Stop 35, Inc. v. Haines

543 A.2d 1133, 374 Pa. Super. 604, 1988 Pa. Super. LEXIS 1368
CourtSupreme Court of Pennsylvania
DecidedMay 13, 1988
Docket162
StatusPublished
Cited by21 cases

This text of 543 A.2d 1133 (Stop 35, Inc. v. Haines) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stop 35, Inc. v. Haines, 543 A.2d 1133, 374 Pa. Super. 604, 1988 Pa. Super. LEXIS 1368 (Pa. 1988).

Opinions

WIEAND, Judge:

In response to a petition in aid of execution the trial court entered an order directing the former wife of a judgment debtor to pay the judgment from proceeds derived from the sale of real estate owned by the wife. The wife appealed. We reverse.

On August 20, 1982, Stop 35, Inc. confessed judgment on a note which had been executed by David Haines in the principal amount of $2,249.93. On that date, David Haines and his wife, Della, were owners by the entireties of real estate situated in Fayette Township, Juniata County. Haines and his wife, however, had separated in January, 1982 and by August, 1982, a divorce action was pending in the Court of Common Pleas of Juniata County. Because of the separation and impending divorce, Haines and his wife, on May 6, 1982, had executed a homemade agreement1 which provided, inter alia, that

[606]*606“When ever property is sold it is agreed that after the house is paid off balance will be divided equally.”

Whether the agreement regarding this real estate was subsequently re-negotiated and changed is not clear, although there is testimony to that effect which the trial court appears to have accepted as credible. In any event, by deed dated December 26, 1984 and recorded on February 14, 1985, the jointly owned real estate was conveyed to Della Haines alone. The consideration recited in the deed was one ($1.00) dollar. A divorce decree was entered on the following day, February 15, 1985. On March 7, 1985, Della Haines, unmarried, conveyed the real estate for a consideration of $37,500.00 to the parents of her former husband. At settlement, the sum of $2,254.93 (the amount of Stop 35’s judgment) was withheld and placed in escrow pending a determination of Stop 35’s right to recover the judgment which it held against David Haines from the real estate sold by his former wife.

On March 8, 1985, Stop 35 filed a petition in aid of execution, and the trial court issued a rule against Della Haines, David Haines, and the escrow holder to show cause why Stop 35’s judgment should not be paid from the moneys held in escrow.2 The petition contains averments (1)

May 6, 1982

1. Legal custody of both children will go to my wife.

2. Visitation rights are unlimited-they can be seen when ever husband is in off the road and for as long as he is in.

3. Both parties agree that when filing income tax they will each use one child as a deduction.

4. All contents of the house will stay with my wife.

5. When ever property is sold it is agreed that after the house is paid off balance will be divided equally.

6. Whenever tractor-trailer is sold loan for the truck will be paid off releasing the house as collateral.

7. Husband will help with any major repairs of the house-example-furnace, roof etc.

8. Child support—100.00 per week.

9. A loan will be taken out to pay off all standing bills and it is agreed that both parties will pay an equal share until the loan is paid off.

/s/ David Haines

[607]*607that the judgment constituted a lien against David Haines’s interest in the real estate which was not discharged by the conveyance to his wife; and (2) that the deed to Della Haines was fraudulent because it was without adequate consideration. Following an evidentiary hearing, at which David Haines did not appear but which was defended by Della Haines, the trial court directed the escrow holder to deliver the moneys being held to Stop 35 in satisfaction of the judgment which it held against David Haines.

Stop 35’s judgment against David Haines did not constitute a lien against the real estate which he and his wife owned as tenants by the entireties. A husband and wife do not own separate interests in entireties property which can be reached by their individual creditors. Kauffman v. Stenger, 151 Pa.Super. 313, 314, 30 A.2d 239, 240 (1943). See also: Patwardhan v. Brabant, 294 Pa.Super. 129, 439 A.2d 784 (1982). “Because a tenancy by the entireties is grounded in the unity of the marital relationship, it can be severed only in certain limited circumstances.” Clingerman v. Sadowski, 513 Pa. 179, 183-184, 519 A.2d 378, 381 (1986). See also: 18 P.L.E. Husband and Wife § 12. In.addition to death of one of the co-tenants, divorce, or a joint conveyance, the parties can sever the tenancy by the entireties by agreement, express or implied. In the instant case, the trial court held that the entireties estate had been severed on May 6, 1982, when the parties agreed that if the real estate were sold, the net proceeds from the sale would be divided equally. Our review of the law persuades us that the trial court’s conclusion was erroneous.

Initially, it may be observed that the facts of the instant case do not lie within the holdings of those decisions which [608]*608have determined that a tenancy by the entireties may be severed by implied agreement of the parties. There was not in this case a misappropriation of entireties property by one spouse and a request for partition by the other spouse. See, e.g.: Clingerman v. Sadowski, supra; In re Brose’s Estate, 416 Pa. 386, 206 A.2d 301 (1965); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934). With respect to express agreements to sever a tenancy by the entireties, the Supreme Court said, in In re Prichard, 359 Pa. 315, 59 A.2d 101 (1948), the following:

A tenancy by the entireties may be terminated by agreement of the parties. In Berhalter v. Berhalter, 315 Pa. 225, 228, 173 A. 172, 173, it was said: “It has long been held that deeds of grant will operate to extinguish the right of survivorship and destroy a joint tenancy. Such a result is predicated on an agreement, and an estate by entirety with the incidents of survivorship may always be destroyed by agreement of the parties.”

Id., 359 Pa. at 318, 59 A.2d at 102.

In Kern v. Finnegan, 192 Pa.Super. 611, 162 A.2d 93 (1960), this Court considered an agreement between a husband and wife which purported to sever a tenancy by the entireties. The facts were as follows:

On March 18, 1957, plaintiff Walter H. Kern, then 78 years of age, together with his wife who was afflicted with cancer, entered into an Agreement which provided in paragraph 2 thereof:
“Premises 3045 North Lawrence Street, Philadelphia, Pennsylvania, from this day henceforth, shall no longer be held by Walter H. Kern and Florence G. Kern, his wife, as tenants by the entirety, but rather each shall own an undivided one-half interest as tenants in common, without the right of survivorship, of the real estate in question to the same force and legal effect as though this had been done by Deed duly executed by the parties and recorded.”

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Stop 35, Inc. v. Haines
543 A.2d 1133 (Supreme Court of Pennsylvania, 1988)

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Bluebook (online)
543 A.2d 1133, 374 Pa. Super. 604, 1988 Pa. Super. LEXIS 1368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stop-35-inc-v-haines-pa-1988.