Tiegel v. Love

61 Pa. Super. 149 | Pa. Super. Ct. | 1915

Opinion by

Trexler, J.,

This is an action of ejectment. The verdict of the jury was for the defendant. Thomas M. Brown in 1892 conveyed to A. J. Kelley, Sr., all his interest and estate in lands embraced by the boundary or location of Grand-view avenue, Pittsburgh, and also all the land lying or abutting on the north or northwest side of Grandview avenue. On the same day A. J. Kelley, Sr., gave a mortgage for the unpaid purchase-money and thereafter by process duly issued on the mortgage, the sheriff sold the property. Thomas M. Brown purchased it. He after-wards conveyed the property to Karl F. Tiegel, the plaintiff. During the time A. J. Kelley, Sr., owned the property it was duly registered in the Register’s Division, Bureau of Surveys, City of Pittsburgh, as property of A. J. Kelley. Brown’s deed was never registered. The City of Pittsburgh thereafter graded, paved and curbed the sidewalk on Grandview avenue and a lien was filed against the property and Kelley, the registered owner, was named as owner or reputed owner. He was the only person who appeared as owner of the property upon the city records. The city brought suit on the municipal lien, obtained judgment, caused the property to be sold, and John B. Love, the defendant purchased the property at sheriff’s sale in 1902. Does he have a valid title as against Brown’s vendee?

(1) The first objection made.by the plaintiff to defendant’s title is that the description in the lien was not a reasonable description as required by the Act of May 16, 1891, P. L. 69. In the lien the premises are described as follows: “In the 35th ward of the City of Pittsburgh, on the north side of Grandview avenue at Singer Novick & Co.’s lot and thence along said Grandview avenue 178 feet and extending back 70 feet more or less.” The lien contains an averment that it is filed for grading, paving and curbing the sidewalk on Grandview avenue from Oneida street to Republic street. The court left the question of the reasonableness of the description to the jury. He was not without authority for so doing: Cribbs v. McDowell, 48 Pa. Superior Ct. 39; McClintock v. Rush, 63 Pa. 203; May v. Mora, 50 Pa. Superior Ct. 359. In these cases the question of the sufficiency of a description in a mechanic’s lien was left to the jury. In Shenly v. Com., 36 Pa. 64, a case of a municipal lien, the same question was left to the jury. We are of the opinion that the description contained in the lien is sufficient to allow the verdict of the jury, declaring it to be a reasonable description to stand. The description is not so faulty as to require the court, as a matter of law, to declare it insufficient..

(2) The next question arises as to the scire facias issued on the lien. The first scire facias was returned by the sheriff “nihil,” and alias being issued, the return was made, “after diligent search and inquiry and not being able to find A. J. Kelley, att’y, or agent, I did on the 16th day of October, 1901, post a true and attested copy of this writ on the within described premises, nihil as to the defendant.” Then follows the declaration of the sheriff that he had made publication as required by law. The Act of May 16, 1891, P. L. 69, under which the several writs were issued provides that “said writ of scire facias shall be made returnable to the monthly or other return days in the respective courts and shall be served upon the owner or reputed owner personally, or by leaving a copy thereof, duly attested, with an adult member of his family, at his dwelling house, at least ten days before the return day thereof. If the owner of the property cannot be found, or has no dwelling within the county in which the property lies, the sheriff shall thereupon return the said writ “nihil,” and thereupon an alias scire facias may issue, which shall be served by notice posted upon the premises, stating the substance of the writ, at least ten days prior to the return day, and also by advertisement in at least two newspapers published in the county in which the premises are located, and nearest thereto, once a week for three successive weeks.” The return of the sheriff to the first writ was a compliance with the letter of the act. He returned it “nihil.” He did not state the fact that he had been unable to find the defendant within the county or that the defendant had no residence within the county. Upon the alias scire facias, he returned that he had not found the defendant but he omitted to state that the bills posted upon the premises contained the substance of the writ. He also neglected to give the year in which the advertisements were inserted but gave the days and the months. As to the latter objection, we do not think there can be any doubt as to the year in which the advertisements appeared. It certainly is not a violent presumption to conclude that the dates occurred between the issuing of the writ and the return of the same, so that we think there is nothing in this objection. The other objections are more serious but we do not think that they require a reversal. It may be noted that neither of these returns are erroneous or contrary to the express mandate of the law. The only objection that can be made to either of them is that they do- not recite the facts fully. Some details are omitted from the return which, according to the proper practice, should have been included. This presents quite a different question than if the return had been made contrary to the provisions of the act of assembly. They are mere irregularities or omissions such as in our opinion are cured by the judgment that was subsequently entered. The proceedings were in rem and no one was entitled to any notice except the registered owner. It is not claimed that there is any defense on the merits : Delaney v. Gault, 30 Pa. 63; Emerick v. Dicken, 92 Pa. 78. A scire facias on a municipal claim is a proceeding in rein, and a sheriff’s sale under a judgment obtained thereon passes title to the purchaser whether the real owner is named or not. The purchaser in such case is not bound to shoAV that the acts of assembly have been strictly complied with: he is protected by the judgment, as pointed out in Emrick v. Dicken, supra. A defense urged directly against the city as was the case in Wistar v. Philadelphia, 86 Pa. 215, presents an entirely different question from the case of a sheriff’s vendee who has paid his money upon the faith of a judicial sale.

(3) The contention of the plaintiff that the Act of May 8, 1901, P. L. 142, repealed the Act of May 16, 1891, P. L. 69, and that the latter act thus provides the method of service of the alias scire facias which was issued after the passage of the latter act is not tenable. As pointed out by Rice, P. J., in Philadelphia v. Mason, 37 Pa. Superior Ct. 478, it is, “a fair conclusion from the language of the act (1901) that notwithstanding its repealing clauses, it was not intended to repeal the Act of 1891 so far as applied to the collection of claims, the right of which accrued before the Act of 1901.” See also Scranton v. Stokes, 28 Pa. Superior Ct. 434.

(4) It will be noticed that the deed of A. J. Kelley designated him as senior, and the city registration described him as A. J. Kelley without any addition. This is not a variance of any import. The designation Sr. or Jr. is usually only temporary and descriptive of the person and forms no part of the name: Coit v. Starkweather, 8 Conn. 289; Kincaid v. Howe, 10 Mass. 203; 29 Cyc. 267.

In conclusion the City of Pittsburgh when it constructed the sidewalk along Grandview avenue, acquired a right to file a lien for the cost of the same, if not paid, against the respective properties. The claim was not a personal claim against the respective owners but was purely a proceeding in rem against the different properties. In ascertaining who the owner of the property was, the only reference required by the city was to its bureau of registration of property and when it found A. J. Kelly to be the registered owner although he no longer had title, it fulfilled all the requirements of the Act of Feb. 27, 1871, P. L. 126, in this respect when it filed its lien against the property and named him as owner or reputed OAvner. As the verdict settled the matter that the description in the lien Avas sufficient to identify the property, the purchaser at the municipal tax sale obtained a good title and Ave see nothing in the case that calls for a reversal.

The assignments of error are overruled and judgment affirmed.