
    Putt et al., Appellant, v. Africa.
    
      Real estate — Quieting title — Petition—Necessary averments — Act of June 10,1893, P. L. 4-15 — Ejectment.
    A petition for an issue to quiet title filed under the provisions of the Act of June 10, 1893, P. L. 415, must be dismissed where upon a hearing it appears from the evidence of the petitioners that one of the necessary jurisdictional averments in the petition is not true.
    Argued April 19, 1911.
    Appeal, No. 376, Jan. T., 1910, by plaintiffs, from decree of C. P. Huntington Co., Feb. T., 1910, No. 9, refusing issue to try title in case of H. M. Putt et al. v. J. Murray Africa and C. E. Benson.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for framed issue to settle rights in land. Before Woods, P. J.
    The opinion of the Supreme Court states the case.
    
      Error assigned was in refusing issue.
    
      H. H. Waite, with him Gettig, Bower & Zerby, for appellants.
    
      W. M. Henderson, with him Thomas F. Bailey, for appellee.
    May 23, 1911:
   Per Curiam,

The petition of the appellants for an issue to quiet the title which they claim to the property in controversy was filed under the provisions of the Act of June 10, 1893, P. L. 415. That act requires two jurisdictional averments to appear in the petition — title and right of possession in the petitioner for the issue and denial thereof by the person or persons on whom the rule to show cause why the issue should not be granted is to be served. Upon the hearing of the rule in this case, the court below found on the testimony of H. M. Putt, one of the petitioners, that they were not in possession of the land. One of the jurisdictional averments in the petition was not true, and, as .the court below could have awarded an issue only if it had appeared upon the hearing of the rule that the facts averred in the petition were true, its order refusing the issue is affirmed.

Appeal dismissed at appellant’s costs.  