Edwin S. Moore, III, Philadelphia, for appellant.
Louis W. Fryman, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
This suit in equity was brought by Gloria Masgai to obtain a partition of a parcel of real estate in Philadelphia, held in the joint names of the plaintiff and defendant. The title of the parties is derived from the most recent deed to the property, dated May 15, 1968 and duly recorded, wherein they are named as "James Masgai and Gloria, his wife," and their capacity as takers is described as "tenants by the entireties."*fn1
James Masgai, in his answer to the complaint, denied that Gloria had any interest in the premises or was entitled to partition and asserted that he was the sole owner. After a trial the chancellor found in favor of James, declaring him to be the sole owner, forbade plaintiff from asserting any right, title or interest in the property, and dismissed the complaint. Exceptions were dismissed by a court en banc and a final decree entered. This appeal followed.*fn2
It is undisputed that James Masgai and Gloria Masgai were never formally married. They lived together, however, as husband and wife intermittently over a three year period between 1966 and 1969. Gloria called herself "Mrs. Masgai" with the knowledge and consent of James. During this period the parties maintained several charge accounts in their joint names at retail stores; they also filed joint income tax returns as husband and wife.
While in this relationship, James decided to buy a home, and entered into an agreement for the purchase of the property here involved. The purchase price consisted of a $1600 down payment made at the time of executing
the agreement and the assumption by the grantees of the balance of an existing installment mortgage on the premises in the amount of approximately $8200.*fn3 James made all of the mortgage payments until January of 1969, when difficulties with his "wife" caused him to leave the house. The next five payments on the mortgage obligation were made by Gloria. In October of 1969 she also left the residence, although her daughter continued to live there. This action was brought in 1972.
Preliminarily, we observe that it is not possible for two persons who are not married to one another to hold title to land as tenants by the entireties; marriage is an essential ingredient of such an estate. Simpson v. Simpson, 404 Pa. 247, 172 A.2d 168 (1961); Pennsylvania Bank & Trust Co. v. Thompson, 432 Pa. 262, 247 A.2d 771 (1968). Whether the joint title of appellant and appellee is that of joint tenants with a right of survivorship or that of tenants in common is "a question of fact and intention;" Simpson v. Simpson, supra, at 265 of 404 Pa., at 172 of 172 A.2d; its resolution depends particularly upon whether or not an intention to create a right of survivorship either appears in the language of the conveyance or can be derived from the situation of the parties. Simpson v. Simpson, supra; see also Pennsylvania Bank & Trust Co. v. Thompson, supra; First Federal Savings & Loan Assoc. of ...