22 Pa. Super. 298 | Pa. Super. Ct. | 1903
Opinion by
The Provident Life & Trust Company, of Philadelphia, and Thomas Learning, executors and trustees under the will of George W. Lukens-, deceased, on May 2, 1901, presented their petition upon which a rule was granted to show cause, first, why they should not be admitted to intervene as defendants in the above proceeding, and, second, why the judgment entered January 26,1898, in said proceeding should not be opened,
The petitioners confined their attack to the last judgment, and it is certainly doubtful whether the opening of that judgment would have accomplished the end which they sought so long as the earlier judgments were permitted to stand unquestioned : Cardesa v. Humes, 5 S. & R. 65; Davidson v. Thornton, 7 Pa. 128; Warder v. Tainter, 4 Watts, 270; Yaple v. Titus, 41 Pa. 195; Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203. The case has been presented and argued here, however, as if all the proceedings were involved, and we will so consider it. The appellants challenged the validity of the lien upon two grounds : (1) Because of the fact that the property was rural in character it was not subject to a lien for laying water pipes ; (2) the lien was not filed against the registered owner of the land. The record was regular upon its face and this no doubt determined the course of the appellants in moving to open the judgment, instead of to strike off the entire proceeding. The objection to the lien upon the ground that the property was rural involved a question of fact, and every question of that character was, as against the parties to the proceeding and all who claim under them, conclusively determined by the entry of judgment upon the scire facias. When the appellants presented their petition to open the judgment the court below was justified in assuming that they had presented their whole case; those representing the city were not required to do more than answer the petition; they could not foresee that the appellants would produce evidence which practically contradicted the averments of the petition. The petition averred that at the time the lien was filed, in 1874, the land was the property
The appellants took testimony under their rule and offered in evidence a certificate of the registry bureau of the city of Philadelphia, showing that there had been registered on May 15, 1874, twelve days before this lien was filed, a deed for this property, dated April 1,1872, from Charles Lukens, and Eliza, his wife, to George W. Lukens. The deed to which this certificate referred was also offered in evidence. This deed was upon its face an absolute conveyance of the property in question. If it had been delivered to the grantee and the latter had never executed a reconveyance to Eliza Lukens, then the appellants had made a mistake when in their petition they averred that the latter was the owner of the property at the time the lien was filed and so continued down until 1888. The appellants did not, however, attempt to amend their petition. The contradiction between the evidence referred to and the petition verified by affidavit, upon which the appellants based their alleged right to have the judgment opened, may be apparent rather then real. The registering and recording of the deed was evidence that it was delivered to the grantee, but not conclusive of the fact. The deed may never have been delivered, or it may have been accompanied by a defeasance, of record or not of record, which reduced it to a mere security for the payment of money. George W. Lukens may have reconveyed the property to his mother. The allegations and evidence submitted to the court below did not clearly establish the right of the petitioners to have the judgment opened. The burden was upon the appellants to establish their right to the equitable relief prayed for: Philadelphia v. Browning, 13 Pa. Superior Ct. 164: Philadelphia v. Reeves, 15 Pa. Superior Ct. 535; Philadelphia v. Kates, 150 Pa. 30. This was an appeal to the equitable discretion of a chancellor and there is nothing before us to show that that discretion was not properly exercised: Philadelphia v. Unknown Owner, 148 Pa. 536: Philadelphia v. Kester, 149 Pa. 22.
Judgment affirmed.