
    Small’s Appeal. [Youngman’s Estate.]
    The orphans’ court has no jurisdiction in partition, to divide land, where ail the parties are not interested in all the land intended to he divided; if some of the parties have an interest in some part of the land, but not in another part, the partition is void.
    Advantage may be taken of want of jurisdiction at any stage of the proceedings.
    Jurisdiction in partition cannot be given to the orphans’ court by consent of the parties.
    May 21, 1888.
    Appeal, No. 27, July T. 1887, of Bruce Small and Susan E., Ms wife, and Louisa H. Youngman, from a decree of O. C. Northumberland Co., dismissing exceptions to a master’s report and revoking a former decree of confirmation of an inquest in the partition of the real estate of John G. Youngman, deceased, the appellants being heirs and devisees of the decedent. Tbunkey, J., absent.
    The facts appear in the following report of the auditor, Geo. Hill, Esq.:
    “Finding ok Facts.
    “ The auditor finds the following facts:
    “1st. On July 10, 1880, by virtue of a general warrant of attorney, E. W. Greenough, Esq., appeared in the court of common pleas of Northumberland county for John Youngman and confessed a judgment against the said John Youngman, defendant, in favor of ’W'rn. I. Greenough, plaintiff, to No. 279 Sept. T. 1880, for the sum of $6,700, penalty, real debt and interest to date, $4,797.82, with interest from July 10, 1880, and costs. Upon this judgment, there issued wi'it of fi. fa. No. 52, Dec. T. 1883, on Nov. 26, 1883; and, on Nov. 29, 1883, by virtue thereof, the sheriff made a levy upon ‘ all the right, title and interest of, in and to all of the several pieces, parcels and lots of land situate in Northumberland county, etc.,’ being, inter alia, all the several pieces or purparts mentioned in these partition proceedings except purpart No. 4, the Byerly piece. This land was duly condemned Dec. 6,1883, by the sheriff’s inquest. On April 1, 1885, a writ of ven. ex. issued out of the same court, upon the same judgment, under which the sheriff sold the property, levied upon as aforesaid, to Wm. I. Greenough, the plaintiff in the judgment and the writ. To the return of sale, exceptions were filed May 11, 1885, by William A. Sober, Esq., attorney for Susan E. Small and others, described as ‘creditors of the decedent (John G. Youngman), as vendees of heirs and creditors of heirs, including the defendant in said execution, and vendees of the orphans’ court and takers in partition proceedings in the same court, and as vendees of such vendees and takers.’ These exceptions were dismissed, May 25, 1885, by the court, and deeds were acknowledged in open court by the sheriff and delivered to the said William I. Greenough for the interest aforesaid.
    “2d. [These proceedings by execution were running simultaneously with the partition proceedings in this court, which have not yet been concluded by final decree awarding the lands.] [2]
    
      “ The proceedings in partition may be recapitulated as follows:
    “Aug. 21, 1872, inquest awarded on petition of Jacob Young-man. Oct. 24, 1883, inquest awarded on petition of A. A. Young-man. Dec. 3, 1883, return of inquest read and confirmed nisi. Dec. 3, 1883, petition of W. I. Greenough praying to be permitted do file exceptions to the proceedings read and rule to show cause granted and proceedings in partition stayed. Same day, entry of rule and stay of proceedings endorsed on the return of inquest. Dec. 10, 1883, petition of heirs to have a day fixed to present offers or bids and praying confirmation of the partition and waiving right •of sale, or hems to take or refuse, read and consideration reserved until after disposal of the Greenough petition. Dec. 12, 1883, petition of Susan E. Small and husband to take purparts one and three as heir and' vendee of heirs at the valuation, and purparts five and six at the valuation, read and consideration reserved until after •disposal of the Greenough rule. Dec. 12, 1883, petition of Louisa H. Youngman praying to have purpart No. 2 allotted to her at the valuation as devisee thereof under the provisions of the will of the •decedent, read and consideration reserved until the disposal of the Greenough rule. Dec. 18, 1883, petition of Louisa H. Youngman, and also petition of Susan E. Small and other heirs and devisees of the decedent, for correction of the report of inquest so that the said report shall not appear to be an adjudication of the rights of the parties under the will, but shall have the effect of notice of the subject matters of the claims of the parties, read and amendment ordered, etc. Dec. 19, 1883, petition of heirs, etc., for confirmation of the report, for the appointment of an auditor and for an allotment of the lands, etc., read and consideration reserved as before. Jan. 7, 1884, the Greenough rule discharged by consent. [Jan. 7, 1884, return of inquisition returned.] [2] Jan. 7, 1884, petition of William I. Greenough for appointment of an auditor. Jan. 9, 1884, Geo. Hill appointed auditor, with power generally to hear evidence and report the facts and his opinion in relation to all matters and questions arising in the case. Oct. 6,1884, auditor’s report, filed, with the evidence, finding of facts and opinion and exceptions thereto by Wm. I. Greenough and Wm. A. Sober. April 27,1885, opinion of court filed - referring back the report to the auditor. May 25, 1885, petition of W. I. Greenough, Esq., alleging that he is now the owner of the share or purpart of John Youngman in the lands described in these proceedings and alleging want of jurisdiction in the court and praying to have the proceedings dismissed, read and referred to the auditor.
