Appeal, No. 76, Oct. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 62-3442, in case of Patrick F. Gallagher v. Bernard J. Finnin et al. Decision affirmed; reargument refused July 3, 1963.
John P. Yatsko, for appellant.
Richard S. Lowe, with him Fox, Differ, DiGiacomo & Lowe, for appellees.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 414]
This is an appeal from an order of the court below refusing to declare a deed fraudulent and void and to order a reconveyance to the plaintiff.
On February 20, 1955, Bernard Finnin secured the signature of Patrick F. Gallagher and his wife, who has since died, on a deed conveying a 16.3 by 50 foot parcel of land located next door to the Gallagher house. Bernard Finnin then built a dry cleaning establishment on this lot. On April 26, 1961, Benard Finnin and his wife, Dorothy M. Finnin, conveyed these premises to Charles M. Davis. This conveyance was motivated by the indebtedness of the Finnins to Davis.
Patrick F. Gallagher initiated an action in equity in April of 1962, alleging that the above conveyance by him to the Finnins was fraudulently obtained and praying, among other things, for a reconveyance of these premises by Charles M. Davis.
The court below, after a hearing, entered an order granting a non-suit as to defendant Davis and adjudged the defendants Finnins to be indebted to the plaintiff, Gallagher, in the amount of $500, the unpaid consideration recited in the deed of 1955. The plaintiff then moved to have the non-suit removed, and it is from the order of the Court of Common Pleas of Montgomery County refusing to remove the non-suit that he appeals to this Court.
[ 201 Pa. Super. Page 415]
The defendant Davis contended in the court below and in argument before our Court that he is an innocent bona fide purchaser for value and is therefore protected by the recording acts. The court below did not pass on this contention as its order granting the non-suit was based on the insufficiency of the evidence to establish fraud.
In Easton v. Washington County Insurance Company, 391 Pa. 28, 37, 137 A.2d 332 (1957), our Supreme Court stated: "In order to obtain the reformation of a contract in equity,... the moving party is required to show by clear, precise and indubitable evidence either fraud or mutual mistake. Brandolini v. Grand Lodge of Pennsylvania, 358 Pa. 303, 305, 56 A.2d 662 (1948); Broida v. Travelers Insurance Co., ...