thence North 84 degrees 44 minutes OS seconds West along the centerline of Sample Bridge Road a distance of 152.44 feet to the point and place of BEGINNING. Containing 4.244 acres. 38. Plaintiffs have been in actual possession of the property described in the preceding paragraph since May 13, 1981, having built their residence and other structures thereon. 39. By their manner of possession of these premises, Plaintiffs have asserted their ownership rights to the premises to the exclusion of all others. 40. Since 1981, Plaintiffs have had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land. A time period that exceeds twenty- one (21) years. WHEREFORE, Plaintiffs, CHARLES E. AVIS and CHERIE L. AVIS, pray that this Honorable Court will enter judgment in their favor and order that: (a) title in fee simple to the 4.244 acres described herein be confirmed in the names of CHARLES E. AVIS and CHERIE L. AVIS, husband and wife, as Tenants by the entireties; (b) that a deed be prepared naming the Recorder of Deeds in and for Cumberland County, Pennsylvania, as Grantor and CHARLES E. AVIS and CHERIE L. AVIS as Grantees; and (c) the Recorder of Deeds be directed to execute and record this deed upon payment of the recording fees by Plaintiffs. COUNT II -DEBORAH A. PRINEY V. HEIRS OF MATHIAS SAILOR 41. Paragraphs 1 through 40 are incorporated herein as if set forth at length. 42. Plaintiff DEBORAH A. PRINEY is an adult individual, the sister of Plaintiff CHARLES E. AVIS, and she resides at 43. DEBORAH A. PRINEY became the owner in fee simple of her tract by deed dated March 21, 1995. 44. A metes and bounds description of the land subject to this Plaintiff s claim of adverse possession is as follows: BEGINNING in the centerline of Sample Bridge Road at the southeast corner of land now or formerly owned by Joshua L. Shindel; thence South 84 degrees 44 minutes OS seconds East, a distance of 152.44 feet to a nail in the centerline of Sample Bridge Road; thence South 2 degrees 50 minutes 17 seconds East, a distance of 565.72 feet to a point; thence South 77 degrees 18 minutes 00 seconds West, a distance of 156.86 feet to an iron pipe; thence North 02 degrees 30 minutes 00 seconds West, a distance of 614.08 feet to a point in the centerline of Sample Bridge Road, the place of BEGINNING. Containing 2.068 acres. 45. Plaintiff has exercised actual, continuous, exclusive, visible, notorious, distinct and hostile possession of this land since March 21, 1995. 46. Plaintiff s pazents, Ernest and Phyllis Avis, exercised actual, continuous, exclusive, visible, notorious, distinct and hostile possession of this same land from January 31, 1973, until Mazch 31, 1995, the date they transferred possession of this land to Plaintiff. 47. By their manner of possession of this land, Plaintiff and her pazents before her have asserted continuous ownership of this land to the exclusion of all others since January 31, 1973. A time period that exceeds twenty-one (21) years. WHEREFORE, Plaintiff, DEBORAH A. PRINEY, prays that this Honorable Court will enter judgment in her favor and order that: (a) title in fee simple to the 2.068 acres described herein be confirmed in the name of DEBORAH A. PRINEY, and unmarried woman; (b) that a deed be prepared naming the Recorder of Deeds in and for Cumberland County, Pennsylvania, as Grantor and DEBORAH A. PRINEY as Grantee; and (c) the Recorder of Deeds be directed to execute and record this deed upon payment of the recording fees by Plaintiff. Respectfully submitted, R. Mark Thomas, Esquire Attorney No. 41301 101 South Mazket Street Mechanicsburg, PA 17055 Telephone: 717-796-2100 VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief I understand that false statements herein are made subject to the penalties ofl 8 Pa. C.S. §4904, dating to unswom falsification to authorities. Date: ~~ y ~~ ~ ~ VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief I understand that false statements herein are made subject to the penalties ofl8 Pa. C.S. §4904, relating to unswom falsification to authorities. VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief I understand that false statements herein are made subject to the penalties ofl8 Pa. C.S. §4904, ~latingto unswom falsification to authorities. Date: ~ y~~ ~, °~ ~ .- ~7 ~ r ~ : -~; ~ : w \ I Q~ ! ,l e T L ('~, c ~ ~ ,:.~; ty -.z VS. In the Court of Common Pleas of Cumberland County, Pennsylvania No Civil. 19 J Z?z zio ??i ?JG?" j ,?I9a ?'? a,bd To Prothonotary r?rt r_ rt 4 -r7 t : 19 -- rt -t _ Attorney for Plaintiff W No. Term, 19 vs. P R A E C I P E Filed 19 Atty.