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BARBARA MCKNIGHT v. JAMES MCKNIGHT (09/20/85)

filed: September 20, 1985.

BARBARA MCKNIGHT
v.
JAMES MCKNIGHT, APPELLANT



APPEAL FROM THE JUDGMENT ENTERED ON FEBRUARY 3, 1984, IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, EQUITY No. 6672 OCTOBER TERM, 1983

COUNSEL

Jules Mermelstein, Hatboro, for appellant.

Mercer D. Tate, Philadelphia, for appellee.

McEwen, Cercone and Trommer,*fn* JJ.

Author: Trommer

[ 345 Pa. Super. Page 551]

Appeal is taken from the judgment entered pursuant to an order of the trial court partitioning land held by the parties as tenants in common. We reverse.

[ 345 Pa. Super. Page 552]

Appellant and appellee were married on February 28, 1953. On June 2, 1959, they purchased the real estate in question as tenants by the entireties. On July 19, 1982, they were granted a divorce, pursuant to which neither party requested equitable distribution of the marital property. On November 4, 1983, appellee filed a Complaint in Partition, seeking partition and division of the premises in accordance with 68 P.S. § 501, et seq. On February 1, 1984, subsequent to a hearing on appellee's Motion for Judgment on the Pleadings, the trial court ordered that the property be partitioned and the proceeds divided equally between the parties, and appointed a Master in Partition.

Appellant contends on appeal that the trial court erred in granting the motion because he had alleged the equitable defense of lack of clean hands. The defense consisted of his reliance on an oral agreement between the parties that he would keep the subject real estate while appellee would keep some real estate which she had purchased in her name alone.

Initially, we note that subsequent to the parties' divorce, they owned the real estate as tenants in common pursuant to the partition statute:

Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value . . .

Act of May 17, 1949, P.L. 1394, § 1, 68 P.S. § 501.

The parties' alleged oral agreement regarding the real estate was to transfer appellee's share of the property to appellant. As this agreement transferred an interest in the property, it would ordinarily be unenforceable as violative of the statute of frauds. Act of March 21, 1772, 1 Sm.L. 389 Section 1, 33 P.S. § 1. However, an exception is recognized for an oral partition of property ...


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