22 A.2d 740 | Pa. | 1941
This is a proceeding for possession of real estate, under the Act of April 20, 1905, P. L. 239, 12 PS section 2571 et seq., brought by the purchaser at foreclosure sale. A verdict for the petitioner was directed. This appeal comes from judgment on the verdict.
The appellant, Tenos, based his right to retain possession on (1) a claim of ownership of an undivided half interest by an unrecorded agreement with the mortgagor antedating the mortgage; (2) possession at and prior to the execution of the mortgage; and (3) express notice to the mortgagee, before taking the mortgage, of his possession and ownership.
The question now is whether the evidence should have been submitted to the jury and must be answered by the application of the familiar doctrine of notice.
The mortgage is dated June 2, 1932, and was made by W. R. McKrell. At that time, the record title to the land was, and for some time had been, in McKrell, defendant in the foreclosure. The mortgaged land contained 18 acres and was used in a nursery business conducted by McKrell and Tenos, the appellant, as partners. McKrell paid $10,500 for the land and agreed, by writing dated September 19, 1931, as we interpret the contract, that Tenos should have an undivided half interest in it on repaying to McKrell one-half the consideration; on that obligation, McKrell credited Tenos with $3,000 representing one-half the value of Tenos's landscaping business then made part of the partnership business. The partnership books, kept by McKrell, seem to show that other amounts were credited to Tenos on this account, but the evidence is not clear enough to enable us to determine how much Tenos had paid in addition to the credit of $3,000 allowed to him for turning in his business. The evidence will support a finding *411 that Tenos was in possession as vendee of a one-half interest, but we are not able to say from this record whether Tenos had fully paid his debt to McKrell and, if not, how much remained due.
Tenos, since September 19, 1931, with his family, occupied the dwelling house on the premises. Extensive improvements for the purpose of the nursery business were made. In response to McKrell's application to the petitioner, Mrs. Koubek, and her husband,* for a $5,000 loan, the Koubeks, accompanied by McKrell, visited the premises and found Tenos in possession of the dwelling house. The parties differ in their evidence of what the transaction then consummated was. The evidence on behalf of appellant, Tenos, is to the effect that he knew nothing about the proposed mortgage; that he informed the Koubeks of his ownership as tenant in common with McKrell and of his possession. Obviously, if those were the facts, the lien of the mortgage did not bind the interest of Tenos who was not a party to it: Caveny v. Curtis,
With the evidence in that condition, the learned judge erred in directing the jury to find for the petitioner, who obviously could not be entitled to exclusive possession of the whole if advised, actually or constructively (Rowe *412 v. Ream,
Judgment reversed and new trial awarded.