26 A.2d 728 | Pa. | 1942
This is an appeal from the order of the court below dismissing exceptions of H. J. McCully, a lien creditor, to sheriff's special return on an execution. The judgment on which the execution was issued was secured by Sci. Fa. on a foreclosure of a mortgage given by J. C. Flanagan et ux. to the Colonial Trust Company. At the execution a list of liens was filed, wherein the judgment on the Sci. Fa. was shown to be a first lien representing a liquidation of the mortgage debt. The exceptant below, H. J. McCully, claims to be a creditor with a lien prior to the lien of the mortgage.
The facts giving rise to this litigation are as follows: On August 20, 1926, Joseph M. Harvey conveyed the second described property in the writ to J. C. Flanagan and Florence Mae Flanagan, his wife. On April 13, 1927, H. J. McCully filed a bill in equity against Flanagan and wife for a decree as trustees ex maleficio of certain properties, for the conveyance thereof, and an accounting of all monies received therefrom. After trial the following decree nisi was entered on January 3, 1929: "That upon this decree becoming final the defendant, J. C. Flanagan, shall pay or cause to be paid to H. J. McCulley, the plaintiff, the sum of $1,551.44, with interest from December *558
31, 1928, being the aggregate of the fraudulent and excess amounts found to be due by him to the said plaintiff, as they are determined in the foregoing findings of fact and set forth in the conclusions of law." Later exceptions were filed to this decree and then were dismissed. On May 12, 1930, Flanagan and wife gave to the Colonial Trust Company a mortgage covering both properties described in the writ upon which the sheriff's sale was had. In the above equity case of McCully against Flanagan appeals were taken to the Superior Court by both McCully and Flanagan. See
On June 16, 1932, Flanagan and wife executed a deed for the mortgaged premises to a straw man who on the same day executed a deed, without valuable consideration, for the premises, to Florence Mae Flanagan, wife of J. C. Flanagan. On January 7, 1936, McCully caused a writ of Sci. Fa. to issue against J. C. Flanagan, with notice to Florence Mae Flanagan, on the judgment he had secured against Flanagan in the equity proceedings in 1927. On April 15, 1938, Mrs. Flanagan died, leaving her husband to survive her. On April 25, 1938, H. J. McCully caused judgment to be entered against J. C. Flanagan, the surviving husband, on the Sci. Fa. proceedings, in the sum of $14,873.59. On April 26, 1938, J. C. Flanagan died. *559
On February 13, 1941, a writ of Lev. Fa. was issued and foreclosure proceedings was brought against Charles M. Flanagan, son of J. C. Flanagan and Florence Mae Flanagan, as owner of the mortgaged premises. In these proceedings the mortgaged premises were sold to the Colonial Trust Company, the plaintiff in the writ, for the sum of $17,000.00. On May 24, 1941, the sheriff made a special return and took the purchaser's receipt for $16,547.89, alleging that the purchaser's mortgage was the first lien on the property. On June 3, 1941, H. H. McCully filed exceptions to the special return of the sheriff on the ground that the mortgage was not the first lien on the second described property sold, but was actually subsequent in lien to the judgment of H. J. McCully against J. C. Flanagan, "which began with decree nisi and money judgment on January 3, 1929, in the sum of $1,551.44."
The writ of Sci. Fa. to revive the lien of January 7, 1936, purports to revive a lien of January 8, 1931, the date of the final decree entered by the court below, pursuant to the decision of the Superior Court (supra). Appellant contends that the lien of the larger money judgment against the defendant in the final decree in the court below "relates back to and runs from the date of the decree nisi" of January 3, 1929.
The question before us is ruled by Eaton's Appeal,
The order is affirmed.