
    Mannoni, Appellant, v. Mannoni.
    
      Argued April 23, 1941.
    Before Keller, P. J., Cunningham, Baldrige, Stadteeld, Rhodes, Hirt and Kenworthey, JJ.
    
      B. A. SGiotto, for appellant.
    
      FranJc P. Barnhart, of Barnhart & Adams, for ap-pellee.
    June 30, 1941:
   Per Curiam,

On June 29, 1936, Prank Mannoni, representing himself to be a widower, obtained from the Clerk of the Circuit Court for Allegany County, Maryland, a license authorizing his marriage to Maggie Genovese, a widow; and on the same day they were married at Cumberland, Maryland, by A. K. Flora, a minister of tbe Church of God, and return of the marriage was duly made to, and entered on the records of, that Court. After the marriage the parties lived together and cohabited as husband and wife.

The said Frank Mannoni was the holder of a purchase money mortgage for $1650, given him by Lizzie Lobue, upon certain real estate in the Eleventh Ward of the City of Johnstown, Pennsylvania, duly recorded March 11, 1935 in the office of the Recorder of Deeds of Cambria County in Mortgage Book 164, p. 216.

On September 12, 1936, Frank Mannoni executed an assignment of this mortgage, under seal, to his wife, Maggie Mannoni, and delivered it to her, together with the mortgage. The assignment was duly recorded on August 23, 1937 in the office of the Recorder of Deeds in Mortgage Book 186, p. 443. This constituted a valid irrevocable gift of the mortgage to her: Henderson v. Hughes, 320 Pa. 124, 182 A. 392; Pyewell's Estate, 334 Pa. 154, 5 A. 2d 123; Ries v. Ries’ Est., 322 Pa. 211, 185 A. 288.

Some time in September 1939 Frank Mannoni brought a proceeding in the Court of Common Pleas of Cambria County, Pennsylvania, to No. 300 December Term 1939, for the annulment of said marriage on the ground that when it was solemnized he had a wife living in Italy, from whom he had not been divorced. Prior to the Divorce Code of May 2, 1929, P. L. 1237, nobody could bring suit for the annulment of a marriage on that ground except the ‘innocent or injured party.’ See Report of Commissioners on Drafting Code, p. 12; Act of April 14,1859, P. L. 647, and its amendment of March 29, 1927, P. L. 71. He was not the innocent or injured party. On October 14, 1939, a decree was entered annulling the marriage; and on October 30, 1939 he filed his petition in this proceeding asking for the cancellation of the assignment of the mortgage, which the court below on October 14, 1940, after answer filed by tbe respondent and hearing in open court, dismissed at tbe petitioner’s costs. He appealed to this court. Tbe decree will be affirmed.

A valid executed gift by a husband to bis wife will not be disturbed or rendered invalid by tbe subsequent annulment of tbe marriage, obtained by bim on tbe ground that be bad a lawful wife living, from whom be bad not been divorced, when tbe marriage ceremony was performed. Appellant was fully aware of bis inability to contract a valid marriage as long as bis legal wife was living in Italy and be was not divorced from ber. He procured a marriage license for his wedding to respondent by swearing falsely as to bis being a widower. These unlawful acts on bis part leave bim in no position to ask a court to set aside a gift made by bim to one whom be bad nevertheless married and bad lived with as ber husband: Reynolds v. Boland, 202 Pa. 642, 648, 52 A. 19; Orne v. Kittanning Coal Co., 114 Pa. 172, 182, 6 A. 358; Greenfield’s Est., 14 Pa. 489. No rights of appellant’s creditors were involved: Buckwalter Stove Co. v. Edmonds, 283 Pa. 236, 239, 128 A. 835. Tbe respondent bad been guilty of no fraud or false swearing.

His efforts to prove on tbe bearing — by way of afterthought, for his petition as filed contained no such averment — that tbe mortgage bad been assigned to respondent on tbe condition that she would have ber separate real estate conveyed to tbe two of them as tenants by entireties, was not supported by any substantial, credible evidence; nor was any proof produced by him sufficient to rebut tbe presumption that tbe assignment to ber was a gift: Loeffler’s Est., 277 Pa. 317, 324, 121 A. 186; Buckley v. Buckley, 277 Pa. 215, 217, 120 A. 926.

Decree affirmed at tbe costs of appellant.  