280 Pa. 508 | Pa. | 1924
Opinion by
Oh consideration of a case stated, the court below entered judgment for plaintiffs and defendant has appealed.
In 1923, plaintiffs agreed to sell the surface of property at 752 Hazle Avenue, in Hanover Township, Luzerne County, to defendant for $4,250; but when the deed was tendered, defendant refused to accept it on the ground that plaintiffs were not in a position to “convey to him a good and marketable title in fee simple.”
The point on which this case turns, as to the power of plaintiffs to convey “a good and marketable title,” arose thus: Emma G. Marcy died in 1915, seized in fee of the land here involved; she devised this property “To C. Raymond Marcy [also called Raymond C. Marcy]...... he to have use of [it] as long as he lives, afterward to be divided equally among his children.” Subsequently, testatrix executed a codicil in which she stated: “To my son, Raymond C. Marcy, to whom I have bequeathed the use of the property at No. 752 Hazle Ave.,......I would instead give the privilege of selling that property and in
In 1920, C. Raymond Marcy, “for the consideration of $2,300, granted and conveyed nnto Jared E. Marcy, his father, in fee simple, the premises hereinbefore described.” The grantee died intestate in 1923, leaving as his heirs at law the plaintiffs named in the case stated, who claimed that their decedent’s grantor possessed, under the will of Emma C. Marcy, deceased, “full power to sell and convey in fee simple” the premises in question, and that he had exercised that power in the deed to their intestate, thereby giving to the latter a good and marketable title which they had inherited and could convey to defendant.
On the other hand, defendant claimed that C. Raymond Marcy had but a life interest and, since he has eight children living (only one of whom is of full age), he could not convey a good and marketable title in fee simple; defendant contended that such a title could be given to him only through “deed or deeds executed by the plaintiffs” and “by the children of the said Raymond C. Marcy......[or their guardians], made in pursuance of a proper order of court.”
The last paragraph of the case stated is to this effect: “If the court shall be of opinion that plaintiffs’ deed ......will convey to defendant a good and marketable title in simple fee......then judgment shall be entered in favor of plaintiffs........otherwise......in favor of defendant.”
In Schuldt v. Reading Trust Co., 270 Pa. 360, 366, we said: “A court should never undertake to declare title to real estate good and marketable unless all the parties in interest are present on the record,” adding that a “case stated should set forth......all conceivable relevant facts.” We had previously said, in the same opinion, “whatever is not distinctly and expressly agreed upon and set forth as admitted must be taken not to exist.”
It is to be observed that the present case stated does not say in plain terms that C. Raymond Marcy made an actual sale of the Hazle Avenue property to his father, Jared E. Marcy, or that the latter paid the former the consideration mentioned in the deed of transfer; nor is there any statement that this transfer was in fact a bona ñde sale in the exercise of a power, claimed to be possessed by C. Raymond Marcy under the above-quoted codicil, to sell and convey the property for the purpose of investing in another home. While we do not assume the existence of any facts not set forth in the case stated, yet it is apparent that, were we to decide the question of title on the record before us, the whole purpose of the testatrix to give her son a home for life in the Hazle Avenue house, or in other substituted property, with remainder to his children, could be entirely defeated by a pretended sale from the son to a straw man and a conveyance by the latter to others, accompanied by a judicial decision on a case stated, between the parties last named, wherein no facts are set forth on the subject of the bona fides of the transfer from the life tenant and without notice to the remaindermen. Such a case stated is plainly imperfect and should not be judicially acted on.
It is to be observed that the will clearly vests a life interest in C. Raymond Marcy, with remainder in his
The judgment is reversed without prejudice to the right of plaintiffs to apply to the court below to amend the present case stated, or to raise in another case stated, or in any other appropriate manner, the question of their right to convey a marketable title to the property here involved.