Appeal, No. 35 | Pa. | Apr 16, 1906
Opinion by
But for the pendency at the time this bill was filed of the action of ejectment between these parties for the same premises, the decree below would have to be reversed, for we can concur neither in the finding of fact by the learned court that the presumption of a gift of the property by Filippo Casciola to his wife had not been overcome, nor in the conclusion that she did not hold the title as trustee for him. In that action a verdict was directed for the plaintiff, Maria Donata Casciola. A rule was awarded to show cause why a new trial should not be granted, which, pending final decree in this proceeding, has been held in abeyance by the court below.
In the action of ejectment the fundamental question involved in this proceeding was raised, or ought to have been raised, and if the appellants, who are the defendants in that action, produced the same testimony that they offered here, the jury ought to have been instructed that, if they believed it, the plaintiff could not recover, for she held title to the property, not for herself, but as trustee for her husband, and by her deed of September 17, 1898, passed a good title to the appellants. The decree of the court below, dismissing the bill, is affirmed, at appellants’ costs, but without prejudice to any of their rights in the pending action of ejectment.