Practice — Preliminary objections to complaint — Demurrer — Ejectment — Laches.
1. In ruling upon preliminary objections to a complaint in the nature of a demurrer, the court may not consider factual matters not disclosed in the record. [378]
2. In this appeal from a summary judgment for the defendants in which it appeared that defendants filed preliminary objections in the nature of a demurrer to the complaint, it was Held that the court prematurely determined that plaintiffs were guilty of laches.
OPINION PER CURIAM, January 5, 1965:
The court below entered judgment in favor of defendants pursuant to preliminary objections in the nature of a demurrer filed to plaintiffs' amended complaint in ejectment, with abstract of title attached, on which plaintiffs based their right of possession to the two lots in question. The lower court held that since the assessment on the lots did not properly identify the assessed property, a tax sale based on the improper identification of the property was void and passed no title to plaintiffs. However, in order to make this determination it was necessary for the court below to consider factual matters neither averred in the complaint nor disclosed in any other part of the record.
The lower court was also of the opinion that plaintiffs were guilty of laches which we feel was a premature determination. Hence, the judgment entered by the lower court will be vacated and the record remanded to afford plaintiffs the opportunity to either further amend their complaint or require defendants to answer.
Judgment vacated with a procedendo.