McGuire Et Ux. v. Sann Et Ux. , 291 Pa. 171 ( 1927 )

Argued October 3, 1927. William A. McGuire, one of appellants, purchased, at tax sale, the lot of ground in controversy, situated in Westmont Borough, Cambria County, fronting 200 feet on Luzerne Street and extending back, along Princeton Avenue, preserving the same width, 150 feet to an alley. Appellee, Ferdinand Sann, received a deed for the same property from Louis Wolf and wife. The source of Wolf's title is not disclosed in the record. McGuire's deed, from the treasurer of Cambria County, bears date June 10, 1918, and was recorded July 14, 1920, and Sann's deed from Wolf and wife is dated August 8, 1916, the date of its recording not stated in the record. A dispute between the parties having arisen as to their respective titles to the property, it was finally orally agreed to divide the lot, McGuire and wife to receive 100 feet fronting on Luzerne Street, at the corner of Princeton Avenue and extending back to the alley, and the wife of Sann to receive title to the remaining 100 feet.

To carry out this understanding it was agreed that McGuire and wife should execute their deed for the entire property to appellee, Ferdinand Sann, who in turn agreed to reconvey one-half to McGuire and wife and the remaining half to appellee's wife, Marie B. Sann. For the purpose of completing this agreement, three separate deeds were prepared: (1) McGuire and wife to Sann, for the entire lot, (2) Sann and wife to McGuire and wife for 100 feet at the corner of Luzerne Street and Princeton Avenue and (3) Sann to his wife for the remaining 100 feet of Luzerne Street frontage. On May 6, 1925, all parties, except Mrs. Sann, who was absent on account of illness, met at the office of a notary public and signed and acknowledged the deeds above referred to. It being understood and agreed that the three deeds should remain in the possession of the notary until ten o'clock the following morning, May 7, 1925, at which time, all parties being present, after Mrs. Sann had executed the conveyances, and the necessary revenue stamps attached and cancelled, delivery would be made to the parties entitled to receive their respective conveyance. Previous to 10 o'clock on the morning of May 7th, Mrs. Sann and her husband visited the notary's office, where she executed the deeds. After her so doing, Sann by falsely and fraudulently representing to the notary that under a new and later arrangement with McGuire the deeds were to be taken by the former to the latter's office, and the transaction there completed, obtained possession of the conveyances, and without notice to or knowledge of McGuire, proceeded immediately to the county recorder's office at Ebensburg and recorded the deed of McGuire and wife to Sann. McGuire called at the office of the notary at ten o'clock, May 7th, and upon learning that Sann had earlier visited the office and secured possession of the deeds, contrary to the agreement of the parties, immediately endeavored to locate him, without avail however, and discovered later in the day, on communicating with the recorder by telephone, that the deed of himself and wife to Sann had been recorded, and that Sann had left the recorder's office with the recorded deed in his possession.

Subsequent to this action on the part of Sann, McGuire and wife filed their bill, which was taken pro confesso in default of an answer, in which the facts set forth are substantially stated above, and were so found by the court below, and a decree nisi entered requiring Sann and wife to surrender and deliver up, for cancellation, the deed from McGuire and wife to him, and further that the conveyance be stricken from the record. Following the nisi order and before final decree plaintiffs, under Equity Rule 56, amended their bill by praying, (1) that defendants be required to deliver back to the possession of the notary public the three deeds, previously executed by the parties, for the property in question and (2) that they be required to specifically perform the contract entered into for a division of the land. The court, being of opinion that plaintiffs, having prayed in the original bill for cancellation of the three deeds as being fraudulent and a cloud on their title, were precluded from later amending their prayers by asking that the contract be restored and performance decreed, refused to allow the amendments and directed that the nisi decree become final. Plaintiffs appealed.

In refusing the amendments, and directing that the nisi order be final, we are of opinion the court committed error. The amendments offered were in time and entirely written within the purview of Equity Rule 56, which allows amendments, as of course, at any time before final decree, so far as relates to prayers for relief. The amendments clearly eliminated the prayer for return of the deeds to plaintiffs and substituted delivery to the notary public, in whose possession they were by agreement temporarily deposited, to there remain, until the parties met the following morning to finally close the transaction. Refusal to allow the amendments, being error, as above indicated, the proceeding must be referred back to the court below for further action.

The decree of the court below is reversed, the motions for leave to amend the prayers for relief are made absolute, and the record remitted, with directions to answer over, and have the proceeding heard in due course; in the event, however, of defendants' failure to answer, a decree for specific performance as prayed for by plaintiffs, in their amended bill, should be made. Costs to abide final disposition of the case.