decided: February 28, 1977.
GRACE A. SALZMAN, APPELLANT,
LLOYD H. MILLER AND MARY V. MILLER, ADDED DEFENDANT
James P. Coho, Lancaster, for appellant.
No appearance for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Manderino, J., concurs in the result. Roberts, J., filed a dissenting opinion in which Jones, C. J., joins. Nix, J., took no part in the consideration or decision of this case.
[ 471 Pa. Page 106]
This is an appeal from a final decree in equity which ordered specific performance of an agreement for sale of real property.*fn1
In July 1968, appellant and her late husband entered into a written lease agreement with appellee Lloyd H. Miller*fn2 for the property which is the subject of this suit.*fn3 The term of the lease was one year, with an option
[ 471 Pa. Page 107]
to purchase within two years. The agreement also provided that the optionees, if they exercised the option, would accept a deed for the property from one Everett McDonald. At the time he entered into this lease-option agreement, Mr. Miller had in his possession a deed to the property in question which was signed by Everett McDonald and his wife. The space in the deed for the grantee's name, however, was blank, and the deed apparently was not acknowledged. In January, 1969, appellant or her late husband orally communicated to Mr. Miller their desire to exercise the option, and this communication was orally acknowledged by Mr. Miller. Thereafter, Mrs. Salzman or her husband made several attempts to arrange for settlement, but Miller either refused or neglected to fix a date. In February, 1973, Mr. and Mrs. Miller received a second deed to the property from the McDonalds.*fn4 This deed named the Millers as grantees as tenants by the entireties, and was subsequently recorded.
Appellant commenced the present action for specific performance of the lease-option agreement in September, 1973. The final decree ordered the Millers to convey the property to appellant, but subject to Mrs. Miller's "inchoate intestate rights."*fn5 On this appeal, appellant argues that Mrs. Miller had no intestate rights in the property,
[ 471 Pa. Page 108]
and therefore the trial court should have ordered that the conveyance to appellant be free and clear of all encumbrances.
In concluding that the property here at issue should be conveyed subject to Mrs. Miller's "inchoate intestate rights," the lower court reasoned as follows:
"The deed in question [deed of February, 1973 from McDonald and his former wife naming the Millers as tenants by the entireties] was executed and delivered after execution of the lease-option agreement, the latter being entered into at a time when defendant, Lloyd H. Miller, did not have title to the property . . . . The fact that Lloyd H. Miller did not have title to the property when he signed the lease-option agreement is immaterial under the doctrine of estoppel by deed. However, his having taken title in his and his wife's name as tenants by the entireties requires that Mary V. Miller, his wife, execute the deed to plaintiff for the purpose of passing the title; but since the lease-option agreement was not signed by the wife, her inchoate intestate interest is not affected. . . ."
For several reasons we believe the trial court's reasoning is erroneous. First, as the quoted portion of the opinion indicates, in applying the doctrine of estoppel by deed the court gave effect to the second deed naming the Millers as grantees holding as tenants by the entireties. It is clear, however, that Mrs. Miller could not obtain any "intestate" rights by virtue of this deed. If Mrs. Miller had any interest in the property, it was by virtue of being a tenant by the entireties. It is fundamental that in a tenancy by the entireties, each spouse owns the entire estate as long as both are living. Gasner v. Pierce, 286 Pa. 529, 134 A. 494 (1926). The survivor continues to hold not as a new estate, but as a continuation of the previous one. Porobenski v. American Alliance Ins. Co., 317 Pa. 410, 176 A. 205 (1935).
[ 471 Pa. Page 109]
Second, and more importantly, if any effect is to be given to the deed naming the Millers as grantees holding as tenants by the entireties, then the trial court erred in decreeing specific performance. As already noted,*fn6 Mrs. Miller did not sign the lease-option agreement. Nor is there any evidence in the present record which indicates that she was aware of the transaction with the Salzmans, acquiesced in it, or in any way ratified it. We have held that a husband's attempt to alienate or encumber an estate by the entireties absent his wife's joinder violates the Statute of Frauds and is unenforceable against the wife. Del Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974); Schweitzer v. Evans, 360 Pa. 552, 63 A.2d 39 (1949). Thus, unless an estoppel theory were applied to divest Mrs. Miller of her interest in the entireties property, a course of action eschewed by this Court in the past, see Del Borrello, supra; Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); Peterson v. Chandler, 362 Pa. 102, 66 A.2d 284 (1949), specific performance could not be granted if effect is given to the deed to the entireties.
While we have concluded that the trial court's reasoning is incorrect, it does not necessarily follow that its final decree was incorrect. Resolution of the case depends upon (1) the effect, if any, which should be given to the blank deed held by Mr. Miller, and (2) the effect, if any, which should be given to the second deed naming the Millers as grantees holding as tenants by the entireties. After having reviewed the record, we are convinced that these issues cannot be resolved properly without more information than is presently in evidence.*fn7
[ 471 Pa. Page 110]
We thus hold that neither the reasoning of the trial court nor the evidence of record supports its decree, and that there are undisclosed and unresolved facts, some of which we have adverted to, which must be established before the rights of the parties to this suit can be intelligently ascertained and adjudicated.
The decree is vacated and the case remanded for further proceedings consistent with this opinion. Each party to pay own costs.
[ 471 Pa. Page 111]
ROBERTS, Justice, dissenting.
I dissent, and would affirm the Chancellor's decree.
In 1969, appellant and her late husband exercised an option to purchase real property under a lease agreement with appellee Lloyd H. Miller. At the time the option was exercised, Mr. Miller had in his possession a deed to the property, signed by Everett McDonald and his wife, with the grantee's name in blank. In 1973, Mr. Miller and his wife, Mary V. Miller, received a deed to the property, in tenancy by the entireties, from the McDonalds.
In this action for specific performance, the Chancellor decreed specific performance of the agreement to sell the property, subject to the intestate share of Mrs. Miller.
If Mr. Miller acquired title to the property by virtue of the deed in blank, then appellant is entitled to specific performance. Since Mrs. Miller did not sign the lease agreement, however, any conveyance would still be subject to her intestate rights.*fn1
If, on the other hand, Mr. Miller did not acquire any title to the property until the 1973 deed to him and his wife, as tenants by the entireties, Mrs. Miller has a far greater interest in the property.*fn2 Since Mrs. Miller has not appealed from the Chancellor's decree, however, she is entitled only to her intestate rights, as decreed by the Chancellor.
Thus, I see no need to remand to the Chancellor to determine whether Mr. Miller had title at the time the option to purchase was exercised, for I would affirm the Chancellor's decree whether or not Mr. Miller had title at that time.