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HOWELL v. FRANKE (ET AL. (07/01/58)

July 1, 1958

HOWELL
v.
FRANKE (ET AL., APPELLANTS).



Appeal, No. 152, Jan. T., 1958, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1956, No. 10448, in case of Leola P. Howell v. Wilhelm H. Franke. Order affirmed.

COUNSEL

I. Finkelstein, for appellant.

A. Leon Higginbotham, Jr., with him Hardy Williams, Harvey N. Schmidt, and Norris, Schmidt, Green, Harris & Higginbotham, for appellee.

Before Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 393 Pa. Page 441]

OPINION BY MR. JUSTICE COHEN

On September 5, 1956, Leola P. Howell filed a complaint in equity against Wilhelm H. Franke, averring that she had purchased a certain Philadelphia property but had allowed Franke to take title in his own name upon his promise to convey the premises to her; that although she at various times had made demands upon Franke to execute and deliver a deed, he had failed to comply; wherefore she demanded that Franke be ordered to execute and deliver a deed to the premises to her. Franke did not enter any defense to the action and in due course a default judgment and a decree proconfesso were entered against Franke granting the prayers of Howell. On February 8, 1957, the judgment and decree were satisfied and the property was conveyed to Howell.

On September 11, 1957, the present appellant, Bertha Franke, the wife of the defendant in the aforementioned proceedings, but who herself was not a party thereto, filed a petition for a rule upon Leola P. Howell and

[ 393 Pa. Page 442]

Wilhelm H. Franke to show cause why the decree proconfesso should not be vacated, the conveyance ordered set aside, and the petitioner let into a defense. In her petition appellant alleged that she had furnished her husband, Wilhelm H. Franke, with part of the funds necessary for the purchase of the Philadelphia property upon his promise to have the title to the premises recorded in their joint names as tenants by the entireties. She further alleged that her husband, in violation of this agreement, took title in his own name and thereafter entered into a conspiracy with Howell in order to defraud the appellant of her rights in the premises. The fraud was consummated by Howell's filing of a false complaint to compel conveyance of the property, and Franke's failing to file an answer thereto so that a decree pro confesso could be entered.

To the petition, Howell filed preliminary objections questioning Bertha Franke's capacity and standing to attack the prior judgment. The objections were sustained by the chancellor who discharged the rule to show cause, and this appeal followed.

Assuming the averments of appellant's petition to be true for purposes of the present appeal, it appears that the processes of the court have been used to defraud the appellant of her equitable interest in the Philadelphia real estate. When the parties to an action contrive by the entry of judgment therein to defeat the rights of a third person in real estate, the judgment does not act as a bar against the claim of the person defrauded, and is therefore subject to collateral attack. Biddle v. Tomlinson, 115 Pa. 299, 8 Atl. 774 (1887). Particularly under the circumstances of this case where appellant was deceived by the promise of her ...


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