230 Pa. 192 | Pa. | 1911
Opinion by
The controlling question is, Did a judicial sale in the city of Pittsburg in the year 1888 divest a tax lien when the proceeds of the sale were not sufficient to pay the lien in full?
The city of Pittsburg levied and assessed taxes for 1887 and 1888 on a piece of ground owned by one Dunker. Thereafter judgment d. s. b. was entered by one Porte against Dunker, and on April 2, 1888 under an execution on this judgment the property covered by the tax assessments was sold to one Lunn. The proceeds of this sale being insufficient to pay the taxes, on September 24, 1889, a tax lien was entered against Dunker, and thereunder on March 6, 1891, the property in question was sold to one Chantler.
The plaintiff claimed title through Lunn and the defendant through Chantler. The action was in ejectment and the jury rendered a verdict for the plaintiff, but the court below entered judgment for the defendant n. o. v. on the theory that the judicial sale to Lunn did not divest the tax lien and the subsequent sale under that lien passed title to Chantler.
The lien was filed under the Act of March 22, 1877, P, L, 16, providing for the levy, collection and disburse
Statutes providing that taxes shall be a lien which shall be fully paid and satisfied before other liens, have been repeatedly construed as not preserving the lien of such taxes from divestiture by judicial sale: Allegheny City’s App., 41 Pa. 60; Shaw v. City of Allegheny, 115 Pa. 46; Bellevue Boro. v. Umstead, 38 Pa. Superior Ct. 116. Hence the general rule that a judicial sale discharges all liens applied, and the sale in 1891, under a tax lien which was discharged in 1888, could not have passed the title to Chantler, through whom the defendant claimed.
In holding that the tax lien was not discharged by the sheriff’s sale in 1888, the learned court below fell into error through following what it conceived to be our construction of the Act of 1824, P. L. 18 (extended to the county of Allegheny by the Act of April 5, 1844, P. L. 199); the language of that act being practically similar to the act of 1857. The first of the cases relied upon by
The act of 1824 does not contain any provision to the effect “that the assessment should be and remain a lien until paid and satisfied.” The provision is simply that such lien shall be fully paid and satisfied before other liens. Allegheny City’s App., 41 Pa. 60, does not hold that under the act of 1824 such liens remain until fully paid and satisfied. On the contrary, after a discussion of that act we there say, “A judicial sale discharged the lien and turned the municipal corporation over to a resort to the fund raised by the sale .... the public were supposed to have been secured by the provision which made such claims prior liens to all others.”
Eaton’s App., 83 Pa. 152, cited by the court below, construes the Act of February 28, 1866, P. L. 116, and holds that upon a judicial sale thereunder taxes not paid
The last case, Phila. v. Powers, 214 Pa. 247, was decided under the Act of March 11, 1846, P. L. 114, which expressly provides that the lien shall not be divested by any judicial sale “as respects so much thereof, as the proceeds of such sale may be insufficient to discharge and pay.”
The act of 1857 contains no provision that a tax lien shall remain until fully paid and satisfied, and none of the cases relied upon by the court below are authority for holding that the language employed in that act is sufficient to take liens out of the general and well-established principles regulating their discharge by judicial sales. Having ruled this point for the appellant it is unnecessary to decide the other questions discussed by counsel.
The assignments of error are sustained, the judgment is reversed, and judgment is here entered for the plaintiff.