    “ 3d. [No new material facts were adduced in the evidence ■of the witnesses sworn.] [3] It has heretofore been found as a fact that Mrs. Small purchased the Greenough and Packer bonds through her brother John. She says that it was her intention to buy the original bond to which her father was a party and which John delivered to her. The collateral bond, which he also received, he delivered to Mr. Sober, who entered a judgment thereon. [It has also been found that Mrs. Small paid off the George B. Young-man judgment, through her brother Andrew, and the additional evidence as to this and also as to the erroneous entry of satisfaction on the judgment against John Youngman does not seem to the-auditor to make it necessary to alter his former findings.] [3]
    “ It may be said that the additional evidence emphasizes the-facts that Mrs. Small never conferred directly with Mr. Greenough in reference to these transactions; that she relied upon the honesty and intelligence of her brothers to protect her interests, and that it-was in view of these facts that she had an assignment of John’s interest in the estate, together with deeds of the heirs for purparts1 and 3, and that she had large claims against her father’s estate, which the other heirs were agreed should be paid by her taking the-real estate, that she permitted the satisfaction to be entered on the-record of her judgment against John.
    “ [The facts in relation to this matter have been found with sufficient fullness and have been passed upon by the court although the auditor in his report did not dispose of the question. It is-entirely a question of law as to whether, under the circumstances, Mrs. Small’s judgment lost its priority of lien by reason of the satisfaction. That question is settled, as far as this court is concerned, by the opinion of the court, under which the case was referred back to the auditor.”] [3]
    “ . . . ' [It having been decided by the court that John Youngman’s interest in the lands, late of his deceased father, remained in him, notwithstanding the assignment, which was treated by the court as an unrecorded mortgage, the auditor is of the opinion that it is proper for Mr. Greenough to introduce the evidence offered (the proceedings or execution by him, sheriff’s deed, etc.), for the-purpose as stated (to show title in him as sheriff’s vendee), there having-as yet been no final decree awarding the lands to those offering to-take at the valuation. The several objections made by Mr. Sober, as stated in the notes of evidence hereto attached, are therefore^ overruled.] [1]
    “ Conclusions of Law :
    “The first question to be considered is that raised by Mr. Greenough as to the jurisdiction of the orphans’ court in a case of this kind.
    “ When this case was before the auditor before, Mr. Greenough appeared as a judgment creditor of John Youngman, one of the sons and heirs of the decedent; and as the auditor then found that nothing would be due to the said John Youngman out of the real estate -taken at the appraisement, the auditor was of the opinion that Mr. Greenough had no standing. The court, however, did not confirm the report of the auditor in this finding, but referred it back with instructions to make report in accordance with opinion filed. Meanwhile Mr. Greenough was pressing his remedy against John Youngman by execution.
