57 Pa. Super. 601 | Pa. Super. Ct. | 1914
Opinion by
■This is a proceeding by a sheriff’s vendee to obtain possession of real estate under the Act of April 20, 1905, P. L. 239. Section 14 of the act is as follows: “The right of possession of a tenant for years shall be deemed paramount to that of a purchaser at a judicial sale, if, and only if the letting to him shall precede in point of date the entry of the judgment, order or decree on which such sale was made, and also shall precede the recording or registering of the mortgage, deed and will, if any, through which by legal proceeding the purchaser derives title, unless the letting is made with actual notice to such tenant of the contemplated entry of such
The pertinent facts are: A. A. Crabbs on December 8, 1908, executed and delivered to the-petitioner a mortgage on the real estate involved, and gave an accompanying bond in the sum of $7,000. The mortgage was duly recorded on December 22, 1908. A judgment was entered on the bond on June 19, 1913, by virtue of a warrant of attorney which recited that "This bond is secured by the mortgage of the same date and recorded in the Recorder’s Office of Allegheny County, Penna., in Mortgage Book, vol. 1333, on p. 676.” This was notice that the suit was founded on a mortgage debt secured by a mortgage upon the land on which it was a lien. A writ of fieri facias was issued upon the judgment so entered and the real estate pledged by the mortgage was sold by the sheriff, and his deed duly acknowledged was delivered on July 28, 1913, to the petitioner as the purchaser. On March 8, 1913, Crabbs, while owner and mortgagor of the real estate demised the premises by a written lease to J. Alexander & Son, the respondent in-this proceeding, for the term of five years from April 1, 1913, at the quarterly rental of $225, payable in advance.
On August 8, 1913, as provided by sec. 10 of the act of April 20, 1905, the respondent attorned as tenant, in writing to the petitioner under the terms of his lease with Crabbs. The court below held that the tenant had a right paramount to the right of the petitioner and dismissed the proceeding. In construing the act of 1905, the court below held that its language signified an intention to change the rule in such cases which had been well settled, and universally followed since McCall v. Lenox, 9 S. & R. 301, viz.: "If a bond and warrant of attorney be given accompanying a mortgage, a sale of the land under a fieri facias and venditioni exponas issued on the judgment entered up under the warrant,
The order is reversed and a procedendo awarded.