
    Small’s Appeal. [Youngman’s Estate.]
    In a proceeding for partition, a prior partition of the same property cannot be pleaded in bar, when the record shows that said prior proceedings in partition had been declared null and void for want of jurisdiction and had been set aside six months before the present proceeding was begun, unless the former decree has been reversed by the supreme court.
    An appeal cannot operate as a supersedeas in any case except the one in which it is entered.
    May 22, 1889.
    Appeal, No. 63, July T. 1887, by Bruce Small aud Susan E., his wife, iu her right, from O. C. Northumberland Co., to review a decree confirming a report of inquest in partition, in the estate of John G. Youngman, deceased, the appellants being heirs and devisees of the decedent. Trunkey and Clark, JJ., absent.
    On Oct. 8, 1886, William I. G-reenough presented a petition to court setting forth that he was an alienee of the interest of John Youngman in the real estate of John G-. Youngman, deceased, and praying for an inquest to make partition of said real estate. The court awarded an inquest. [1]
    At the sheriff’s inquest, counsel for Susan E. Small and others, heirs and devisees, appeared and filed.objections to the proceedings which the sheriff overruled. On Dec. 6, 1886, the report of the inquest was read and confirmed nisi. On the same day, the following objections were filed to the proceedings in partition and the confirmation of the inquest.
    “1st. The lands and tenements have been before parted, appraised and divided by regular proceedings in partition in the orphans’ court, under and according to the terms of the will of the decedent.
    
      “ 2d. The lands and tenements are not now and never have been, held in common with said petitioner.
    “ 3d. The lands and tenements are now, and, at the time of the presentation of the said petition in the said court, were, and, for a long time before had been, held by the said Susan E. Small exclusively unto herself in fee and severalty.
    “And thereupon the said exceptants hereby further offer to produce and show here in open court, in support of their said objections, the records of the former proceedings in the said court, of which the petitioner aforesaid for these proceedings had notice, and to which he appeared and acted as a party, by permission of the said court, upon his own petition for the purpose; which said former proceedings in partition of the same lands and tenements, in and of the same estate, were commenced and concluded, briefly as follows, to wit:
    “I. Petition of Jacob Youngman, one of the heirs and devisees of said decedent, for partition and distribution of the several parts of the said real estate, under the will of the said decedent, presented in open court on the day of 1872, a little over one year from the death of said decedent, on which an inquest was awarded.
    “II. Petition of A. A. Youngman, another heir and devisee of said decedent, for the purpose of conducting partition and division of said estate, expressly also under the will of said decedent, commenced as last above stated to a conclusion, presented on the day of
    “ III. Report of inquest; exceptions by the said Win. I. Greenough; subsequent withdrawal thereof, and confirmation of inquest; appointment of auditor as well on his petition as upon that of the said exceptants; report of the auditor thereupon, and the like.
    “ 4th. The appeal is now pending in the supreme court from the final decree of this court, and undetermined, for refusal to enjoin the subsequent sale of John Youngman’s pretended interest remaining after the proceedings aforesaid on execution upon a judgment by the said Greenough, as well as from the final decree of the orphans’ court aforesaid in the matter of said former proceedings ini partition.”
    These objections were overruled and the report of the inquest confirmed, in the following opinion, by Rockefeller, P. J.:
    “ The former proceedings in partition are not now pending in this court, having been, on March 22, 1886, set aside by the court. If there is an appeal to the supreme court pending, and the decree of this court setting aside the said proceedings is reversed, and the proceedings confirmed, they may be pleaded in bar to a final decree in this case. The mere pendency of the appeal, we think, cannot operate as a supersedeas; but, still, we would not, perhaps, enter a final decree until the matter is disposed of in the supreme court, especially if the appeal is prosecuted without delay.
    “ If the lands are now, and were at the time of the presentation of the petition in this case, held by Snsan E. Small in fee simple in severalty, as alleged, of course, as we before held, the court has no jurisdiction. Mr. Greenough, the petitioner, only desires to go on and have the proceedings advanced as far as possible until there is a decision of the supreme court as to whether the former proceedings that were set aside by the court were regular, and does not, as I understand it, propose to ask for a final decree until then, provided the appeal is prosecuted without delay.
    
