Emrick v. Dicken, 92 Pa. 78

Emrick v. Dicken

92 Pa. 78 | Pa. | 1880

Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

A municipal lien for street improvements is a proceeding in rem. It is filed against the abutting or adjacent property, and involves no personal liability on the part of the owner. In many instances it is difficult to ascertain the name of the real owner. This is especially true as regards unimproved property. Deeds *81are often left unrecorded, and the record title is not always the true title. Hence it is that such liens are allowed to he filed against the reputed owner, or against an unknown owner. In such cases, however, the law has provided reasonable regulations to warn the real owner before his property can be sold under the lien. When the scire facias goes out it is required to be posted upon the premises, and notice given by publication before a judgment can be taken. With all these safeguards it sometimes happens that a property is sold and the title passed to the sheriff’s vendee without the knowledge of the owner. Yet, even here the act relative to Allegheny county gives him one year in which to redeem. See Act of April 1st 1870, Pamph. L. 751.

It was held in Delaney v. Gault, 6 Casey 63, that a sheriff’s sale under a judgment obtained upon a municipal claim, passes the title to the purchaser whether the real owner be named in the proceedings or not; and that the purchaser in such case is not bound to show that the Acts of Assembly have been strictly complied with; he is protected by the judgment. It is true, in Wister v. The City of Philadelphia, 5 Norris 215, we allowed the owner to defend against the city upon the ground of a non-compliance with the Acts of Assembly in regard to posting and advertising, but that was an entirely different question from the ease of a sheriff’s vendee who has paid his money upon the faith of a judicial sale; and the distinction was pointedly made in the case referred to.

Here the claim was filed against “unknown owner;” a scire facias issued, judgment thereon, and a sale of the premises by the sheriff to the plaintiff below. It appears by the special verdict, and the facts agreed upon, that George Emrick was in fact the owner of the lot and resided thereon, but had neglected to have his ownership registered .in the office of the city engineer as required by the Act of Assembly of 2d April 1869, Pamph. L. 644; that the plot furnished to the viewers to assess damages and returned with the report had no owner marked to the lot in question, but that the formal report of the viewers made the assessment against this lot in the name of George Emrick as owner.

We need not discuss the minor question of the irregularity of the proceedings in regard to posting and advertising. That is disposed of by Delaney v. Gault, supra. The point for our consideration is, whether, as against a purchaser at sheriff’s sale it may be shown that the name of the real owner was known to the municipal authorities, and ought to have been inserted in the lien; and that the omission to do so was such an irregularity as avoided the sale. We must be careful, in our desire to remedy a single case of apparent hardship, we do not unsettle titles in hundreds of similar cases. There have been many sales upon claims filed against unknown owners, the validity of which have never been questioned. Were we now to hold that an inquiry could be gone *82into to show that the name of the owner was or might have been known when the claim was filed, it is difficult to see why all titles heretofore made upon such claims may not be attacked. The Act of 1870 supra, was careful to avoid this difficulty, and provided by the 14th section, “ That a sale of any property by the sheriff, upon a writ of levari facias, upon any lien authorized by this act, whether the real owner is named or not, shall be deemed a proceeding in rem, and shall vest a good title in the purchaser to the property thus purchased.” And it was provided by the preceding section (13th) that, “ No mistake * * * in the name of an owner * * * shall vitiate the lien, &c.” The plaintiff must be presumed to have purchased at the sheriff’s sale upon the faith of this Act of Assembly. By its express terms any error or irregularity in regard to the name of the owner is cured by the sale. To hold otherwise would make the act a snare instead of a protection.

If there is any hardship in this case it is due to a considerable extent to the negligence of the owner. He appears to have made no attempt at any time to pay his assessment. It is possible he had no actual knowledge of it, but it is not probable. He knew of the opening of the street; is chargeable with knowledge that abutting and adjacent property was liable to assessment; the scire facias was posted upon his premises and duly advertised. And had he not neglected his duty to have his property registered as provided by the Act of April 2d 1869, it would not have been possible to sell it upon this claim, except in his own name as owner, and after recovery by such a service of the writ upon him as in case of a summons.

Judgment affirmed.

Justices Gordon and Trunkey, dissented.