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PEARDON v. PEARDON (05/22/50)

May 22, 1950

PEARDON
v.
PEARDON, APPELLANT



Appeal, No. 118, Jan. T., 1950, from decree of Court of Common Pleas of Montgomery County, June T., 1947, in Equity, No. 21, in case of Roswell Cameron Peardon v. Rose M. Peardon. Decree affirmed.

COUNSEL

Robert Dechert, with him H. Francis DeLone, William F. Fox, Fox, & Honeyman and Barnes, Dechert, Price, Myers & Clark, for appellant.

Paul P. Wisler, with him Cassin W. Craig and Wisler, Pearlstine, Talone & Gerber, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Stern

[ 365 Pa. Page 14]

OPINION BY MR. JUSTICE HORACE STERN

Defendant's appeal in this case meets the insuperable obstacle that the findings of fact by a chancellor, approved by the court en banc, have the force and effect of the verdict of a jury and will not be disturbed on appeal if there is any evidence to support them. Here there is such evidence.

The parties were married in 1923; they were divorced in 1946. By deed of December 30, 1942 a farm property in Montgomery County was acquired by the wife, Rose M. Peardon; it was purchased principally with money of her own but with some contributions by her husband, Roswell Cameron Peardon. On May 10, 1943, she deeded the property, through a strawman, to herself and her husband as tenants by the entireties. In September, 1947 her husband instituted the present proceedings

[ 365 Pa. Page 15]

    under the Act of May 10, 1927, P.L. 884, which provides that whenever any husband and wife thereafter acquiring property as tenants by the entireties shall be divorced, either of them may bring suit in equity against the other to have the property sold and the proceeds divided between them. The wife defendant asked for a dismissal of the bill on the ground that the deed of May 10, 1943 was obtained from her by fraud, that she was compelled to execute it against her will, that she signed it because of threats made against her by her husband, and that he obtained her signature by undue influence. The chancellor found, however, that "She knew the legal import and effect of the deed, and there was no fraud, undue influence or overreaching practiced upon her to procure her signature thereto, nor was the execution of the deed the result of any accident, mistake or misunderstanding on her part. The conveyance carried out her intention and desire to put the title to the land in the names of herself and her husband." The court en banc approved these findings, and the court appointed a trustee to sell the property at public sale and divide the proceeds equally between the parties.

The preliminary question arises whether, if defendant's claims are meritorious, she should not have brought an action to set aside the deed instead of making this collateral attack upon its integrity. Be that as it may, it is clear that the chancellor was justified in stating, as he did, that "Her own frank testimony completely refutes the averments of her answer." She testified that both she and her husband had put cash into the purchase of the property, that it was "a mutual undertaking", that she had "wanted it put in both names at the time of the purchase" but "he didn't want it", and that she always looked upon it as their joint property. She further stated that when he presented a deed to her making the title to himself (she did not know whether for the entire or a half interest) she told him that she "always wanted

[ 365 Pa. Page 16]

    it in both names" and that if it were deeded "over to both of us" it would be "all right". She admitted that "there was no force used by Mr. Peardon to compel" her "to sign it", that when she signed it she was "fully aware" of what she was doing, that she "understood the effect of the deed... and that it would place title in both ...


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