Appeal, No. 101, March T., 1957, from decree of Court of Common Pleas of Fayette County, No. 2115, in equity, in case of John Stanko v. Mary A. Males and Charles K. Males, her husband. Decree modified and, as modified, affirmed.
John E. Costello, for appellants.
Samuel J. Feigus, with him Joseph R. Rygiel, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
Mary and John Stanko were tenants by the entireties of a $38,000 property located in Fayette County. On May 31, 1951, Mary Stanko delivered to the defendants, a daughter and son-in-law, a deed to this realty purportedly executed by herself and her husband. The defendants paid Mary Stanko $2,000 in cash, and assumed the $20,949.50 mortgage on the real estate. They then entered into possession of the premises, and occupied a five-room apartment as their residence. During the following year the defendants collected the rents from the property, and maintained and improved the premises.*fn1
In February, 1953, John Stanko Filed a bill in equity in the Court of Common Pleas of Fayette County to set aside the deed, averring that he did not sign the deed nor authorize anyone to sign for him. The case was originally heard by the late Judge COTTOM, who died before rendering a decision. By agreement of the parties an adjudication by Judge CARR was made upon a transcript of the testimony and the original exhibits. After a rehearing at which the testimony of a handwriting expert was received in evidence, the chancellor concluded that the plaintiff never signed the deed nor authorized his wife to sign it in his behalf, but on the contrary immediately repudiated the deed when he learned of its existence in the spring of 1952. The defendants' exceptions to these findings were dismissed by the court en banc, and a judgment ordering the cancellation of the deed was entered. From the final decree the defendants appeal maintaining that the chancellor's findings were unsupported by the evidence, and that the decree failed to provide for recovery of the expenses incurred by the defendants in the acquisition, maintenance and improvement of the property.
The chancellor in rendering his adjudication did not see the witnesses, (excepting the handwriting expert), therefore his findings of fact are not entitled to the same weight as the verdict of a jury; this Court is equally competent to form an opinion as to the facts from the evidence appearing in the record. Wilwohl's Petition, 311 Pa. 152, 154, 166 Atl. 654 (1933).
However, nothing in the record impels us to disagree with the determination of the chancellor that the plaintiff had neither executed the deed, authorized his wife to sign it for him, nor had such notice of the transaction as would estop him from asserting his rights.
The plaintiff testified that the signature on the deed was not his own and that he had not consented that his wife act in his behalf. Indeed, he asserted that he had no knowledge whatsoever of the transaction prior to his discovery of the conveyance in the spring of 1952, at which time he contacted the defendants and an attorney in order to assert his claim to the property. His testimony was corroborated in part by the handwriting expert who testified that the signature "John Stanko" appearing on the deed was not genuine. Further, Stanko's position was substantiated by his wife, Mary, who ...