25 Pa. Super. 347 | Pa. Super. Ct. | 1904
Opinion by
The city, on December 6, 1875, filed a lien for water pipe against a lot at the corner of Hart lane and Front street road, and against “ Frank C. Nell, owner, or reputed owner, or whoever may be owner.” This lien was regularly revived by successive sci. fas., the last judgment having been entered on September 16,1897. Samuel Rowen having, on April 9,1902, presented his petition setting forth that he was the registered owner of the land, obtained a rule to show cause why the judgment should not be opened and he permitted to defend, which rule was subsequently made absolute. A plea was entered and the parties went to trial upon the issue. A verdict was rendered in favor of the plaintiff, the court reserving the question, “ Whether the plaintiff is entitled to a verdict in this proceeding, in view of the fact that the lien was not filed against
There was no dispute as to the facts in this case, whether the city had a right to a judgment under the record as it then stood and the admitted facts was a question of law. The actual owner of the land at the time the lien was filed was John C. Thompson, who before the claim had accrued as a lien of record had duly registered his title in accordance with the provisions of the Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, there was no evidence of title in any other person at that time. All changes in the ownership of the property from a date prior to the filing of this lien have been promptly registered and the title which Rowen now holds has always been entitled to the protection afforded by the statutes referred to. The owner, who had duly registered his title, was not made a party to the original lien, nor has he, nor any of liis successors, been made a party to any of -the proceedings under it. The city might have made the registered owner a party to a scire facias to continue the lien, and such registered owner would have had the right to raise the question growing out of the failure of the city to comply with the provisions of the statutes : Simons v. Kern, 92 Pa. 455; Gans v. Philadelphia, 102 Pa. 97; Philadelphia v. Dungan, 124 Pa. 52; Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203. The same rule must prevail when the registered owner voluntarily becomes a party to the proceedings and defends in a scire facias upon the lien which is a cloud upon his title. The effect of a judgment against him in either case would be the same; to fix the land in his hands for the lien. We are not now dealing with a proceeding to open a judgment, which is an appeal to the equitable powers of the court, in which the action of the court below is only to be reversed for an abuse of discretion, and the cases of which Philadelphia v. Kates, 150 Pa. 30; Philadelphia v. Adams, 15 Pa. Superior Ct. 483, and Philadelphia v. Lukens, 22 Pa. Superior Ct. 298, are examples, have here no application. The city made no attempt to prove that the actual owner of the land, at the time the claim accrued as
The judgment is affirmed.
