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POLKA v. MAY. (11/14/55)

November 14, 1955

POLKA, APPELLANT,
v.
MAY.



Appeal, No. 98, March T., 1955, from order and judgment of Court of Common Pleas of Washington County, No. 5047, in case of Chester J. Polka v. Samuel May et ux. Order and judgment affirmed.

COUNSEL

Milton D. Rosenberg, with him Bloom, Bloom & Yard, for appellant.

Samuel Goldfarb, for appellee.

Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.

Author: Stern

[ 383 Pa. Page 81]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Defendants, who are husband and wife, are the owners as tenants by the entireties of a house and three adjoining lots of ground in the City of Washington, Pennsylvania. An auctioneer was employed to advertise and sell the property, a public sale was held and plaintiff became the purchaser. A memorandum of the receipt of the down payment and terms of the sale was prepared and signed by the husband defendant and the

[ 383 Pa. Page 82]

    plaintiff and witnessed by the auctioneer, but it was not signed by the wife. Plaintiff had the title examined and made preparation for settlement but defendants refused to accept a tender of the balance of the purchase money and to deliver a deed for the premises. Plaintiff filed a bill in equity for specific performance. Hearing having been had, the court held that he was not entitled to specific performance but only to recover the expenses he had incurred. He now appeals from that decision.

It is elementary that an estate by entireties is incapable of dissolution by one of the owners without the consent of the other and that neither spouse alone may alienate his or her interest in the property during the other's lifetime: Thees v. Prudential Insurance Co. of America, 325 Pa. 465, 467, 190 A. 895, 896; Schroeder v. Gulf Refining Co. (No. 1), 300 Pa. 397, 404, 150 A. 663, 665. It is likewise elementary that, because of the provisions of the statute of frauds, an agreement for the sale of land cannot be specifically enforced unless in writing signed by the parties to be charged or their agents thereunto lawfully authorized by writing: Llewellyn v. The Sunnyside Coal Co., 242 Pa. 517, 89 A. 575; Simon v. Beeck, 300 Pa. 334, 340, 150 A. 640, 642.

Plaintiff seeks to avoid the effect of the statute by contending that it should not be held to apply to the purchase of a property at a public auction sale. Both the auctioneer (called as plaintiff's witness) and the husband defendant testified that the property was not knocked down to plaintiff at the auction on his bid of $8,000, but that the auctioneer, the plaintiff and the husband conferred privately and plaintiff then agreed to pay $8,100 which was the least the husband would accept. However, the chancellor found as a fact that the property was knocked down to plaintiff at the sale

[ 383 Pa. Page 83]

    on his bid of $8,000, and that his subsequent agreement to pay an additional $100 was a voluntary act on his part. In view of that finding of the court the transaction must accordingly be regarded as an auction sale and therefore governed by the law applicable to such sales. Unfortunately for plaintiff, however, this does not afford him any relief, because it is universally held that sales by auction are within the provisions of the statute of frauds to the same extent as any other sale or contract of sale relating to land: 37 C.J.S. 17, § 122; Kurtz v. Cummings, 24 Pa. 35; Bush v. Breinig, 113 Pa. 310, 315, 6 A. 86, 87; cf. Herbert Estate, 356 Pa. 107, 111, 112, 51 A.2d 753, 755, 756. Where, therefore, as in Pennsylvania, the statute expressly requires that a contract for the sale of lands be signed by ...


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