133 A. 31 | Pa. | 1926
Bill to set aside deed. Before DREW, J.
The opinion of the Supreme Court states the facts.
Decree for plaintiff. Defendants appealed.
Error assigned was, inter alia, decree, quoting it. On March 3, 1919, the defendant, Robert T. Purcell, completed the purchase of the property known as No. 69 McMunn Avenue, Crafton, Pennsylvania, paid the consideration therefor in full with his own funds and took a deed to himself. Thereafter, on October 10, 1923, through a third party, he had the title transferred to himself and wife as an estate by entireties. At the latter date Purcell was wholly insolvent and indebted to plaintiff in approximately $13,000, for which it later obtained judgment and, at a sheriff's sale upon execution issued thereon, bought his interest in the property above mentioned and filed this bill to set aside the said conveyances from Purcell and to Purcell and wife. The case was heard upon bill, answer, replication and testimony and, the controlling facts being found in favor of *117 plaintiff, a final decree was entered in due course granting the relief prayed for; therefrom defendants brought this appeal.
On the merits the decision was clearly right and the record discloses no cause for reversal. The answer raises the question of an adequate legal remedy, but as defendants went to trial on the merits and took no steps to have that question decided in limine, as required by the Act of June 7, 1907, P. L. 440, the objection as to equity jurisdiction was waived and could not be interposed during or after trial. In such case the defendant must not only raise the question of jurisdiction but insist upon its decision before trial: Tide Water Pipe Co. v. Bell,
Furthermore, to create a resulting trust in the wife of land standing in the name of the husband, as against his creditors, requires clear and satisfactory evidence, of which this record discloses none. The mere fact that a wife by thrift and economy enables her husband to accumulate property, held in his name, vests her with no interest therein except that of a spouse. While Mrs. Purcell seems to have received approximately $2,000 from the estates of her mother and grandmother, it clearly appears that no part thereof, or any other funds of the wife, were used in the purchase of the land in question; hence, had the case been tried as one of ejectment the trial judge would necessarily have given binding instructions for plaintiff (Onorato v. Carlini,
To establish Purcell's insolvency at the time of the alleged fraudulent transfer, plaintiff was permitted to prove his declarations. There was no error in this for the declarant was a party to the suit, in possession of and claiming a joint ownership in the land at issue and the declarations were against his interest. See Frazier v. Foreman,
The decree is affirmed and appeal dismissed at the cost of appellants.