Brotman v. Brotman
| Decision Date | 25 March 1946 |
| Citation | 353 Pa. 570,46 A.2d 175 |
| Parties | Brotman v. Brotman, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 14, 1946
Appeal, No. 194, Jan. T., 1945, from decree of C.P. No. 4 Phila. Co., June T., 1943, No. 2896, in case of Joseph H Brotman v. Miriam Brotman. Decree reversed, in part, and record remanded.
Bills in equity. Before BROWN, J.
Decree entered in favor of plaintiff. Defendant appealed.
That portion of the final decree directing that "the defendant, Miriam Brotman, shall transfer to plaintiff Joseph H. Brotman, title to premises 4121 Viola Street and 4120 Parkside Avenue, Philadelphia, Pennsylvania, by joining in the execution of deed, together with plaintiff, her husband, conveying said property to him, within thirty days, and that she shall not subsequently interfere in any manner with the use, enjoyment or control of the property by plaintiff" is reversed, and the record remanded to the court below for further hearing consistent with this opinion.
C. Brewster Rhoads , with him George G. Chandler, David N. Feldman and Edward I. Weisberg , for appellant.
Joseph Blank , with him S. Frank Laveson , for appellee.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON and JONES, JJ.
Plaintiff, Joseph H. Brotman, filed a bill of complaint against his wife, Miriam, to recover possession of certain machinery, equipment and material. Later, he brought a second suit in equity against her and The Western Saving Fund Society of Philadelphia, inter alia, to compel his wife to execute a deed to him for the premises situated at 4121 Viola Street and 4120 Parkside Avenue, Philadelphia (which plaintiff averred he had purchased from her under an oral contract of sale); and also to require The Saving Fund Society, the other defendant, to pay over to him certain moneys on deposit in Mrs. Brotman's name (which plaintiff claimed was his own money that he had turned over to his wife for safekeeping in connection with a proposed purchase of other property, but which was not bought). Mrs. Brotman filed answers in both suits raising questions of fact; while The Saving Fund Society, in its answer to the second bill, averred it was but a stakeholder. The two cases were consolidated and tried as one on stipulation of counsel. After hearing, the learned Chancellor decreed that Mrs. Brotman deliver to plaintiff the machinery, equipment and material, also a deed for the premises in question, and that she pay to him the moneys he left with her for safekeeping. The court en banc entered a final decree dismissing the exceptions of Mrs. Brotman and affirming the action of the Chancellor. From that decree, she appealed.
The sole question raised here by appellant is whether or not the court below erred in ordering specific performance of the oral contract for the sale of the real estate.
The pertinent facts are as follows: On September 26, 1941, while Mrs. Brotman and her husband were estranged and living apart, she purchased, but took title in the name of her son Leon, the real estate located at 4121 Viola Street and 4120 Parkside Avenue (which are but one property) for $6,900, of which $700 was paid in cash by her and the balance secured by a purchase money mortgage. Three days after the sale, the son executed a deed transferring title to his mother. She and her three sons have resided continuously in the premises from the date of the sale to the present time. On or about November 11, 1941, she induced her husband to return home, and orally agreed with him that she would transfer to him the title to the property in question, upon his assumption and payment of the mortgage, taking charge of the premises, and paying for the repairs. Plaintiff then returned to live with his wife and family in the property, expended considerable funds on repairs, paid a substantial sum on the mortgage indebtedness, induced his wife to record the deed from the son to her, and collected and retained the rents from the portion of the property under lease until May 31, 1943. Then he was prevented by his wife from gaining access to the property and from collecting the rents. Mrs. Brotman refused to deliver a deed to her husband, and he filed his bill to compel her so to do.
When an attempt is made by a husband to set up a parol contract of sale of real estate against his wife, the evidence must be direct, positive, express and unambiguous. See Ackerman v. Fisher, 57 Pa. 457; Wright v. Nulton, 219 Pa. 253, 68 A. 707; Glass v. Tremellen, 294 Pa. 436 144 A. 413. It is well settled in this Commonwealth, as was said by this court in Hart v. Carroll, 85 Pa. 508, 510, that in order to take a parol contract for the sale of real estate out of the operation of the Statute of Frauds, the evidence must, among other things, show: ...
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