Appeal from decree of Court of Common Pleas of Bucks County, May T., 1966, No. 380, in case of Alfonso L. Pierro v. Joseph A. Pierro et ux.
Carl M. Mazzocone, with him Glenn A. Troutman, and Sheer & Mazzocone, and Power, Bowen & Valimont, for appellant.
Frank Carano, with him Charles H. Dorsett, Jr., and Carano and Kunken, and Eastburn & Gray, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissent.
Appellant, Alphonso Pierro, instituted this action in equity against his brother and sister-in-law, Joseph and Marie Pierro, appellees, to compel specific performance of a provision in an agreement relating to the conveyance of a portion of a farm and to construct a trust.
On June 16, 1946, appellant loaned to his brother $2,000 with the loan agreement calling for repayment in five years with interest at an annual rate of four percent. The agreement further provided that if the amount loaned were not repaid within five years, Joseph would transfer to Alfonso ten acres of his 45 acre farm located in Jamison, Bucks County in satisfaction of the debt. The ten acres to be conveyed were not identified except for the stipulation that no more than 50% of the parcel would front on either Poor House or Dark Hollow Roads. This agreement was put into writing on June 6, 1948, and the agreement bears a
notation that in lieu of interest after June 16, 1948, the provision calling for the transfer of the ten acres would become effective.
Joseph and Alphonoso entered into a subsequent loan agreement on October 17, 1947, which provided that Alphonso was to loan his brother $1500 on condition that the sum be repaid within five years with an annual interest rate of 4%. The agreement further provided that if the sum were not paid within five years Joseph would transfer to Alphonso 7 1/2 acres of his farm. Again the land is not described, but the agreement contains the condition that no more than 50% of the parcel would front on either Poor House or Dark Hollow Roads. This agreement was also put into writing on June 6, 1948. The agreement bears the notation that $500 was repaid on April 17, 1954 and that in lieu of interest after April 17, 1959 the provision relating to the transfer of the 7 1/2 acres was to become effective.
On April 15, 1966, Joseph transferred the farm to himself and his wife as tenants by the entireties. Subsequent to that appellees tendered to appellant $4400 in payment of principal and interest on the loans which appellant refused.
After the pleadings had been filed, appellees moved for judgment on the pleadings. In an opinion dated January 15, 1968, the lower court stated that although specific performance could not be had because the writings were not sufficient under the Statute of Frauds, Act of March 21, 1772, 1 Sm. L. 389, § 1, 33 P.S. § 1, and although a constructive trust could not be imposed, the motion was being denied because the complaint stated a cause of action for fraudulent conveyance which, if proven, could result in the conveyance to appellees being set aside. ...