Kittleberger & Evans v. Home Builders Co.
| Decision Date | 03 March 1933 |
| Docket Number | 187-1932 |
| Citation | 164 A. 821,108 Pa.Super. 264 |
| Parties | Kittleberger & Evans, Appellant, v. Home Builders Co. and County Natl. Bank, Clearfield |
| Court | Pennsylvania Superior Court |
Argued October 25, 1932
Appeal by plaintiffs from decree of C. P., Clearfield County February T., 1931, No. 4, in the case of W. Clark Kittleberger and Guy G. Evans, trading as Kittleberger & Evans v. Lanse S. Flaharty, Alice Flaharty, Home Builders Company, a corporation, and The County National Bank of Clearfield.
Bill in equity to set aside a judgment in ejectment and a conveyance of real estate. Before Chase, P. J.
The facts are stated in the opinion of the Superior Court.
The court dismissed the bill as to Home Builders Company and The County National Bank of Clear-field. Plaintiffs appealed.
Error assigned, among others, was the decree of the court.
Affirmed.
Clarence R. Kramer, for appellant.
W. Wallace Smith, and with him John C. Arnold, for appellees.
Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.
This case comes to us on an appeal from an order of the lower court dismissing, as to Home Builders Company and County National Bank of Clearfield, a bill in equity in which it was alleged that a judgment in ejectment was confessed and a deed was made collusively for the purpose of hindering and delaying the plaintiff, a judgment creditor, in collecting the judgment, and which asked that the judgment in ejectment and conveyance be set aside. Judgment was entered pro confesso against Lanse S. Flaharty and Alice Flaharty.
On June 6, 1924, the Home Builders Company entered into a written contract with Lanse S. Flaharty for the conveyance to him of a tract of land for the money consideration of $ 700 with interest. As a further consideration, the purchaser undertook to begin the construction of a dwelling house within sixty days to cost not less than $ 3,000. Prior to August 4, 1924, the agreement was modified by a verbal agreement in which the Home Builders Company agreed to assist the purchaser Flaharty in financing the building, and in pursuance thereof, that company furnished $ 5,400 to Flaharty, between August 4, 1924, and October 30, 1924. These advances were evidenced by three notes of $ 1,800 each, discounted at the County National Bank of Clearfield on the credit of the corporation. No part of the $ 700 was paid, but various payments were made on the advances so that on September 30, 1930, there was due by Flaharty on the original contract $ 990.85, and on the advances $ 4,217.97. To cover an existing indebtedness, Flaharty gave to the plaintiffs on March 1, 1929, a judgment note for $ 540, and on June 8, 1929, a similar note for $ 64.91. Judgment was confessed on the larger note on July 31, 1929, and on the other note on January 20, 1930.
In December, 1930, the Home Builders Company brought an action in ejectment against Flaharty, and, on the same date, Flaharty filed an answer admitting the facts set forth in the statement, and authorized an attorney to confess judgment. A deed for the premises was delivered by the Home Builders Company to Alice Flaharty, wife of Lanse S. Flaharty, and the Flahartys joined in a mortgage to the bank for $ 5,210.25, the amount of the money consideration and the balance of the advances made. The bill alleges that the effect of these proceedings was to "hinder, delay and defeat the creditors of Lanse S. Flaharty and amounts to a legal fraud"; that the amicable action in ejectment and the conveyance to Alice Flaharty, and the execution and delivery of the mortgage to the bank were the result of a pre-arranged plan among all of the defendants, and "were designed to give the County National Bank a first lien against the real estate and to defeat the judgments held by plaintiffs"; and that before the delivery of the deed and mortgage and the entry of the judgment in ejectment, there was an agreement between the Home Builders Company and the Flahartys that if the interest of Lanse S. Flaharty should be defeated, the premises would be conveyed to the wife, the equity of redemption of Lanse S. Flaharty removed, and the Home Builders Company and the bank preferred. It was further alleged that the result of this transaction was to dispose of all the property of Lanse S. Flaharty in the state of Pennsylvania, except household goods of a value less than the exemption allowed by law, and that the plaintiff knew of no assets of any kind owned by said Flaharty at any place, other than said household goods.
It is the contention of the appellants that these facts, which on a motion to dismiss must be assumed to be true, constituted a legal fraud. The appellants, in their printed argument, make the statement: We are all of the opinion that the essential elements of legal fraud are absent. "Where fraud is set up as a ground for relief the facts which constitute it must be averred": Levine v. Pgh. State Bank, 281 Pa. 477, 482, 127 A. 68. The mere averment of a conclusion is without avail unless supported by a statement of facts. General averments of matters which in themselves are legal conclusions or inferences from facts not stated are insufficient. This applies with particular force to charges of fraud and undue influence. It should appear of what the fraud or undue influence consists. See Kaufman v. Cooper Iron Co., 105 Pa. 537; Gross v. Exeter Machine Works, 277 Pa. 363, 121 A. 195; McGowan v. Boney, 74 Pa.Super. 123. : Damon v. Bache, 55 Pa. 67, 69. The money payments due on the contract for the sale of the land were long overdue, and a comparatively small portion of the funds advanced for the construction of the building had been repaid. The purchaser, by his answer in the ejectment case, admitted his failure to comply with the agreement. The vendor, the Home Builders Company, was entitled to have the stipulated consideration paid or have the...
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