Appeal, No. 38, Jan. T., 1951, from decree of Court of Common Pleas of Delaware County, June T., 1948, in Equity, No. 1093, in case of Johanna Martin Mower v. Thomas F. Mower. Decree reversed.
Elgin E. Weest, with him G. Edgar Bowersox, for appellant.
Paul C. Van Dyke, with him James A. Cochrane, for appellee.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Johanna Martin Mower, plaintiff-wife, filed this bill in equity to compel the Chester-Cambridge Bank and Trust Company to record a deed by which certain land was conveyed to plaintiff and Thomas F. Mower, her husband, as tenants by the entireties, which deed was left with the bank for recording, and to restrain the husband from selling or encumbering the premises in question. The court below dismissed the bill upon the grounds that plaintiff had not the legal capacity to maintain the bill because she was not suing to recover her separate property. Plaintiff appealed.
Defendant-husband, prior to his marriage to plaintiff, was the owner of 509 Hinkson Boulevard, Ridley Park, Pennsylvania. After their marriage in 1947, husband and wife caused a deed to be prepared by which title was conveyed to them as tenants by the entireties. On March 10, 1948, husband and wife appeared at defendant bank and the husband and wife executed and acknowledged the deed. The conveyancing charges including the cost of recording were paid by the husband to the bank and the deed was delivered by husband and wife to the bank with instructions to the bank to record the deed. The next day, after a quarrel, the wife left the common domicile and did not return. On the same day the husband instructed the bank not to record the deed which had been left with it by the parties
for that purpose. The bank complied with his request. By subsequent stipulation the deed was delivered by the bank to the prothonotary in escrow to await disposition by the court of this litigation.
The present bill was filed to compel the recording of the deed and to restrain defendant-husband from selling or encumbering the premises. As the bill was not filed by a wife against her husband to recover property owned by husband and wife as tenants by the entireties, the Act of June 8, 1893, P.L. 344 sec. 3, as amended, (48 PS 111), (which provides that a wife may sue her husband only to recover her separate property) has no application.
The husband and wife executed and acknowledged the deed and the husband and wife as tenants by the entireties left the deed with the bank for recording. At that moment title to the property was vested in plaintiff and her husband as tenants by the entireties. Delivery of the deed was complete. The grantors parted with all control over the deed when it was so left with the bank for recording. In Chambley et al. v. Rumbaugh et al., 333 Pa. 319, 5 A.2d 171, this Court stated: "Whether there was a delivery in fact in any given case depends upon the intention of the grantor as shown by his words and actions and by the circumstances surrounding the transaction...." See Cray Estate, 353 Pa. 25, 44 A.2d 286. No other inference can be reached from the facts and circumstances in this case than that delivery was made. Whether there was delivery "... constitutes a question to be determined from all the evidence... by the chancellor": Chambley et al., v. Rumbaugh et al., supra. The court below states: ...