DocketNumber: Appeal 363
Citation Numbers: 158 A. 647, 103 Pa. Super. 331, 1931 Pa. Super. LEXIS 69
Judges: Trexler, Keller, Linn, Gawthrop, Cunningham, Bxldbige, Drew
Filed Date: 11/18/1930
Status: Precedential
Modified Date: 10/19/2024
Argued November 18, 1930. This is an action of assumpsit to recover the withdrawal value of stock in the appellee building and loan association. Suit was brought in the names of William G. Magee and Olive R. Magee, his wife; it was instituted by the wife alone and the statement of claim is signed and sworn to by her. A few days after service of the summons and statement of claim an attorney for the husband, acting under a filed warrant of attorney, marked the suit "discontinued and ended" as to him. Appellee filed an affidavit of defense raising questions of law which were decided in its favor by the court below; from the judgment entered against the wife she has taken this appeal. *Page 333
The statement of claim made the following allegations: Forty-eight shares of stock in the appellee association had been subscribed for by the husband and wife, comprising groups of stock in three series, all of which were pledged from time to time as collateral for loans; this stock was all paid for out of the joint funds of the husband and wife, was issued to them jointly and was owned by them as tenants by entireties; sometime prior to July 20, 1926, the shares in one of the series (twenty-five shares in the sixty-eighth) became "free" stock, with a total withdrawal value of $2,138; on that date, "without the request, knowledge or consent" of the wife, the association, upon the sole request of the husband, paid this $2,138 to him alone and cancelled the stock on its books; no part of this money was received by appellant or applied in any way to her benefit. Appellant therefore claimed that the payment to her husband was in violation of her legal rights and demanded that the sum so diverted be paid to her.
The court below, in sustaining the affidavit of defense in the nature of a demurrer, held that since the stock was owned by appellant and her husband as tenants by entireties, no action could be maintained by her alone to recover the value thereof, as recovery could be had only upon the joint demand of both parties in interest. As this conclusion disposed of the essence of the claim, judgment was entered in favor of the association, without prejudice to the right of the wife to institute further proceedings if she survived her husband, unless in the meanwhile her interest in the fund should be adjusted.
We are not convinced that the association is entitled to judgment in its favor on the questions of law raised by its statutory demurrer. Under the facts pleaded by the wife, which, for the purposes of this appeal, must be assumed to be true, several matters *Page 334 of law arise: (1) whether the payment by the association of the entire fund to the husband, without the knowledge or consent of the wife, affected her right to proceed against the association for the purpose of establishing that the fund is still, in contemplation of law, owing from it as an estate by entireties of which she is one of the owners; and (2) if such payment did not discharge the association from liability, how and to what extent may she assert her rights?
The first question is ruled by Milano et ux. v. Fayette Title and Trust Company,
No authority exactly in point has been cited by counsel; nor have we been able to find a precedent in which an estate by entireties was involved. There is however authority for holding that in a joint tenancy the joint tenant must join, and be joined, in real, mixed and personal actions: Milne v. Cummings, 4 Yeates 577. This case is cited in Mobley v. Bruner,
We are, therefore, of opinion that the wife had a right to bring this action in the name of her husband as well as in her own; by virtue of the nature of the tenancy either had a right to act for both for the preservation, as against the association, of the estate and neither could deal with the estate to the prejudice of the other. It follows that the husband had no legal right to discontinue and the court below should have treated his attempt to do so as a nullity. Unless the association has a defense, on the merits, to the facts pleaded in her statement, the wife has a right to prosecute the suit to judgment. If judgment be obtained against the association, the court below will have control over the matter of its enforcement; it will be in favor of the husband and wife jointly for an estate by entireties and its execution can be controlled in accordance with the characteristics of such an estate. We may add that counsel on both sides state in their respective histories of the case that the owners of these shares were divorced subsequent to the institution of the action. This fact does not appear in the pleadings, but even if it did the questions now involved would not be thereby affected in any way. "After a divorce the estate retains the incidents which pertained to it at its inception": O'Malley v. O'Malley,
The questions of law raised by this statutory demurrer should have been decided against the defendant association, and we accordingly sustain the assignment of error to the entering of judgment in its favor.
The judgment in favor of the appellee is reversed and the record is remitted for further proceedings under the twentieth section of the Practice Act not inconsistent with this opinion.
Gasner v. Pierce , 286 Pa. 529 ( 1926 )
O'Malley v. O'Malley , 272 Pa. 528 ( 1922 )
Mobley v. Bruner , 1869 Pa. LEXIS 48 ( 1868 )
Milano v. Fayette Title & Trust Co. , 1929 Pa. Super. LEXIS 153 ( 1929 )
Madden v. Glosztonyi Savings & Trust Co. , 331 Pa. 476 ( 1938 )
Pastore v. Forte , 104 Pa. Super. 55 ( 1931 )
Sielecki v. Sielecki , 107 Pa. Super. 291 ( 1932 )
Brennen v. Commissioner , 4 T.C. 1260 ( 1945 )
Fish Et Ux. v. Kaye , 134 Pa. Super. 49 ( 1938 )
Uzarski v. Union National Bank , 152 Pa. Super. 433 ( 1943 )
Wakefield v. Wakefield , 149 Pa. Super. 9 ( 1942 )
Peterson v. McNeely , 125 Pa. Super. 55 ( 1936 )