    
      “ On Nov. 26,1883, he had caused to be issued out of the court of common pleas a writ of fi. fa. on his judgment No.'279 September Term, 1880, and a levy was made by the sheriff on the interest and share of John Youngman in all the lands included in these partition proceedings, except the Byerly. This issued two days after the holding of the inquest and before the return and confirmation nisi. The interest of John in the land thus levied on was afterward duly condemned by inquisition of December 6, 1883, and a writ of ven. ex. was issued out of the said court to No. 63 May Term, 1885, tested April 1, 1885, and the lands mentioned in the said writ were duly sold to the said W. I. G-reenough, May 8, 1885, and deeds therefor were duly acknowledged in open court and delivered by the sheriff and recorded. Mr. Green ough now appears before the auditor as the owner in fee of the undivided interest of the said John Youngman in the several purparts (excepting purpart No. 4) mentioned in these proceedings and is entitled to be heard in place of the said John Youngman. These proceedings were running at the same time, in the court of common pleas, as the partition proceedings in the orphans’ court, and Mr. Greenough has acquired his title and appears here prior to final decree awarding the lands to the takers, and alleges that the orphans’ court has no jurisdiction in this case, and asks that the proceedings be dismissed, on account of the fact that the parties to the proceeding are not interested in the greater part of the land valued by the jury of inquest. The auditor referred, in his former report, to the irregularity of including the land held by Louisa, and by Samuel Byerly (purparts Nos. 2 and 4), in severalty, and then said, ‘the assertion by the parties of their titles as against the heirs is a denial of joint tenure and a virtual ousting’ of the jurisdiction of the orphans’ court.’ The separate titles of Samuel Byerly to purpart No. 4 and of Susan E. Small to purparts Nos. 1 and 3 as vendees of the heirs, were set up in the petition for the writ of inquest, as also before the sheriff’s jury and in the several petitions to take the land at the valuation, and, also, it transpired, during the proceedings, that purpart No. 2 was owned by Louisa H. Youngman in severalty, as devisee under the will, nevertheless these four properties were included, by the consent of the parties, and were valued and elected to be taken by the legal owners at the valuations and the said owners are now in court asking that their titles in partition be decreed to remain firm and stable forever. These proceedings are anomalous and the auditor is of the opinion that such decree should be refused upon the request of any party in interest. When this matter was before the auditor before, as he viewed it, there was no one in interest desirous of having the proceedings set aside, but the several parties named in the writ were, without exception, desirous of having final decree entered, and therefore the irregularity in the proceedings was treated as a matter of no consequence. Now, however, as, in the opinion of the court, an interest in some of the lands remains in John Youngman, and, as the purchaser of his interest appears and objects to the proceedings, the question becomes of consequence and importance. The auditor, being of the opinion that W. I. Greenough, Esq., the owner of the interest of John Young-man, is a proper party to suggest want of jurisdiction in the court, and being of the opinion that the objection is well taken, now proceeds to state the reasons therefor. It might be too late at this stage of the proceedings to raise this question if the allegation of want of jurisdiction arose from some formal defect in the process, but the allegation is that of the jurisdiction granted by law to the orphans’ court; and, if this be so, the orphans’ court will dismiss the proceedings at any time when the fact is brought to its notice.
    “ In the case of Bellas v. Dewart, 17 Pa. 85, the question of jurisdiction was raised by Eisher who was not a party, but appeared, after judgment, claiming the equitable title to the interest of Dewart and Hunter, the plaintiffs below, and, subsequently, the legal title under them ; and, on his motion, on account of the irregularity of the proceedings, the court refused to award the land and dismissed the case. There are numerous cases reported, and it is well settled, that a mere irregularity may be cured by consent of the parties, yet consent will not cure a radical want of jurisdiction ; and the question may be raised at any stage of the case, even in the appellant’s tribunal. Stoy v. Yost, 12 S. & R. 385; McKee v. Sanford, 25 Pa. 105; Schenley v. Com., 36 Pa. 29; Morrison v. Weaver, 4 S. & R. 190; Spangler v. Rambler, 4 S. & R. 191; Borough of Little Meadows, 28 Pa. 256; Oil City v. McAboy, 74 Pa. 249. This is also the law in other States: 33 Me. 414; 13 Ill. 432; 21 Barb. 9; 26 N. H. 232; 16 La. 246; 23 Conn. 172; 2 Ohio, 26; 5 Mich. 331; 2 Greene, Iowa, 374; 11 Ga. 453; 4 Cush. 27. In the case of Richards v. Rote, 68 Pa. 248, it was held that even the Legislature cannot validate proceedings void for want of jurisdiction in the court, and, although this decision proceeded upon the ground that the Act of the Legislature was unconstitutional as a decree between parties, it is an authority upon the point that where the court proceeds in partition in a case, or in a manner not authorized by law, the proceedings are absolutely void, and want of jurisdiction may be suggested to the court at any time before final decree is entered.
