Appeal, No. 35, Jan. T., 1953, from decree of Court of Common Pleas of Montgomery County, June T., 1949, in Equity, No. 20, in case of Fred C. Ehnes v. Cleveland Yowell et ux. and Edward J. Yowell et ux. Decree affirmed.
Robert W. Honeyman, with him Fox, Differ & Honeyman, Alfred L. Taxis, Jr. and Smith & Taxis, for appellant.
D. Stewart McElhone, with him Edward B. Duffy and Duffy, McTighe & McElhone, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
A bill in equity filed by the plaintiff, Fred C. Ehnes, a creditor of the defendant, Cleveland Yowell, alleged that certain lots of land were conveyed by the latter to his son, the defendant, Edward J. Yowell, without consideration and in fraud of plaintiff's claim. Plaintiff prayed that in accordance with the Uniform Fraudulent Conveyance Act of May 21, 1921, P.L. 1045, section 9, defendant Edward and his wife be ordered to
reconvey the property to defendant Cleveland and his wife.
Elaborate testimony taken in the proceedings revealed that in 1930 Cleveland and his wife had executed a judgment note for $5,000 to the Citizens National Bank of Jenkintown, on which note judgment was entered in 1931. This judgment was assigned to plaintiff and marked to his use in 1949, and it was thereupon duly revived by sci. fa. proceedings. Meanwhile, in 1946, an agreement of sale was entered into between the then owners of the real estate in question and Cleveland and his wife in pursuance of which the property was conveyed to them by deed dated May 21, 1946. According, however, to the findings made by the chancellor, it was the son, Edward, who had desired to purchase these lots and had instructed his father to do so as his agent. Cleveland had no financial resources whatever, and it was Edward's money that was used for the purchase. Both father and son intended that the deed should be made out in Edward's name, but, by mistake of the grantors' real estate agents, Cleveland and his wife were named as the grantees. The error was immediately discovered and the agents were instructed to prepare another deed from Cleveland and his wife to Edward; this was done and the new deed, likewise dated May 21, 1946, was recorded at the same time as the other, namely on May 22, 1946. Subsequently a dwelling house was erected on the lots, also with Edward's money.
The court entered a decree dismissing the bill.
Plaintiff contended that Cleveland purchased the lots with is own money, or, even if Edward was the real purchaser, he intended to make a gift of the property to his father. As to whose money went into the purchase, the finding by the court that it was that of the son -- based as it is upon clear and convincing evidence -- must be accepted as ...