22 Pa. Commw. 422 | Pa. Commw. Ct. | 1975
Lead Opinion
Opinion by
This is an appeal from the final judgment of the Court of Common Pleas of Delaware County in an action brought by C. Everett, Inc. (Everett) the plaintiff below, to quiet title to property acquired at a tax sale.
It is clear, of course, that “notice provisions of the tax sale statute must be strictly complied with in order to guard against the deprivation of property without due process of the law.” Chester County Tax Claim Bureau Appeal, 208 Pa. Superior Ct. 384, 387, 222 A.2d 602, 604 (1966); accord, Tax Claim Bureau of Montgomery County v. Wheatcroft, 2 Pa. Commonwealth Ct. 408, 412, 278 A.2d 172, 175 (1971). The applicable notice provisions are found in Section 7 of the Act of May 29, 1931, P. L. 280, as amended, 72 P. S. §5971 (g). These require that the County Treasurer shall advertise the sale in two newspapers of general circulation, such advertisement to include among other things “[a] list of the seated lands affected and their location, and the owner or reputed owner of each.” (Emphasis added.) In addition to advertisement the statute provides that the County Treasurer shall serve written notice upon the owner of such land and where such notice cannot be so served by mail it shall be served by posting the same in the courthouse and at a conspicuous place on the premises.
All reasonable deductions from the evidence presented to Judge Orlowsky would indicate that the advertised notice, service by mail, and posting of the premises identified the owner as: “Henry Whitley, Jr., et ux.”
This Court has ruled that a single notice served upon a husband and wife owning property by the entireties sufficiently identifies the owner when addressed in the names of both husband and wife, as “John W. and Jean G. Schmid.” Wheatcroft v. Schmid, supra. By the same token we have ruled that such notice does not sufficiently identify the owner of property held by the entireties when addressed only in the name of the husband, as “Harry M. Tillman.” Price-Jeffries Co., Inc. v. Tillman, 11 Pa. Commonwealth Ct. 153, 312 A.2d 494 (1973). “Et ux,” as used in this case after the husband’s name, represents obviously an abbreviation for “et uxor” which means “and wife,” and the term is commonly used in abstracts and indexes to indicate that a wife has joined with her husband in conveyances. See Black’s Law Dictionary, 653 (rev. 4th ed. 1968). While, however, the use of such a term may capture the attention of the legal community and indicate that a wife is a party to a transaction involving the conveyance of property, we do not believe that its use meets the notice of requirements of due process which are designed to protect the interests not only of the parties but, of the public at large. When an individual’s property rights are at stake, due process requires that he or she be identified with clarity and without disguise so that those rights may be asserted and the owners may fully protect his or her interest in the property concerned.
The plaintiff argues here that, before the tax sale can be invalidated, it must be shown not only that the notice was improper under the statute but also that the owner was in fact without knowledge of the sale before it took place. Everett finds support for this proposition in certain lower court decisions, but a well considered review of authority suggests that the proposition as Everett states it is in fact misstated. Our reading of authority
Everett also argues that, in any event, the defendants lack the power to assert defenses to the tax sale “which are personal to the Whitleys.” The defense of inadequate notice, however, is not only available to the Whitleys but also to members of the public who may have suffered because of the insufficiency of the public notice given, and not only does the law favor a clear chain of title but such clarity is obscured where the public is not properly informed of the ownership of property pending a tax sale. Here, moreover, the defendants succeeded to an interest in the subject property and they certainly stand in a position to assert errors in a proceeding which clouds the title to the interest which they acquired.
The tax sale must also fail because all reasonable deductions from the evidence indicate that the County Treasurer failed to post notice of impending sale upon the premises concerned. It is presumed, of course, that the property was properly posted absent evidence indicating the contrary. Wheatcroft v. Schmid, supra. The only evidence produced at the trial in this matter, however, was a slip of paper containing a list of numerous properties scheduled for posting, the subject property being among those so listed with testimony indicating that the list was handed to an agent of the Treasurer’s Office so that he would post all of the properties concerned. The testimony of another representative of the
Because of the deficiency in the various notices given by the County Treasurer, therefore, we believe that the court below properly invalidated the Treasurer’s tax sale and the subsequent deed which conveyed the property to Everett, the plaintiff herein. We find it unnecessary, therefore, to reach the alternate ground upon which the lower court also found the tax sale invalid.
Inasmuch as the tax sale, which purported to transfer title of the property to the plaintiff Everett was invalid, the title which Everett thought it had thereby acquired was also invalid. The title acquired by the defendants in the chain of title resulting from the mortgage foreclosure proceeding and subsequent sheriff’s sale, therefore, is superior.
The final judgment and order of the court below is affirmed.
. Posting on the premises was required in this case because the letter sent to Henry Whitley, Jr., et ux was returned by the postal authorities as undeliverable.
Dissenting Opinion
Dissenting Opinion by
I disagree with the majority opinion in its conclusion that notice of tax sale directed to “Henry Whitley, Jr., et ux” is per se violative of the due process rights of Claria Whitley, his wife and tenant by the entireties, of the property in question. Whether “et ux” is a term of art familiar only to a limited segment of our population is not, in itself, decisive, in my opinion, in structuring a due process notice right with respect to impending governmental action.