    “A principal object of partition in the orphans’ court is severance of the joint possession of two or more heirs or devisees having an interest in common in the real estate of a decedent, and therefore the Act of Assembly of March 29,1832, § 36, P. L. 21, provides that the orphans’ court of the county where the real estate of such decedent is situate shall have power, on the application of the widow or any lineal descendant, having an interest in such real estate, etc., to appoint partitioners, or to award an inquest, to make partition of such lands; and, upon the return made by the persons so appointed, or by the inquisition taken, to give judgment that the partition thereby made be firm and stable forever, etc. It seems clear that the real estate here mentioned is such real estate as the decedent possessed in fee at the time of his death, title to which descended to and continued in all of the parties in interest at the time of the application to the court and the appointment of partitioned, or awarding of inquest, as authorized by the Act. The Act makes no provision whatever for the case of lands held in severalty or by title adverse to the applicant. The petition for inquest and partition in this case was presented to the court Oct. 24, 1883, by Andrew A. Young-man, one of the sons, and an heir and devisee of the testator. Petition sets out by boundaries all the real estate of which the decedent died seized; and further recited that, after the death of the decedent, several heirs and devisees granted and conveyed to Susan E. Small all their several and joint interests in and to certain parts of the said real estate in fee simple, which real estate is that described as purparts Nos. 1 and 3; and, further, that the land described as purpart No. 4 had been sold and conveyed by the several heirs and devisees of the decedent unto "William Youngman, who subsequently conveyed the same to Samuel Byerly in fee. The inquest returned that the property described in the said writ could not be parted and divided without prejudice to or spoiling the whole and they therefore valued and appraised the six several purparts. They further returned that Susan E. Small was then in possession of purparts 1 and 3 as vendee of the heirs, the same having been granted and conveyed unto her in fee, and that Samuel Byerly was then in possession of purpart No. 4 as vendee of the heirs of said decedent ‘ by regular deed and conveyance duly acknowledged and recorded, whereby the said premises were granted and conveyed unto the said Samuel Byerly, his heirs and assigns in fee.’ And the said inquest further reported ‘ in the premises of the said writ under the provisions of the will’ of the decedent, inter alia, ‘that Louisa H. Young-man, one of the heirs and devisees ’ of the said decedent [is] to have absolutely the fund raised from and out of so much of the said real estate as is mentioned and described- in purparts Nos. 1 and 2.’ Purpart No. 1, here mentioned, is the same property described to be in the separate possession and tenure of Susan E. Small, by deed of the several heirs, including the said Louisa; and purpart No. 2 is the half lot which has been heretofore found was expressly devised to the said Louisa H. by the will of her father, and of which she was at the time of the said report the owner in severalty. It appears, therefore, that Andrew A. Youngman, the petitioner, had, at the time of the presenting his petition to the orphans’ court, no interest whatever in the lands described as purparts 1,2, 3 and 4 which were valued at $9,650.00 but only an interest in the lands described as purparts 5 and 6 valued at $1,983.33, which were in fact the only pieces to which the several parties retained titles at the time he presented his petition.
