Appeal, No. 183, Jan. T., 1949, from decree of Court of Common Pleas of Luzerne County, Dec. T., 1946, in Equity, No. 8, in case of The Fidelity & Casualty Company of New York v. Andrew C. Kizis et ux. Decree affirmed.
M. F. McDonald, with him John L. McDonald and G. Reuling Davis, for appellant.
Kenneth J. English, for appellees.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE DREW
The Fidelity & Casualty Company of New York, plaintiff, seeks by this bill in equity to have dissolved an estate by entireties in a piece of real estate located at Harvey's Lake, Luzerne County, title to which is now in defendants, Andrew C. and Eva C. Kizis, husband and wife, and to impress on that property the lien of a judgment held by plaintiff against the husband alone. After a full hearing, the learned chancellor filed an adjudication and entered a decree dismissing the bill. Exceptions to the adjudication were overruled by the court en banc and from its final decree, plaintiff now appeals.
On March 12, 1942, Andrew and Eva Kizis entered into an agreement to purchase a house and lot at Harvey's Lake for $11,000, Kizis giving his personal check for $500 to seal the bargain. They then procured a loan of $8000 from one John E. Jones and gave as security a judgment note which they both signed. That money was used in obtaining a cashier's check in the
sum of $10,346.10, the balance of the purchase price less certain adjustments. The cashier's check was paid to the seller's agent on April 4, 1942, and the deed delivered to Mr. and Mrs. Kizis at that time and recorded two days later. In July of that year the loan from John Jones was paid by the Kizises when they obtained another loan for the same amount from Kizis' brother-in-law and gave him a judgment note signed by them.
At the time of those transactions, Kizis was and had been for some years, Vice President and Cashier of the Liberty National Bank of Pittston. In that capacity he was bonded by plaintiff in the sum of $75,000 and by another company for $50,000. In April, 1943, certain irregularities, for which Kizis as cashier was responsible, were discovered in the accounts of the bank, and an examination revealed a shortage in the amount of $193,350. In adjusting its claim for that amount, the bank received a total of $125,000 from plaintiff and the other surety company, and $60,725.20 from the liquidation of certain securities owned by Kizis, leaving a net balance of $7,624.80 due the bank. With the voluntary cooperation of Mrs. Kizis, $8,000 was obtained by mortgaging the Harvey's Lake property and that money was used to make final settlement with the bank on December 2, 1943. Plaintiff, to preserve its right to collect from Kizis the $75,000 which it had paid on its bond to the bank, obtained from him, on December 29, 1943, a judgment note for $75,000. On February 7, 1945, judgment was entered on the note and it is that judgment which plaintiff seeks to have declared a lien on the Harvey's Lake property.
On May 16, 1946, Mrs. Kizis sold a property located in West Pittston which she owned in her own right and she received from that sale the net sum of $5,927.39. She spent approximately $4000 of that amount in repairing and renovating the Harvey's Lake ...