Fryer v. Magill, Appeal, No. 100

Appeal, No. 100 | Pa. | Oct 1, 1894

Opinion by

Me. Chief Justice Stebeetí,

After reciting the facts agreed upon, the case stated provides as follows : “ If on the above facts the court shall be of opinion that after said registry no sale for taxes could lawfully.be had-of the interest of the said plaintiffs in said property, or of either of them, without having their names, or either of their names suggested as the actual owners, and until after service of the writ on them and recovery by suit against them, made as in the case of summons, then judgment to be entered for the plaintiff, Charles E. Claghorn, for one undivided third part of said premises, and judgment to be entered for the plaintiff, Anna M. Fryer, individually and as trustee under the will of Joseph C. Fryer, deceased, for one other undivided third part of said premises, otherwise judgment to be entered for the defendant,” etc. Judgment was accordingly entered on the case stated'.in favor of each of said plaintiffs for one undivided third part of the premises in controversy; and of this the defendant complains.

It was claimed by plaintiffs that the “ registry ” of their deed referred to was defective in that it did not set forth the individual names of the three vendees given in - said deed, and that this negligent omission of the chief engineer and surveyor of the city was perpetuated by the city solicitor when suit was brought to enforce payment of delinquent taxes.

On July 24, 1858, Henry Holthausen, Charles E. Claghorn and Joseph C. Fryer purchased, as tenants in common in equal shares, the land in question, and their deed therefor was duly recorded September 23d following. As required by the registry act, they presented the deed to the proper officer for registry, and he stamped thereon that the same was duly -registered January 7, 1871. Having thus performed their duty, the said owners had a right to rely upon the guarantee of the registry act that no proceeding should be taken, against their property except by process issued in their names as registered owners, and that proper effort would be made to serve such process on them. The act declares: “ If said duty .... shall have been . discharged by the party who shall have acquired title, in whatsoever manner, before the tax accrued as a lien of record, for which the same shall have been sold, the purchaser at the tax sale shall not acquire the title of such person who shall have performed said duty, or of his heirs and assigns, unless the sale shall have been made in the name of such owner, after service of process upon him, as in the ease of suit by summons.”

As has been suggested, the property was carelessly and negligently registered, not in the name of three owners, as it should have been, but in the name, “Henry Holthausen, et al.” The abbreviation, “ et al.” was thus substituted for the names of Charles E. Claghorn and Joseph C. Fryer, two of the owners. This was never corrected, nor does it appear that any effort was made to correct it. On the contrary, when the citj' filed its claim, the patent blunder of the registry bureau was repeated by the law department, notwithstanding the registry disclosed the date of the deed, etc., and the words “et al.” clearly indicated that Henry Holthausen was not the only owner. The result was that plaintiffs were deprived of that protection which it was the chief object of the registry act to ensure. The court was clearly right in virtually holding that the proceedings, from the defective registration down to the sale of the property both inclusive, were a series of blunders, the .consequences of which could not be visited on the plaintiffs. If defendant’s contention should prevail, the registry act, instead of being a protection to law-observing property owners, would be a snare into which any one might fall.

Throughout the proceedings, by which it is claimed plaintiff’s title was divested, the ownership was treated as being in a single person, Henry Holthausen. Efforts to find and serve him were of course fruitless because of his disappearance ; but it does not appear that any effort was put forth to ascertain who were represented by the words “ et al.” on the registry. Reference to the record of the deed would have readily furnished that information. There is nothing in the record that would justify a reversal of the judgment.

Judgment affirmed..