    “ The reason the other pieces were included in the petition; the reason those holding in severalty did not object, but permitted their separate property to be levied upon under the writ and valued and appraised; and the reason they came into court and elected to take their own separate’property at such valuation, is not clear; but it is clear that such a proceeding is neither directed nor authorized by the Act of Assembly giving the orphans’ court jurisdiction in partition. Had the jury disregarded the lands held in severalty and not considered them in their deliberations and return, perhaps no harm could have been done to any one; but it is well settled that all the parties must be interested in all the land brought into the proceedings ; for the primary object of the proceedings is to divide and apportion the land among all those who are interested and not merely to raise a fund to be distributed by the court as equity and good conscience may direct. It is only after the inquest finds that the land cannot be divided equally by them among the several owners that they are directed to appraise it. The jury in this case never had before them the real subjects of partition in such a way as to make their finding of any force or value. They were not authorized by law to part or divide among the parties any lands except those described as purparts 5 and 6, containing a little over six acres. Whether or not they might have found they could have divided these lands among the heirs without appraisement is not for the auditor to say, but a question for the jury. Clearly, this question was not submitted to them, nor called to their attention, on account of the complications exhibited by the return. That such partition would have been proper has been settled by Wistar’s Ap., 105 Pa. 390. This case is interesting in this connection also in that it suggests the possibility of amending the record by striking out a portion of the petition on the ground that no injustice is done thereby. But the case in this respect is quite different from the present one. There the petitioner 1 out of abundance of caution ’ excepted and reserved, from one of the tracts, twenty acres, which was alleged to be held adversely to the parties interested. It appearing that there was no adverse holding, and that the inquest included the whole of the land in their deliberations and findings by the consent of the parties, the result was not affected in any way. Here it is impossible to tell what the effect might have been if the lands held in severalty had been excluded from the attention of the jury; but the effect of including them has been to push the whole proceedings beyond the provisions of the Act of Assembly.
    “ It might be said that, by following the course taken in the former report, when the auditor believed that all the interested parties desired confirmation, and awarding the lands held in severalty to the respective owners thereof at the appraisement, without payment of owelty, no harm would be done to anyone; but this cannot be said with certainty, and, moreover, it would amount to a quashing of the writ and inquisition, in part, which, according to Romig’s Ap., 8 Watts, 415, cannot be done. It was held in that case that including land which should have been excluded vitiated the proceedings, although the land was included by consent; and the court says: ‘ The consent of the other tenant in common could not give the orphans’ court a jurisdiction which the Legislature had withheld from it. As, then, we cannot quash the writ and inquisition in part, the whole must be quashed.’ The auditor is not aware that his decision to the point that the writ must stand or fall as a whole has ever been reversed. If not, it ruled this case. In the case of Eell’s Est., 6 Pa. 457, it was held that proceedings in partition could not be sustained in the orphans’ court where one of the heirs held one of the purparts in severalty, and this for the reason that it presents a cause cognizable only in the court of common pleas, the Legislature never having extended jurisdiction to the orphans’ court in such cases. By reference to this case, it will also be seen that the party raising the objection had assented to the proceedings before the jury.
    “ The auditor is, therefore, of the opinion that the proceedings in this case were irregular from their inception; that they were not authorized by any Act of Assembly; and that, as the orphans’ court has no jurisdiction, the writ and inquisition should be quashed. It would seem a waste of time to undertake to malee report in accordance with the opinion of the court on the other branches of this case, and especially in view of the facts that such report will satisfy neither party, and advance further elements of confusion. The claim on behalf of Mrs. Small is that she is not liable to pay owelty, that she has had an assignment of John’s interest and holds large claims against her father’s estate with which the heirs are satisfied and which they want her to have. The former report of the auditor was in favor of her claims. But the court has decided that Mrs. Small is not a lien creditor of her father’s estate and that the agreement of the heirs cannot make her one and thus secure her claims as against a judgment creditor of an heir. Making this claim, it is clear that Mrs. Small will not be satisfied with a settlement according to the opinioh of the court, nor would Mr. G-reenough be satisfied, for his claim is that the court has no jurisdiction at all. It is clear, therefore, that no final decree can be entered, awarding the land, satisfactory to both parties, and which would give rest to the litigant rights, while, perhaps, the whole proceeding can be reviewed and adjusted under a decree dismissing the proceedings for want of jurisdiction, upon which question the auditor believes the contest in this case turns. There has heretofore been so much labor and money expended on this case that it seems a pity to have it take this turn, but it only seems so and is not really so. To go on and award the lands in partition may make infinitely more trouble and expense in the end. [The auditor, therefore, refrains from making further report, and returns to the court this opinion recommending that the whole proceedings be dismissed and the parties allowed to pursue their remedies in the common pleas.] [7]
