
    Kennedy’s Petition.
    
      JSjectrn&nt^Rulp to bring ejeptment — Life, tenant.
    
    On a, petition for a rule to bring action of ejectment within six months, it is no answer for the respondent to say that “she has not, does not and' will not claim possession nor the right- of possession to theland described in the petition so. long as the petitioner lives,; ” nor is the, respondent’s admissions that the petitioner “ has a, life estate in said land and the right to possession thereof during her lifetime.,” any assertion that she. has a life estate only,, or that the respondent owns th.e remainder or the reversion. In such a case an assertion by the respondent that she cannot interfere with the petitioner’s possession in the latter’s lifetime, is a mere inference.
    On a rule to bring an action of ejectment, the respondent in showing cause should, state, the facts with sufhoient.fullness to enable the court to determine whether the title, if any, under which she claims is such as can, be asserted and enforced in an action of ejectment in the lifetime of the petitioner.
    Argued Nov. 2, 1901.
    Appeal, No. 181, Oct. T., 19Q1, by Sarab Kennedy, from order- of 0. P, McKean Co.., Oct. T., 1900, No-. 299, discharging rule, touring ejectment in In re. Petition of Sarab Kennedy.
    Before Rice, P. J., B.eaver, Orlada, W. W. Porter and W. D. Porter, JJ,
    Reversed.
    Rule to, bring- ejectment within sixty days.
    Tbe petition for the rule was, as follows :
    That she is tbe owner and is in possession of that certain tract, of land situate in tbe. city of Bradford, county of McKean and state of Pennsylvania, bounded and described as follows, to wit; That certain piece, parcel or lot of land situate, on the south side oi Corydon street, in the, second ward of the city of Bradford, county and state- aforesaid,, beginning at a point in tbe south line of- Corydon street, sixty feet west of the northeast. corner of land owned by A- C-. Switzer and Lavinia Switzer, bis wife, known as the. slaughter house let ,• thence southerly parallel with the. east line; of said, larger tract, known as the slaughter house lot, 100 feet; thence westerly forty feet, to a point ninety-seven feet south from the said s.outh line of Cory-don street, thence north ninety-seven feet to said south line of Corydon street; thence easterly along said south line of Cory-don street forty feet more or less to- the place of beginning; Being same land conveyed to your petitioner by A. C. Switzer and wife by deed dated March 25, 18.9.0; recorded in McKean county records in deed book, 68, p. 5.46, etc.
    That one. Elizabeth McCalmont claims an interest, in and title to the said described real estate, but is not in possession of the- same-, wherefore your petitioner, being desirous of quieting the title- thereto, respectfully requests that a rule be. granted upon the said Elizabeth McCalmont to, bring her action of ejectment within six months from date of service of said rule, or show cause why the same- cannot be so, brought.
    The answer to the petition was as follows;
    Elizabeth M. McCalmont, being duly sworn according to law, doth depose and say in answer to the petition of Sarah Kennedy, filed in the above stated case, and the rule of the, court granted thereon, that she has not, does not, and will not claim posses.-, sion nor the right, of possession to, the land described in said petition, so long as: the said Sarah Kennedy lives,; that.this, deponent admits that the said Sarah Kennedy has a. life estate, in said land, and the right toj possession thereof, during her-nafcural life, and this deponent does not intend to, and cannot interfere, with such possession as, she has no right thereto, during the natural life of said Sarah Kennedy.
    
      Error assigned, was in dismissing the petition.
    
      Eugene Mullin, of Mullin Mullin, for appellant-.
    
      R. B. Stone, with him James George, for appellee.
    March 14, 1902 :
   Opinion by

Rice, P. J.,

The respondent does not deny the allegation of the petitioner that the latter is in possession of the land and holds under a deed duly recorded. Nor does she assert that this deed is not in fee simple. Why, then, cannot the respondent bring an action of ejectment? We can find no sufficient reason adequately set forth in her answer, and it is needless to say .that we cannot consider facts of which there is neither allegation nor proof in the record.

1. Her concession, that “ she has not, does not and will not claim possession nor the right of possession to the land described in the petition so long as the said Sarah Kennedy lives,” is no answer. So far as appears this is a purely voluntary concession on her part. The very object of the act is to enable the person in possession to have the cloud on his title promptly removed, and it may be of the greatest importance to him to have the question tried in his lifetime. It was not contemplated that this could be prevented by the respondent’s mere voluntary concession, that he will not disturb the petitioner during his lifetime.

2. The respondent’s admission, that the petitioner “has a life estate in said land and the right to possession thereof during her lifetime,” is not an assertion that she has a life estate only, or that the respondent owns the remainder or the reversion. The respondent is very careful not to say what her claim is, or that she has any valid claim whatever.

3. -The respondent’s assertion that she cannot interfere with such possession in the lifetime of the petitioner is a mere inference. In showing cause she ought to have stated the facts Avith sufficient fullness to enable the court to determine whether the title, if any, under which she claims, is such as can be asserted and enforced in an action of ejectment in the lifetime of the petitioner.

For the reasons above suggested, we conclude that the answer is insufficient and the rule should have been made absolute.

The order discharging the rule is reversed and the record is remitted to the court below with directions to make the rule absolute and to enter judgment against the respondent unless Avithin thirty days from the making absolute of the rule she shall have brought her action of ejectment for the land described in the petition.  