175 A. 430 | Pa. Super. Ct. | 1934
Argued September 28, 1934. This was an action brought by the plaintiff against the defendant to recover taxes and water rents on nine properties on Durfor Street, Philadelphia, for the years 1929, 1930, 1931 and 1932, which the plaintiff, as purchaser at sheriff's sale, had been compelled to pay, and for which, it was alleged, the defendant, as registered owner, was liable. On August 1, 1932 the sheriff of Philadelphia County executed a deed to the plaintiff for two of the properties; and on October 17, 1932, for the remaining seven properties. It was alleged that on June 28, 1929, the defendant became the owner of all nine properties by deed recorded in Deed Book J.M.H. No. 3040, p. 154, etc. *203
The defendant filed an affidavit of defense in which he admitted that the said properties had been conveyed to him by deed dated June 27, 1929, recorded as aforesaid, but averred that the plaintiff had consistently, from the date of said conveyance, denied that by said conveyance defendant had become the owner of the premises in question and had instituted proceedings in the Court of Common Pleas No. 5 of Philadelphia County, sitting in equity, against Clorinda Spinelli, the grantor in said conveyance, and this defendant, to have the conveyance declared null and void, as in fraud of the creditors of said Clorinda Spinelli; which proceedings resulted, on December 31, 1931, in a final decree adjudging the said conveyance to be fraudulent and ordering the defendant to reconvey the same to said Clorinda Spinelli, the grantor; that on December 16, 1929, in the equity proceedings above mentioned, the court, at the prayer of the plaintiff herein, had appointed a receiver to take charge of and manage the said properties, pending the termination of said proceedings in equity; and that the account of said receiver showed that from December 16, 1929 to October 8, 1932 he had received on account of rents of the properties the following sums of money, to wit:
"1128 Durfor Street ................... $469.10 1130 Durfor Street ................... 579.00 1132 Durfor Street ................... 70.00 1134 Durfor Street ................... 48.00 1136 Durfor Street ................... 401.00 1138 Durfor Street ................... 392.00 1140 Durfor Street ................... 367.00 1142 Durfor Street ................... 587.00 1144 Durfor Street ................... 400.00"
Defendant also averred that these sums of money were received for the benefit of the plaintiff and that the taxes which plaintiffwas compelled to pay were paid out of these sums. *204
The court below entered judgment against defendant for $1,429.04, and accrued interest, for taxes and water rents for the years 1930, 1931 and 1932, stating that the "account of the receiver of these properties appointed by this court pending the original litigation in equity is a matter of official record, and shows how the rents collected by the agent of the court were disbursed. None of them were used to pay taxes or water rents."
The taxes for 1929 were, of course, not recoverable, for the defendant did not become the registered owner of the properties until June 27, 1929; King v. Mt. Vernon Bldg. Assn.,
The defendant did not aver, in his affidavit of defense, that the receiver had paid the taxes, etc. out of the rents received by him. If he had done so, it would have been proper for the court to examine the record of its proceedings to see if they supported the averment; otherwise not: Cain v. Crow,
It is well settled that if a plaintiff is not clearly entitled to judgment for want of a sufficient affidavit of defense, it should not be entered. If the right is in substantial doubt, judgment will not be summarily entered: Gordon v. Continental Casualty Co.,
We think the case should go to a trial.
Judgment reversed, with a procedendo.