    The appellants filed exceptions, alleging that the auditor erred: 1, 2, 3. In finding and reporting the matters set forth in the portions of the report within brackets, quoting them. 4. In omitting to find, as of the facts, and he is now requested so to report, in manner substantially as follows, to wit: That after condemnation of the land levied by Mr. Greenough’s writ of fi. fa., under date Dec. 6, 1883, Mr. Greenough abandoned his proceedings in the common pleas by execution, appeared in the orphans’ court to the partition* proceedings as lien and execution creditor, voluntarily withdrew his-petition for leave to file his exceptions, as well as the exceptions-themselves, on the day the report of inquest was confirmed by the-court, and, in open court, consented to such confirmation, to wit,. Dec. 7, 1884, as well as to the allotments the same day made by the court on the petition of the several takers before filed, at the valuations thereby, as well as by the report of inquest shown, and that he, the said Greenough, then thereupon, on the same day, presented his petition as such lien and execution creditor of an heir, for the-appointment of an auditor to ascertain the liens as upon the fund so-raised, whether as against heir or testator. And that he, the said Greenough, did not resume or attempt the resumption of his proceedings by execution in the common pleas against the pretended interest remaining in his debtor, John Youngman, until after the-report of the auditor and the argument upon his exceptions in court, he continuously until this day asserting his claim upon such fund as-such lien and execution creditor of the same John Youngman, the-son of decedent. His lien and execution debtor was a party not-objecting but consenting, and so was he. 5. In not reporting upon the whole of the evidence, nor attaching the same to his report. 6. In his reasonings and conclusions set out in his report "under the-caption of “ conclusions of law,” and in not reporting his conclusions, or propositions of law separately or distinctly from his arguments- and reasoning in the same premises, so as to make them the subject of clear and distinct or separate and specific exceptions. 7. In reporting as in brackets, quoting it. It is conflicting with the purposes of his appointment and of the reference by the court in the premises of this controversy.
    The court dismissed the exceptions, in the following opinion, by Bockbeeller, P. J.:
    [“ In an opinion, filed in this case April 27,1885,1 plainly stated-that the court had no jurisdiction, but finally concluded to confirm the inquisition, mainly on account of the expenses that had been incurred, and because the parties then on record consented to it. Since-then I have come to the conclusion that, inasmuch as the court had no jurisdiction of the subject matter, as clearly appeared on the face-of the proceedings, the parties could not give jurisdiction by consent.. The report of the learned auditor is so full and satisfactory that I scarcely think it necessary to suggest reasons of my own for setting-aside the proceedings. To allow them to stand and endeavor to fix. them up in some shape so as to do no harm to any one, if that were-possible, would be to introduce a looseness of practice that would be intolerable and lead to endless confusion and, perhaps, to expensive litigation. The validity of Mr. Greenough’s judgment against JohnYoungman, one of the heirs, is not questioned, and he had a right-to levy upon and sell said Youngman’s interest and become the purchaser thereof at sheriff’s sale, and, having done so, he has the right to be substituted instead of said John Youngman as a party. This being so, he is in a position to ask that the court dismiss the proceedings on the ground of want of jurisdiction.] McClure v. McClure, 1 Phila. 117; and see cases of Wickersham v. Young, 1 Miles, 395; Thompson v. Stitt, 56 Pa. 156; Stewart’s Ap., 56 Pa. 241. The petition in this case and the return of the inquest show that a part of the land was owned in severalty by Louisa Youngman, one of the heirs, and of course adversely to them; that two other tracts were held by Mrs. Small in severalty by virtue of conveyances from the other heirs, and another was owned in severalty by Samuel Byerly obtained in the same way. As to all these tracts, some of the heirs had not a particle of interest, at the time the petition was presented to the court. The auditor finds that the petitioner had no interest in any of the land at the time the inquest was awarded. The law is that all the parties must be interested in all the land which is intended to be divided; and if some of the parties have an interest in some part of the land, but not in another part, the partition is void. 2 T. & H. Pr. page 276; 14 Johns. 354. See, also, Romig’s Ap., 8 Watts 415; McMasters v. Carothers, 1 Pa. 324; Snyder’s Ap., 36 Pa. 166; Bagwill Est., 14 W. N. C. 311; In re Eel’s Est., 6 Pa. 457.
