Philadelphia v. Adams

18 Pa. Super. 639 | Pa. Super. Ct. | 1902

Opinion by

W D. Porter, J.,

If this case was presented in the court below in the same manner in which it has been argued here it is not strange that this judgment was entered. The appellant has made it clear that he believes his affidavit of defense to be insufficient unless he can induce this court to overrule its decision in Philadelphia v. Adams, 15 Pa. Superior Ct. 483. The record which was in that case presented for our consideration showed a judgment against Adams alone and was in all respects regular upon its face. The appellant was not a party to the record, but presented a petition alleging a defense upon the merits and praying that the judgment be opened; an answer to this petition was filed denying the allegations of fact. More than a year later the appellant moved to strike off the judgment for reasons not appearing upon the face of the record. The court below discharged both rules, and upon the authority of Philadelphia v. Kester, 149 Pa. 22, and Jeannette Boro. v. Roehme, 9 Pa. Superior Ct. 33, affirmed by the Supreme Court in 197 Pa. 230, this court affirmed the judgment. We cannot disregard two decisions of the Supreme Court and must adhere to what we said in Philadelphia v. Adams. The judgment entered by the court below may be erroneous, however unsound the reasons urged by the appellant for its reversal.

The question here presented is entirely different, from that which arose out of the record upon the former appeal. The plaintiff now makes the appellant a party to the proceeding and attempts to fix a lien upon his title. He is required by this writ of scire facias to show cause why the land in his hands should not be bound by the lien. Adams, the original defendant, may have been without an equitable defense to the lien and the proceedings as against him may have been regular, that is all that the former adjudication determined. The appellant in his affidavit of defense unequivocally stated tbe chain of title under which he claimed and the names of the real and registered owners of the land from a time prior to the date at which this lien accrued, that the land was conveyed to him on July 13, 1895, and his deed was recorded and registered on July 15, 1895; and it is expressly averred that Adams was not the actual or registered owner of the premises in question when the work was done for which the lien was filed, nor at any time since. The affidavit recites in detail the proceedings under the lien and avers that no one of the actual or registered owners under whom he claims has ever been made a party to or had notice of these proceedings. If the facts are as stated in this affidavit, neither the actual nor registered owners of this land have ever been made parties to-this lien or any proceeding under it, and the lien has been kept alive for twenty years against a fictitious defendant. Whatever may have been the rights of the plaintiff as against Adams, it is very clear that when the actual owner and the registered owner are one and the same person, the legislation which protects the registered owner will not permit a lien to be fastened upon his title by bringing him in as a terre-tenant by a scire facias in a series of proceedings extending over a period of twenty years and of which neither he nor any previous real or registered owner has had notice. We are of opinion that the affidavit of defense was sufficient.

The judgment is reversed and a procedendo awarded.