Kalyvas v. Kalyvas

Decision Date24 June 1952
Docket Number7655
Citation371 Pa. 371,89 A.2d 819
PartiesKALYVAS v. KALYVAS et al.
CourtPennsylvania Supreme Court

Argued April 2, 1952

Appeals, Nos. 109 and 110, March T., 1952, from order and judgment of Court of Common Pleas of Allegheny County, Jan T., 1949, No. 1178, in case of James G. Kalyvas v Anthanasios J. Kalyvas, also known as Athanasios Kalyvas George Kalyvas and Aristomenes Kalyvas. Order and judgment reversed.

Bill in equity to quiet title to real estate. Before SOFFEL, J.

Adjudication filed finding for plaintiff; exceptions to adjudication sustained and order entered dismissing bill, before SOFFEL, SMART and WEISS, JJ., opinion by WEISS, J., concurred in by SMART, J., dissenting opinion by SOFFEL, J. Plaintiff appealed.

The Order and Judgment of the Court below is reversed and the Order of the Trial Judge dated December 29, 1950, is reinstated and affirmed.

John A. Metz, Jr., with him Metz & Metz , for appellant.

Alexander Cooper , with him Morris Zimmerman , for appellee.




Plaintiff brought an action against his three sons to quiet title to real estate. The action was brought pursuant to Pa. R.C.P., Rule 1061 et seq. Although the action is an action at law it embraces all the equitable jurisdiction which was formerly exercisable under a bill quia timet.

We agree with the trial judge and the Court en banc that this is the type of family dispute which should never have been aired in court but should have been settled by agreement of the parties. The transactions reflect no credit upon any of the parties involved and especially none on the father whose actions throughout this entire matter have been, as we shall see, unfair to his creditors, his children and his wife.

We deem it unnecessary to give a detailed account of the voluminous evidence or the contradictory promises and agreements, charges and counter-charges; we believe the following statement of important facts will suffice.

Plaintiff and his wife by deed dated January 29, 1940, became owners of the premises known as 2553 Penn Avenue and 66 26th Street, Pittsburgh, Pennsylvania, in fee simple as tenants by the entireties. Plaintiff and his wife, by deed dated June 26, 1941, conveyed the premises to their three sons, the defendants. The deed was immediately recorded. The defendants by deed dated July 29, 1941, reconveyed the premises to the plaintiff. The deed was prepared, signed, acknowledged and actually delivered to the plaintiff on that date at the office of Theos E. Manos, who was a member of the Allegheny County Bar and attorney for all the parties. The plaintiff failed to record this deed until July 10, 1946. Deendants on January 9, 1946, six months prior to the date on which their father recorded their deed to him dated July 29, 1941, conveyed the premises to a straw man, who, the same day, reconveyed the premises to the three sons and the plaintiff as joint tenants with right of survivorship. Both of these deeds of January 9, 1946, were immediately recorded. All of the foregoing facts are undisputed.

Plaintiff came to Pittsburgh from Greece about 1922 and thereafter rented the premises in controversy for a hotel and restaurant business. In 1931 he brought over his eldest son and in 1939 the rest of his family. Except during the time when the defendants were in the military service of the United States they worked with their father in the conduct and operation of the hotel and restaurant business between 12 and 14 hours a day, generally 7 days a week, without any salary or pay. Plaintiff and the oldest son were partners on June 26, 1941 and on July 29, 1941. The family was exceptionally closely knit, although the father by virtue of old world customs was the patriarch and dominant influence in the household.

Mr. Manos testified that the reason for the original deed of June 26, 1941, from the father and mother to the sons was to put the property beyond the reach of a presently existing pressing creditor of the father; in other words, to cheat and defraud creditors. No one, so far as the evidence discloses, informed the plaintiff's wife of her rights in the property or explained to her that she was relinquishing those rights by the execution of this deed. Mr. Manos testified that the three defendants orally agreed to reconvey the property to the plaintiff upon his demand. The defendants denied this agreement and alleged a different oral agreement, viz., that they purchased the property for $2,100 and gave their check in payment and further agreed that each of them and the plaintiff would acquire equal shares in the real estate with the right of survivorship, although at plaintiff's suggestion the deed was made to the defendants alone. It should be noted that the defendants had three different versions of this oral agreement. The trial Judge believed Mr. Manos, although his testimony with respect to the check being paid out of and the proceeds thereof being repaid into the business do not appear to us to be very clear or convincing.

