Appeal, No. 286, Jan. T., 1960, from decree of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1958, No. 529, in case of Wade chambers v. Minnie M. Chambers. Decree reversed.
Bernard J. Korman, with him Frederick Cohen, and Gold and Bowman, for appellant.
Leon S. Rosenthal, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal from a final decree of the Court of Common Pleas No. 1 of Philadelphia County which dismissed appellant-husband's complaint in equity which sought the reconveyance of certain realty held by the appellee-wife. The chancellor, after hearing, held that there was a presumptive gift of the premises by appellant to the appellee which had not been rebutted and that the evidence was insufficient to establish a trust. Appellant's exceptions to the decree nisi were dismissed by the court en banc, and this appeal was taken from the final decree.
The facts (which are not seriously disputed) reveal that appellant, Wade Chambers, and appellee, Minnie M. Chambers, participated in a marriage ceremony pursuant to the issuance of a proper marriage license in November, 1944. The parties, however, were never legally married because a previous marriage of appellee to one Sidney Mills in 1925 has never been dissolved or terminated by divorce and the said Sidney Mills is presently residing somewhere in Georgia. It is not clear when the parties learned of the impediment to their marriage but it is clear that both parties were under the impression that they were in fact husband
and wife throughout the time periods herein pertinent.*fn1
Approximately two years after the marriage ceremony, in June 1946 the parties purchased the realty presently involved, located at 4940 Aspen Street, Philadelphia, and title was taken in their respective names as "husband and wife". The purchase price of $4,000 was arranged by a $1,100 cash payment*fn2 and a $3,200 mortgage in the names of both parties. The parties thereafter resided together in the premises without incident or difficulty until 1950.
On or about July of 1950, the appellant contemplated purchasing a used automobile of a friend which had just been traded in on a newer model. This friend's father informed appellant that, if he transferred the premises over to appellee placing title in her name, then, in the event that appellant missed a finance payment on the car, his creditors could not proceed against the real estate. Thereafter, on July 31, 1950, the parties executed a conveyance of the premises to appellee alone. The parties stipulated, and the chancellor so found, that the purpose of this conveyance was to protect the real estate from any execution which might result upon a default upon the financing of the purchase of the ...