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decided: October 9, 1969.


Appeal from decree of Court of Common Pleas of Bucks County, May T., 1961, No. 726, in case of Donald N. MacKubbin v. Rosedale Memorial Park, Inc. et al.


F. C. Fiechter, Jr., for appellant.

Joseph J. Cohen, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result.

Author: Cohen

[ 435 Pa. Page 375]

The facts found by the chancellor and affirmed by the court en banc are as follows: Appellant's assignor (Blanche Peters for herself and as administratrix for her sister, Elizabeth Peters) received from Thomas A. Morris (Morris), President of Evergreen Memorial Park (Evergreen), a deed representing 212 burial lots in Evergreen in exchange for deeds to other burial lots. These new lots, however, were located in and owned by neighboring King David Cemetery (King David). This error was the result of a mistake by Morris who selected the lots to be given to the Peters in exchange for the lots surrendered. Since Morris lacked authority to convey King David property, Evergreen's deed was a nullity.

In 1959, Evergreen was adjudged bankrupt and Rosedale Memorial Park, Inc. (Rosedale) purchased

[ 435 Pa. Page 376]

    from the trustee in bankruptcy Evergreen's cemetery lands subject to the outstanding rights of burial and sepulchre.

Appellant brought this action in equity against Rosedale (which refused to recognize appellant's right in the 212 lots), the trustee in bankruptcy, King David, and Morris, to locate the lots of which appellant was the owner or such other relief, including reformation of the deed, that the court deemed proper. The decree of the chancellor dismissed the complaint as to all defendants except Morris, who has made the original "mistake" in selecting the lots conveyed to appellant, and against whom it was decreed that appellant could recover the market value of the original lots surrendered.

There can be no doubt that appellant's assignor was damaged. Properties of value were exchanged for a deed which conveyed nothing. But the chancellor found, and the court en banc agreed, that there was ample testimony that Rosedale was a bona fide purchaser, for value and without notice, of Evergreen's property. Despite appellant's allegation that Rosedale had knowledge or some kind of constructive notice of appellant's claim, the lower court found no evidence that Rosedale learned of any claim based on the deed given appellant, or for the burial lots exchanged therefor until August, 1961, one year after Rosedale's purchase of the property. Equity protects innocent purchasers by providing that a bona fide purchaser for value and without notice has a perfect defense in a suit brought by a holder of a prior equitable claim. Witherow v. Vlachos, 401 Pa. 576, 165 A.2d 373 (1960);*fn1 Lenheim v. Smith, 54 Pa. Superior Ct. 147

[ 435 Pa. Page 377]

(1913); Annot., 79 A.L.R. 2d 1180; Pomeroy, Equity Jurisprudence, 5th ed. §§ 767, 776, 870; Restatement, Restitution § 13;*fn2 Williston, Contracts, rev. ed. § 1548 at 4341.

Appellant also contends that if reformation is unacceptable, he should recover the burial lots which were surrendered for the nonexistent lots. He is asking for rescission or a declaration that the transaction is void for lack of consideration. Again the existence of an innocent purchaser must bar the requested relief. Rosedale justifiably relied on the absence of any claim by the Peters against the lands purchased by Rosedale from the trustee. The failure of appellant or the Peters to register their claim with Evergreen or the trustee permitted an innocent party to make a bona fide purchase. Equity will not impose additional obligations on such a purchaser.

Decree affirmed at appellant's costs.


Decree affirmed.

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