DocketNumber: Appeal, No. 202
Citation Numbers: 172 Pa. Super. 1
Judges: Arnold, Dithrich, Gunther, Hirt, Reno, Rhodes, Ross
Filed Date: 11/12/1952
Status: Precedential
Modified Date: 2/18/2022
Opinion by
Plaintiff Maude A. Dunlap and her then husband Leonard D. Dunlap lived together in the premises at 6427 Saybrook Avenue, Philadelphia, which they owned by the entireties. Following the termination of their marriage on August 17,1948, by divorce, they attempted to agree on a division of their property. Their efforts to make a property settlement were unsuccessful until February 8, 1949, when they entered into a written agreement. By the terms of the writing Leonard D. Dunlap agreed to convey his interest in the above real estate to the plaintiff, and she in turn agreed to give her “Bond and Warrant” for the payment to him of $2,000 within 10 years with interest at 4%, with the right to anticipate payments on the principal. The provisions of the written agreement as a whole indicate that it was the intention of both of the parties to
Leonard D. Dunlap died testate on February 20, 1951. By his will he disinherited his children and gave his entire estate, both personal and real, to Gertrude S. McCullough, the defendant in this proceeding; he also appointed her sole executrix of his estate. On November 28, 1951, plaintiff filed a bill of complaint in the present equity action. The bill in substance alleged that on February 6, 1949, the parties entered into a collateral oral agreement, which induced the plaintiff to execute the writing two days later, to this effect: “That if the said Leonard D. Dunlap should die first, the $2,000 mortgage . . . recited in the written agreement would be cancelled; and if the plaintiff, Maude A. Dunlap should die first . . .” it was agreed that the balance due on the mortgage would be paid from the proceeds of the sale of the property by the children of the parties. The alleged parol agreement is silent as to how it was to be enforced on either contingency. In this action plaintiff sought equitable relief in an order directing the defendant as executrix to satisfy the mortgage of record.
At the hearing in the court below, defendant’s objection to plaintiff’s offer to prove a modification of the written instrument by the above alleged oral agreement, was sustained, and the bill was dismissed. There is no merit in this appeal from that order.
The principles upon which appellant relies are no longer the law under the Modern Parole Evidence Rule
The present case is ruled by the above authorities. Fraud is not alleged, nor could it be under the circumstances. The written agreement was drawn by appellant’s attorney. There was ample time for a redraft of it to include the substance of the modified terms of the mortgage allegedly agreed to by parole on February 6, 1949, before the execution of the agreement two days later. It is significant that in the subsequent performance of the contract appellant gave a mortgage
Judgment affirmed.