Bryan's Appeal

| Pa. | Nov 20, 1882

Mr. Justice Paxson

delivered the opinion of the court, November 20th 1882.

We are of opinion that the learned judge of the Orphans’ Court was correct in holding that the charge upon the real estate in controversy for the support of Frederick Bentz was discharged by the judicial sale. It was in the nature of a fixed lion, and may be said to come within the exceptions pointed out in Hiester v. Green, 12 Wright 96, and as such binding between parties and privies. The property, however, was sold upon a municipal claim filed by the city of Pittsburgh for grading and paving a street abutting thereon. The Act of May 16th 1857, section 4, P. L. 542, provides that “ all taxes, rates and levies which may hereafter be lawfully imposed or assessed by authority of said city (Pittsburgh) on any real estate therein, shall be and they are hereby declared to be a lien thereon, . . . . , and that the said lien shall have priority to, and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility, which the said real estate may-become charged with, or liable to, from and after the passing of this Act.” The proceeding under this Act is in rem, and the whole estate in the land is charged: Salter v. Peed, 3 Harris 260. The reason for it is that the improvements are for the benefit of the property. Section 16 of the Act of 6th January 1864, P. L. 1135, under which Bates alley was graded and paved, provides that the term “ owner” as used in said Act shall be construed to mean all individuals having any title or interest in the properties assessed. It was held in Perry v. Brinton, 1 Harris 202, that a sale on a municipal lien did not divest the lien of a prior mortgage. That, however, was because mortgages in the city of Philadelphia were protected by an Act of Assembly. It has never been held that charges upon or estates in land created by the owner thereof can avail as against the taxing power of the Commonwealth. Municipal liens for grading and paving streets are a species of taxation and come within the rule.’ Such liens bind the entire estate in the land, except where an Act of Assembly directs otherwise. If it were not so, the owner of real estate could wholly defeat the taxing power by charging it with the payment of a sum of money equal to its full value.

That the sheriff’s sale in this instance discharged the premises in question from the charge in Mrs. Garber’s will in favor of Frederick Bentz is settled by Allegheny City’s Appeal, 5 Wright 60, and Pittsburgh’s Appeal, 20 P. F. S. 142. It is equally clear that under Delaney v. Gault, 6 Casey 63, and Emerich v. Dicken, the irregularities complained of were cured by the judgment and do not affect the purchaser at a judicial sale. Wistar v. City of Philadelphia, 5 Norris 215, is not in conflict with this view, for the reason that there the defence was made by the owner prior to any sheriff’s sale of the premises.

Tip to this point we are in harmony with the rulings of the court below. The learned judge held, however, that the appellant was affected with notice of the alleged fraud of Mary E. Bostwick, and her husband. It is found by the court, and for the purposes of this case we assume the fact to be, that they procured the sheriff’s sale of the premises for the purpose of getting it back discharged from the provision in Mrs. Carter’s will, in favor of Frederick Bentz. The appellant is a purchaserfor value, and before his title can be affected by the fraud of the Bostwicks, it must appear that he either was a party to the fraud or had knowledge of it. There is no pretence that he was a party or had actual knowledge of any fraud. But the learned judge held that he had constructive notice, as it appeared of record in his line of title. This was error. The appellant’s title was acquired through a judicial sale, upon a valid lien. It is true the charge in favor of Frederick Bentz appeared in the line of title, but the fraud by which the Bostwicks procured the sale did not appear. The fact that they resided upon the premises had no especial significance. If sufficient to put appellant upon inquiry, he can only bo charged with what he would probably have ascertained if he had made such inquiry. It is too much to assume that either Bostwick or his wife would have informed him of the fraud. lie would only have learned what the record discloses, that the property had been sold at a judicial sale upon an adverse proceeding. Nothing appeared upon record to indicate that the Bostwicks were practically both vendors and vendees. The tendency of judicial decision is to protect good faith purchasers at judicial sales, and where participation in or knowledge of actual fraud Is not alleged, we are not disposed to extend the doctrine of constructive notice to unreasonable lengths. Where the record discloses such facts as fairly put a purchaser upon inquiry, the rule is to hold him to notice of what such inquiry would reasonably have developed. To extend it further is not warranted by the authorities, and might work serious wrong in many instances.

The decree is reversed and the petition dismissed at the costs of the appellee.