Richard P. Nuffort, Geisenberger, Zimmerman, Pfannebecker & Gibbel, Lancaster, for appellant.
John P. Hohenadel, Lancaster, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, and Nix, JJ. Pomeroy, J., filed a concurring opinion. Roberts, J., concurs in the result. Manderino, J., did not participate in the consideration or decision of this case.
Appellant husband brought this equitable action seeking to set aside a conveyance to his wife, the appellee, of
his interest in their jointly held residence. The basis of appellant's claim is that the real estate was conveyed under circumstances which give rise to a constructive trust. At the close of appellant's case the chancellor entered a compulsory non-suit. Appellant's motion to take off the non-suit was denied,*fn1 and this appeal followed.*fn2
A judgment of non-suit is properly entered if "the plaintiff shall have given no such evidence as in law is sufficient to maintain the action. . . ." Act of March 11, 1875, P.L. 6, § 1, as amended, 12 P.S. § 645 (Supp.1975); see Pa.R.C.P. 1512.
"It is hornbook law that a judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him together with all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor [citations omitted]."
Flagiello v. Crilly, 409 Pa. 389, 390-91, 187 A.2d 289, 290 (1963). See Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970), and the cases cited therein. The issue before us is whether under this standard appellant presented at trial sufficient facts to make a prima facie showing that his wife took the property interest in question as a constructive trustee for her husband. Finding that a non-suit was improperly granted under this standard, we must reverse and remand for a complete trial.
The parties were married on January 20, 1950, and are still lawfully married. They later purchased the property in question, subject to a mortgage, taking title in joint names as tenants by the entireties. On January 3, 1972, the mortgage debt was satisfied and on January 26, 1972, appellant executed a deed to his wife of his undivided
one-half interest in the property for a recited consideration of $1.00.*fn3 The opinion of the chancellor in support of his order refusing to take off the non-suit accurately summarizes appellant's account of the circumstances surrounding his signing of the deed:
"The plaintiff received no money to sign the deed and no promises were made by the defendant if he would sign the property over to her. There was no agreement or understanding between the parties that the title to the property was to be transferred to the defendant. According to the plaintiff he was asked by ...