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GAGNON v. SPEBACK (04/22/57)

April 22, 1957

GAGNON
v.
SPEBACK, APPELLANT.



Appeals, Nos. 30, 31, 32, March T., 1957, from decree of Court of Common Pleas of Indiana County, March T., 1954, in case of Edward P. Gagnon v. Charles Speback, alias Charles Spevack, Andrew Kuzneski and Buffington Township Farms, Inc., a Corporation. Decree affirmed.

COUNSEL

Harry Alan Sherman, for appellants.

John S. Simpson, with him A. G. Helbling and Fisher, Ruddock & Simpson, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Arnold

[ 389 Pa. Page 18]

OPINION BY MR. JUSTICE ARNOLD

On October 31, 1952, in payment for potatoes sold by plaintiff to them, the individual defendants delivered to plaintiff their judgment note for $15,000 payable fifteen days after date. On November 28, 1952, the individual defendants acquired in their own names three tracts of land in Indiana County, and so acquired a fourth tract on January 12, 1953. The total

[ 389 Pa. Page 19]

    recited consideration for all of the lands was $22,200. On January 12, 1953, they mortgaged the lands to an Indiana bank for a loan of $11,500. Thereafter, on March 26, 1953, the defendant corporation was formed, having as its original shareholders and incorporators the two individual defendants and the secretary of their attorney.

Several weeks after incorporation, the individual defendants conveyed the lands to the corporation. Quite significant is that the deed recited a consideration of only one dollar and that only a state transfer tax was paid on the basis of assessed valuation of $6,914. More importantly, however, the individual defendant, Kuzneski, filed his affidavit that no consideration passed for the transfer of the lands to the corporation.

On November 2, 1953, plaintiff entered judgment on his note, in Indiana County, and defendants thereafter filed petition to open. Their petition having been denied, they appealed to this Court (Gagnon v. Speback, 383 Pa. 359, 118 A.2d 744), and the action of the court below was affirmed on November 28, 1955.

Having learned of the transfer of the lands, plaintiff, on December 12, 1953, instituted this action in equity to have the deed of conveyance of lands declared fraudulent and void insofar as his rights against the individual defendants.

Other salient facts are that the stock book of the corporation showed that 124 shares were issued to defendant Kuzneski, 124 to defendant Speback, and 2 to their attorney's secretary. Kuzneski's certificate was endorsed over to Virginia Kuzneski, his wife; Speback's to Mildred Speback, his wife; and the secretary's to the defendants and their wives; presumably on March 27, 1953. It was established that the ...


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