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BOSSES ET AL. v. MAHALSKY ET AL. (06/26/50)

June 26, 1950

BOSSES ET AL., APPELLANTS,
v.
MAHALSKY ET AL.



Appeal, No. 175, Jan. T., 1950, from decree of Court of Common Pleas of Luzerne County, Dec. T., 1946, in Equity, No. 4, in case of Fred Bosses et al., trading as The Duryea Sportswear Company v. Lillian Mahalsky et al. Decree affirmed.

COUNSEL

Arthur H. James, with him Israel T. Klapper, for appellants.

Carl Carey, with him John F. Boyle, for appellees.

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

Author: Stearne

[ 365 Pa. Page 185]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This is an appeal from the final decree of the Court of Common Pleas of Luzerne County dismissing plaintiffs' complaint in equity seeking specific performance of an option to purchase certain property.

On June 28, 1945, Lillian Mahalsky, a married woman, leased to the plaintiffs, "all that certain building known as Mahalsky's Garage, situate 218-220 South Main Street, Duryea Borough, Luzerne County, Pa." This lease contained a provision giving the lessee an option to purchase the described premises. The lease was not signed by the lessor's husband. The

[ 365 Pa. Page 186]

    plaintiffs' complaint sets forth certain acts by the husband, Norman Mahalsky, as constituting an equitable estoppel. The facts allegedly constituting such estoppel are denied by the defendants and the chancellor found that there was no estoppel.

The plaintiffs gave timely notice to the defendants of their exercise of their option to purchase. A deed was tendered but was solely executed and acknowledged by the wife, the husband refusing to join therein although requested to do so by his wife. This deed was refused, whether because of the non-joinder of the husband or because of a reservation in the deed or both is not clear. Shortly thereafter the appellants filed this bill for specific performance. Before the trial the wife, Lillian Mahalsky, died and by her will, duly probated, she devised all of her real estate to her two sons, the substituted defendants.

The Act of June 8, 1893, P.L. 344, Section 2, as amended by the Acts of May 17, 1945, P.L. 625, section 2, of April 11, 1947, P.L. 60, section 1, and of May 31, 1947, P.L. 352, section 1, 48 PS 32, provides, "Hereafter a married woman may, in the same manner and to the same extent as an unmarried person, make any contract in writing, or otherwise, but she may not execute or acknowledge a deed, or other written instrument, conveying her real property, unless her husband join in such conveyance..." (emphasis supplied). It is clear that the words "or other written instrument" cover an attempt to convey an equitable title by option. Unless the plaintiffs can show an enforceable equitable title they cannot compel performance of the option granted by Mrs. Mahalsky during coverture.

The appellants present three arguments in support of enforceability of the option: (1) that there is an equitable estoppel as against the husband, (2) that the husband by ...


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