Appeal, No. 177, March T., 1951, from decree of Court of Common Pleas of Allegheny County, April T., 1948, No. 2317, in case of Mildred Eaves, Formerly Mildred Snyder v. Henry L. Snyder. Decree reversed.
C. Francis Fisher, with him Brenlove, Mamula & Fisher, for appellant.
Martin L. Moore, Jr., with him J.M. Stoner & Sons, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
On February 24, 1948 the plaintiff, Mildred Eaves, formerly Mildred Snyder, brought a proceeding in equity under the Act of May 10, 1927, P.L. 884, 68 PS § 501*fn1 et seq., against the defendant, Henry L. Snyder, Jr., to procure a sale of real estate which the plaintiff alleged was acquired by the two of them as tenants by entireties. Their marriage was terminated by a decree of divorce on April 12, 1938. After answer, replication and dismissal of preliminary objections to the replication, the case was heard, testimony taken and on January 26, 1951 the trial judge handed down an adjudication granting plaintiff the relief sought. The court en banc after sustaining some and dismissing other exceptions to the decree nisi, entered a final decree upholding the adjudication of the trial judge, from which the defendant appeals.
The undisputed facts disclose that on May 22, 1932 Henry L. Snyder, Sr., father of the defendant, conveyed the house and lot involved to the defendant, Henry L. Snyder, Jr., and Mildred Snyder, his then wife, now Mildred Eaves, the plaintiff. Simultaneously with the execution of this deed, plaintiff and defendant, the grantees therein, executed a declaration of trust covering the property conveyed. In the trust instrument captioned "Deed of Trust" plaintiff and defendant
acknowledged and confirmed that they held the property "in trust only for the use and benefit of Henry L. Snyder, his heirs, executors, administrators and assigns," and agreed to grant and convey the property unto any person or persons that Henry L. Snyder, Sr. might designate and further acknowledged that they had not paid any consideration "but merely hold the property in trust for the said Henry L. Snyder, or his heirs and assigns;". The conveyance to plaintiff and defendant was recorded on July 6, 1932, but the declaration of trust was not recorded until March 8, 1938. In the meantime, on September 21, 1932, within five months after the delivery of the deed, Henry L. Snyder, Sr. filed a voluntary petition in bankruptcy.
No exception was taken to the chancellor's finding that there was no valuable consideration given for the conveyance by Henry L. Snyder, Sr. to the plaintiff and defendant nor to the chancellor's finding that "The execution, acknowledgment and delivery of the declaration of trust was the free act of plaintiff and defendant. They fully intended that Henry L. Snyder, Sr. should retain full control of the premises for his own benefit."
The declaration of trust was not recorded until 6 years after Henry L. Snyder, Sr. became a voluntary bankrupt.In the schedule of assets filed by him as a bankrupt he disavowed ownership of any real estate, although the unrecorded declaration of trust was then outstanding. No testimony was adduced to disclose the purpose of the giving of the deed and the declaration of trust or of the belated recording of the latter instrument but under the admitted facts of public record the chancellor found that Henry L. Snyder, Sr. conveyed the property to plaintiff and defendant with actual ...