    “As to jurisdiction, it is well understood by all lawyers that where a court has no jurisdiction of the sum in controversy or of the subject matter of dispute or of the parties litigant; or, in other words, in all that class of cases of which the court has no jurisdiction whatever, advantage may be taken for want of it in any stage of "the proceedings. Where the court has jurisdiction of the subject matter, but there is irregularity in the process, jurisdiction may •often be given by consent, but never where the court has no jurisdiction whatever. See the case of Schenly et ux. v. Commonwealth, for the City of Allegheny, 36 Pa. 147, opinion by Williams, J. •Such, I take it, is the present .case. There can be no jurisdiction in the orphans’ court to divide the land, where all the parties are not interested in all the land intended to be divided, or where some •of the tracts are held in severalty and adversely to the other parties. In Torrance v. Torrance, 53 Pa. 505, it was held that ‘ want of jurisdiction in the orphans’ court is as fatal to its proceedings as to those •of any other court.’ And see Shumate v. McGarity, 83 Pa. 38. The auditor has cited a large number of authorities to show that jurisdiction cannot be given by consent, and this principle is applied by the supreme court of this state to cases of want of' jurisdiction in partition in the orphans’ court. Bomig’s Ap., 8 Watts, 415. The parties will be obliged to commence again. I see no other way.
    [“And now, March 22,1886, the decree of the court of January 7, 1884, confirming the return of the inquest, is revoked, and, for the reasons stated, the exceptions to the report of the auditor aré dismissed, the report confirmed and the petition, return of inquest .and all proceedings .set aside.”]
    
      
      The assignments of error specified the action of the court, 1-5, in not sustaining the first five exceptions to the auditor’s report, quoting them ; 6, in not sustaining the 5th and 6th exceptions, quoting them ; 7, the portion of the opinion included within brackets, quoting it; and, 8, the decree of the court, quoting it.
    
      Wm. A. Sober, for appellant.
    By his petition to be admitted as a party to file exceptions to the partition proceedings, Greenough lays the ground of his complaint to be what he now insists upon. He obtained the stay he so sought, and then, upon due time for deliberation and opportunity for further hearing, if he so desired, consented to the discharge of his rule in the full premises of his complaint, and to the confirmation of the report so proposed to be made the subject of such complaint, as well as to the allotments of the whole of the lands in controversy to the several takers thereof, and immediately thereupon proceeded to put among the records of the same proceeding his declaration of satisfaction and admission, and application for an auditor to distribute the fund.
    The matter of Mr. Greenough’s claim, by the judgment in question, as well as the reasons he subsequently urged, by his subsequently acquired title, as the pretended sheriff’s vendee, as of a pretended interest in the land remaining in John Youngman, stands res ad judicata upon an adequate hearing.
    Greenough did not issue his execution until April 1,1885, more than a year after he had consented, as judgment creditor, to the discharge of his rule to show cause, and as long after he put upon the record of the partition proceedings his admissions and declarations, of claim to the contrary.
    Land not properly included could have been eliminated from the partition proceedings, on motion, or by the court, at its own instance.
    The orphans’ court had jurisdiction. Act of April 10, 1849, Purd. 538.
    Enough appears in this case to support the jurisdiction of the orphans’ court by partition, if for no other reason, to fix and determine the several interests of the heirs, legatees and devisees, and the valuation thereof. It is not the case of a total want of jurisdiction of subject-matter or parties so that consent or appearance cannot make a decree therein effectual and binding upon the parties or privies.
    Proceedings in partition are conclusive, although a party having no title is joined. Davis v. Durgin, N. Y., Vol. 2 N. Eng. R. 910; Barclay v. Kerr, 1 Cent. R. 553; Christy and Burk’s Ap., 2 Cent. R. 565; Hasten v. Olcott, N. Y., 3 East. R. 749; Herr v. Herr, 5 Pa. 428; Runyan’s Ap., 27 Pa. 121; Groff v. Groff, 14 S. & R. 181; Merklein v. Trapnell, 34 Pa. 42; Lair v. Hunsicker, 28 Pa. 115; Vensel’s Ap., 77 Pa. 71; Painter v. Henderson, 7 Pa. 48; Long’s Ap., 77 Pa. 151.
