Ferguson v. Quinn

123 Pa. 337 | Pa. | 1889

OPINION,

Me. Justice Paxson :

Hering v. Chambers, 103 Pa. 172, following in the line of Delaney v. Gault, 30 Pa. 63; Cadmus v. Jackson, 52 Pa. 295; Soullier v. Kern, 69 Pa. 16; Emrick v. Dicken, 92 Pa. 78, decided that a purchaser at sheriff’s sale under a judgment obtained on a scire facias sur municipal claim, is not bound to show that the acts of assembly, relating to such proceeding, have been strictly complied with; he is protected by the judgment.

It is providéd by the fourth section of the act of February 24, 1871, P. L. 126, relating to the registry of lots in the city of Pittsburgh, as follows: “ It shall be the duty of all owners of houses and lots or tracts of ground, to furnish forthwith descriptions of their property to the engineer, to aid him in making up his book of plans; and whensoever such descriptions shall have been furnished, and the certificate of the engineer or his assistant shall be received, no property so returned shall be subject to sale for taxes or other municipal claims thereafter to accrue as liens of record thereofi, except in the name of the owner, as returned, and after recovery by suit and service of the writ on him, as in case of a summons, scire facias, or other appropriate writ,” etc. The plain object of this act was to prevent the real estate of those citizens who had complied therewith in the matter of registry, from being swept from them by a judicial sale upon a municipal claim without notice to them and without their knowledge. If the act is no protection to a registered owner it has failed of its purpose, and might as well not have been passed by the legislature.

A somewhat similar act exists in the city of Philadelphia, and in construing it this court held in Simons v. Kern, 92 Pa. 455, that where an owner of real estate in the city of Philadelphia registers his deed therefor in compliance with the requirements of the act of March 29, 1867, a sheriff’s sale of said real estate passes no title, where it was made under an execution in a suit in which the original writ was not served as directed by said act. And in Emrick v. Dicken, a case from Allegheny county, we said that had not the owner neglected to register as required by the act (act for city of Allegheny) “ it would not have been possible to sell it (the land) 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.”

The failure to serve the writ according to the act of assembly upon a registered owner, under the above recited and similar acts of assembly, is something more than an irregularity which may be cured by the judgment. Where the owner has been properly served, 1 apprehend mere irregularities would be cured, and a purchaser at sheriff’s sale would be protected by the judgment, as in Delany v. Gault and the other cases cited. But without such service the court acquires no jurisdiction ; the judgment entered on such suit is absolutely void, and the act of assembly prohibits a sale of the premises upon any execution issued thereon.

In the case in hand the plaintiff’s deed was registered in compliance with the act of assembly. Judgment was taken against him on the scire facias upon return of two “nihils.” Neither the scire facias nor the alias was served upon the plaintiff, nor had he any notice or knowledge thereof, although for many years a business man residing in the ward adjoining the one in which the property in question is located. To the alias the sheriff returned: “ Property posted on former writ and nihil as to the defendant.” Upon this return judgment was taken for the amount of the municipal claim ($5) and the property of the plaintiff was sold to the defendant for $155. Was this service a compliance with the act of assembly ? If it was, we are inclined to think that, under the authorities, the other irregularities would be cured and the purchaser protected by the judgment.

There does not appear to have been any attempt to make personal service. The proceeding was in rem and the first writ was returned “posted and nihil as to the defendant.” This return goes upon the theory that an effort had been made to find tbe defendant and had failed. The alias then issued and it was the duty of the sheriff again to make personal service, if within his power, and, if unable to do so, to post the writ upon the premises the second time, thus giving the defendant named therein another chance to learn of the proceeding against his property. The sheriff appears to have done nothing whatever upon the second writ. There is nothing to indicate that he had so much as taken it out of the pigeon-holes in his office, except to return it, “ property posted on former writ and nihil as to defendant.” The property should have been posted on the alias as well as upon the original, and the writ should have been so returned. As it stands there was no legal service. It was, therefore, clear error to give a binding instruction to find for the defendant. It should have been given in favor of the plaintiff.

There is no force in the position that the plaintiff should have redeemed within one year under the eighth section of the act of 1871. It is at least doubtful whether such provision applies to any except tax sales. And if it does it could not affect the case in hand, for the reason that this was a void sale upon a void judgment. It conferred no rights upon the purchaser, nor did it deprive the owner of any.

The judgment is reversed, and a venire facias de novo awarded.