With respect to the deed from the defendants dated July 29, 1941, reconveying this property to the plaintiff, Mr. Manos testified on behalf of the plaintiff that it was drawn, executed and acknowledged in his office and was delivered to plaintiff by defendants at plaintiff's request in pursuance of the above-mentioned oral agreement to reconvey the property whenever the plaintiff demanded. This deed was not recorded by the plaintiff, as we have seen, until July 10, 1946. It is likely that the reason it was not immediately recorded was because plaintiff did not settle with or pay his creditor in full until April 30, 1945. Why it was not thereafter recorded has never been disclosed.

The defendants gave an entirely different reason for the execution and delivery by them of the deed of July 29, 1941 to the plaintiff. There was a $6,000 mortgage on the real estate and unpaid debts of the business totaled approximately $4,000. Their father was afraid they would leave the business and work for their uncle who had started a restaurant business in the same block. The father therefore promised them, so they testified, that if they would execute the above-mentioned deed to him, he would not record it but would keep it until all the mortgage indebtedness and the debts of the business were paid, at which time he would return the deed to them and cause a new deed to be made in the name of all four of them. They also alleged that a confidential relationship existed between them at that time. Although the mortgage indebtedness and the business debts were paid off mainly out of the earnings of the business prior to February, 1943, the defendants did nothing to assert their rights or to compel the performance of this alleged oral agreement until January 9, 1946, when they made a conveyance of the property to a straw man who in turn executed and delivered to them a deed to themselves and the plaintiff dated January 9, 1946, which they immediately recorded. In spite of this litigation, they still continue to work in their father's restaurant business.

The case is unusual in that the Court en banc overruled the trial Judge's findings of fact -- the trial Judge filed a dissenting opinion. The trial Judge considered Mr. Manos' testimony was credible and that of the defendants was not credible; and his findings of fact were based mainly upon Mr. Manos' testimony.

With respect to inferences and deductions from facts and conclusions of law, both the Court en banc and the appellate Courts have the power to draw their own inferences and make their own deductions and conclusions: Barrett v. Heiner, 367 Pa. 510, 80 A.2d 729; Noonan Estate, 361 Pa. 26, 63 A.2d 80; Payne v. Winters, 366 Pa. 299, 77 A.2d 407; Smith v. Smith, 364 Pa. 1, 70 A.2d 630.

Where, however, a finding of fact is a true and genuine finding of fact which depends upon the credibility of a witness or witnesses whom the trial Judge has seen and heard, such finding is entitled to great weight and should be disregarded or overruled only in clear cases: Belmont Laboratories, Inc. v. Heist, 300 Pa. 542, 151 A. 15; Bortz v. Troth, 359 Pa. 326, 59 A.2d 93. In the leading case of Belmont Laboratories, Inc. v. Heist, 300 Pa., supra, this Court said (p. 547): "... the chancellor's findings, where as here depending upon conflicting oral evidence, given by witnesses which he saw and heard, must receive great weight.... The court in banc can properly disregard such findings only in a clear case and then by putting upon record its reasons for so doing.... (page 548) Where reasons are so given, it becomes the duty of an appellate court to fully and carefully examine them, together with the entire record, and determine whether the action of the court in banc is justified, keeping in mind the weight to which the original findings are entitled and also the reasons given for their overthrow."

The reasons given by the Court en banc for rejecting the findings of the trial Judge are not sufficiently convincing. The conspiracy, intentional or unintentional, entered into by these parties and the weaknesses in each of their claims made it very difficult to determine which side was telling the truth. For example, the deeds and conveyances of June 26 and July 29, 1941, were undoubtedly part of plaintiff's scheme to defraud his creditors; the plaintiff perpetrated a legal fraud on his wife in that he failed to tell her the rights she was giving up in executing with him the deed to their children; plaintiff failed to record the deed of July 29, 1941 until July 10 1946, a year after his creditors had been paid; plaintiff did not take the witness stand to deny or refute defendants'...

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