    Here strangers, being judgment creditors of the heir who owned the land, will not be permitted to dispute it. Darlington’s Appropriation, 13 Pa. 430.
    The extent of the interest of John Youngman, the heir and devisee, can be ascertained only after the settlement of the decedent’s estate, under the will. Hence, the jurisdiction of the orphans’ court is exclusive. Maurer v. Kerper, 102 Pa. 444.
    The common pleas, even as a court of equity, cannot interfere with a matter of which the orphans’ court has exclusive jurisdiction. Loomis v. Loomis, 27 Pa. 233. A bill in equity in the common pleas cannot be sustained against an executor to restrain him from selling real estate in pursuance of an order of the orphans’ court. Ib. The orphans’ court has all the powers of discovery requisite for the complete exercise of its jurisdiction. Ib.
    
      S. P. Wolverton and Charles M. Clement, for appellee.
    Want of jurisdiction is as fatal to the acts of the orphans’ court as to those of any other. Torrance v. Torrance, 53 Pa. 510. As a general rule, want of jurisdiction may be taken advantage of at any time, and at any stage of the cause. Musselman’s Ap., 101 Pa. 169; Black’s Ex. v. Black’s Ex., 34 Pa. 354; Fowler v. Eddy, 1 Cent. R. 563; Borough of Little Meadows, 28 Pa. 258.
    Greenough’s right to come into the case as a party, after confirmation of the return of inquest but before allotment, he having purchased the right to this interest of John Youngman, one of the parties to it, in all the lands, at a sheriff’s sale, made under a judgment which became a lien before the proceedings in partition were commenced, seems to be conclusively settled by Gibbons’s Appeal, 104 Pa. 587. See, also, Bachman v. Chrisman, 23 Pa. 162; Stewart’s Ap., 56 Pa. 241; Thompson v. Stitt, 56 Pa. 156; Ragan’s Est., 7 Watts, 438; Wentz’s Ap., 7 Pa. 151.
    But the jurisdiction of the orphans’ court, and their power to set aside a proceeding for want of jurisdiction, does not depend upon the motion and exceptions of parties to the record. The court may refuse, in such case, the prayer of the petitioner, or may arrest the proceeding at any stage of it, when the discovery is made, no matter how, that the law has not given the court power to act in the case. McMaster v. Carothers, 1 Pa. 324.
    Jurisdiction is given only on the petition of parties in interest in all the lands proposed to be divided. Eell’s Est., 6 Pa. 457.
    To defeat the action of partition, it is not necessary that adverse possession have a continuance of twenty-one years. It is expressly decided that twenty-one days is as good as twenty-one years for that purpose. Longwell v. Bently, 3 Gr. 177; Law v. Patterson, 1 W. & S. 193; McMasters v. Carothers, 1 Pa. 324; Bagwill’s Est., 14 W. N. C. 311.
    Consent cannot confer jurisdiction against the laws of the state. Oil City v. McAboy, 74 Pa. 249; Morrison v. Weaver, 4 S. & R. 190; Stoy v. Yost, 12 S. & R. 385; Bellas v. Dewart, 17 Pa. 85; Camp v. Wood, 10 Watts, 118; Scott v. Noble, 72 Pa. 115; McKee v. Sanford, 25 Pa. 105.
    
      For want of jurisdiction as to part of the land, in a proceeding in the orphans’ court, where consent had been given, the supreme court dismissed the petition as to the whole. McMasters v. Carothers, 1 Pa. 324; Wells’s Est., 6 Pa. 457; Romig’s Ap., 8 Watts, 415.
    Oct. 1, 1888.
   Sterrett, J.,

The very elaborate argument of the learned counsel for appellants has failed to convince us that the decree complained of should be reversed. In view of the delay and very considerable expense that have resulted from these proceedings, it is to be regretted that their radically defective character was not sooner brought to the attention of the court and the proper remedy applied. The want of jurisdiction, made manifest by the clear and exhaustive report of the learned auditor, was necessarily fatal at any stage of the proceedings. Everything that can be profitably said, on the questions involved, may be found in the auditor’s report and opinion of the court below. For reasons there given, the decree should not be disturbed.

Decree affirmed and appeal dismissed at appellant’s costs.  