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KALYVAS v. KALYVAS (06/24/52)

June 24, 1952

KALYVAS, APPELLANT,
v.
KALYVAS



Appeals, Nos. 109 and 110, March T., 1952, from order and judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 1178, in case of James G. Kalyvas v. Anthanasios J. Kalyvas, also known as Athanasios Kalyvas, George Kalyvas and Aristomenes Kalyvas. Order and judgment reversed.

COUNSEL

John A. Metz, Jr., with him Metz & Metz, for appellant.

Alexander Cooper, with him Morris Zimmerman, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 371 Pa. Page 372]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action against his three sons to quiet title to real estate. The action was brought pursuant to Pa. R.C.P., Rule 1061 et seq. Although the action is an action at law it embraces all the equitable jurisdiction which was formerly exercisable under a bill quia timet.

We agree with the trial judge and the Court en banc that this is the type of family dispute which should never have been aired in court but should have been settled by agreement of the parties. The transactions reflect no credit upon any of the parties involved and especially none on the father whose actions throughout this entire matter have been, as we shall see, unfair to his creditors, his children and his wife.

We deem it unnecessary to give a detailed account of the voluminous evidence or the contradictory promises and agreements, charges and counter-charges; we believe the following statement of important facts will suffice.

[ 371 Pa. Page 373]

Plaintiff and his wife by deed dated January 29, 1940, became owners of the premises known as 2553 Penn Avenue and 66 26th Street, Pittsburgh, Pennsylvania, in fee simple as tenants by the entireties. Plaintiff and his wife, by deed dated June 26, 1941, conveyed the premises to their three sons, the defendants. The deed was immediately recorded. The defendants by deed dated July 29, 1941, reconveyed the premises to the plaintiff. The deed was prepared, signed, acknowledged and actually delivered to the plaintiff on that date at the office of Theos E. Manos, who was a member of the Allegheny County Bar and attorney for all the parties. The plaintiff failed to record this deed until July 10, 1946. Deendants on January 9, 1946, six months prior to the date on which their father recorded their deed to him dated July 29, 1941, conveyed the premises to a straw man, who, the same day, reconveyed the premises to the three sons and the plaintiff as joint tenants with right of survivorship. Both of these deeds of January 9, 1946, were immediately recorded. All of the foregoing facts are undisputed.

Plaintiff came to Pittsburgh from Greece about 1922 and thereafter rented the premises in controversy for a hotel and restaurant business. In 1931 he brought over his eldest son and in 1939 the rest of his family. Except during the time when the defendants were in the military service of the United States they worked with their father in the conduct and operation of the hotel and restaurant business between 12 and 14 hours a day, generally 7 days a week, without any salary or pay. Plaintiff and the oldest son were partners on June 26, 1941 and on July 29, 1941. The family was exceptionally closely knit, although the father by virtue of old world customs was the patriarch and dominant influence in the household.

[ 371 Pa. Page 374]

Mr. Manos testified that the reason for the original deed of June 26, 1941, from the father and mother to the sons was to put the property beyond the reach of a presently existing pressing creditor of the father; in other words, to cheat and defraud creditors. No one, so far as the evidence discloses, informed the plaintiff's wife of her rights in the property or explained to her that she was relinquishing those rights by the execution of this deed. Mr. Manos testified that the three defendants orally agreed to reconvey the property to the plaintiff upon his demand. The defendants denied this agreement and alleged a different oral agreement, viz., that they purchased the property for $2,100 and gave their check in payment and further agreed that each of them and the plaintiff would acquire equal shares in the real estate with the right of survivorship, although at plaintiff's suggestion the deed was made to the defendants alone. It should be noted that the defendants had three ...


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