      “ The question as to whether any of the lands are held in severalty and not in common must be tried in some way, and in confirming the report of inquest we do it conditionally, or in other words, to be without prejudice to either party.
    “ The report of the inquest is confirmed; such confirmation, however, may be stricken ofE in case the former proceedings in partition, mentioned in the exceptions, are finally confirmed and pleaded in bar, or it is shown that the court has no jurisdiction by reason of any matter alleged in the said exceptions.”
    
      The assignments of error specified, 1, the awarding of the inquest; 2, the confirmation of the inquest; 3, the overruling of the exceptions to the report of the inquest, quoting them, as above; and, 4, the opinion of the court, quoting it.
    
      Wm. A. Sober, for appellants.
    -The appellee having acquired Ms alleged title on execution against one of the heirs after the final confirmation of the report of the previous inquest, and having been heard therein, cannot afterward call in question the regularity of such inquest. Herr v. Herr, 5 Pa. 428; Merklein v. Trapnell, 34 Pa. 42; Lair v. Hunsecher, 28 Pa. 115; Painter v. Henderson, 7 Pa. 48; Long’s Ap., 77 Pa. 151; Darlington’s Ap., 13 Pa. 430.
    The appellee is estopped from continuing in this partition proceeding by reason of his participating actively in the former proceeding.
    The court below had no power to reverse and set aside its own decree, on the faith of which all parties acted.
    The court had no jurisdiction in partition at the suit of this appellee, when there was an outstanding hostile claim based on a decree of the court. McMasters v. Carothers, 1 Pa. 324; Law v. Patterson, 1 W. & S. 184; Flaherty’s Est., 5 Phila. 477.
    
      S. P. Wolverton and Charles M. Clement, for appellee.
    An alienee of an heir is entitled to rights in partition proceedings as the heir. Stewart’s Ap., 56 Pa. 241; Thompson v. Stitt, 56 Pa. 156; Ragan’s Est., 7 Watts, 438; Wentz’s Ap., 7 Pa. 151; Gibbons’ Ap., 104 Pa. 587.
    The orphans’ court had the power to set aside its own confirmation of a return of inquest in a partition case. Rankin’s Ap., 95 Pa. 358; George’s Ap., 12 Pa. 260; Milne’s Ap., 99 Pa. 489.
    An objection filed to a previous partition does not estop the party from subsequently beginning another proceeding in partition when his objection to the jurisdiction of the first proceeding is sustained. It has none of the elements of an estoppel either of record or in pais. Duchess of Kingston’s Case, 2 Sm. L. C. 438; Wright’s Ap., 99 Pa. 425; Werkheiser v. Werkheiser, 3 Rawle, 326; Blackwell v. Cameron, 46 Pa. 236.
    An appeal from a decree of the orphans’ court sustaining objections to the jurisdiction in a partition proceeding does not operate as a supersedeas to another separate and different partition proceeding by a different co-tenant. Alnatt on Partition, 69; Rex v. Rex, 3 S. & R. 533; Garven v. Dawson, 13 S. & R. 246.
    Oct. 1, 1888.
   Sterrett, J.,

This proceeding in partition, commenced in October, 1886, by Wm. I. Greenough, alienee of John Youngman, one of the devisees of John G. Youngman, deceased, was resisted by appellant, Mrs. Small, on the ground that the lands in question were then held by her in severalty under and by virtue of prior proceedings in partition, in same court, embracing the same lands. In support of her exceptions, she relied on the record of that case, which has just been before us on an appeal from the final decree setting aside all proceedings therein and dismissing the petition on which they wrere grounded. That decree, as will be seen by reference to Small et alls Appeal, No. 27, July Term, 1887, has just been affirmed. [The preceding case.]

In disposing of appellant’s exceptions in the present case, the learned judge of the orphans’ court rightly held that the proceedings in the former case, which were set aside nearly six months before the petition in this case was presented, could not be interposed as a bar to this proceeding unless the final decree in the other case was first reversed by this court. That has not been done. On the contrary, the decree has been affirmed, thus definitely settling the fact that the former proceedings were null and void for want of jurisdiction. It follows, therefore, that there is nothing left to support the specifications of error based on the record of those proceedings. We find nothing in any of the specifications that requires special notice, or that would warrant a reversal of the decree.

The decree of the orphans’ court, confirming the report of the inquest, is affirmed and the appeal dismissed at the costs of appellant ; and it is ordered that the record be remitted for further proceedings. W. M. S. Jr.  