16 Pa. Super. 332 | Pa. Super. Ct. | 1901
Opinion by
This is a scire facias upon a municipal lien for a paving assessment issued against John H. Merz, the registered owner. On the day it issued, the plaintiff caused to be filed an affidavit of service of notice of intention to issue a sci. fa. The defendant’s place of residence in the city of Philadelphia was given in the affidavit. The writ was returned, make known by posting and advertising and nihil habet as to John H. Merz, the registered owner. No affidavit that he was a nonresident of the city or could not be found therein was filed. See Act of June 10, 1881, P. L. 91. The fact is alleged in the affidavit of defense to which we shall hereafter refer that he was living on the premises at the time. About six months later he ceased to be the owner of the premises, his title having passed by virtue of a
The cases cited in the opinion of the court below show conclusively, that, as the record stood at the time these appellees intervened, a valid judgment could not be entered upon this sci. fa. If judgment bad been entered, it would have been void, and a sheriff’s sale thereunder would have passed no title to the purchaser. To paraphrase the language of Mr. Justice Paxson in Ferguson v. Quinn, 123 Pa. 337, it would have been avoid sale-upon avoid judgment; it would have conferred no rights upon the purchaser and would have deprived the owner of none. In view of these authoritative decisions directly upon the point, we need not take up time in the discussion of the foregoing proposition.
As the case is presented to us it turns upon the effect of the appearance of John H. Merz, after he had parted with his title. .We have no right to presume that if he had been duly served he would have been as willing as he now appears to be to have judgment entered against the land. How then can it be assumed that his appearance a year or two after he parted with the title is the full equivalent, so far as protecting the
If the office judgment entered against John H. Merz were in any sense a personal judgment, the contention that he alone could question it would prevail. But as it was a judgment in rem purely, if it had any validity, and as these appellees had been permitted to intervene for the very purpose of contesting the right of the plaintiff to such judgment, we cannot say that the court erred in striking it off. Until that question was decided, we think they had a right to object to the entry of' any judgment upon the sei. fa., under which their land could be sold, even though the effect of such sale might be simply to becloud their title.
The order striking off the judgment is affirmed.