City of Philadelphia v. Miller

• Decision Date: 13 November 1956
• Citation: 182 Pa.Super. 239,126 A.2d 812
• Parties: CITY OF PHILADELPHIA v. Alfred MILLER and Benjamin Drob, Appellants.
• Court: Pennsylvania Superior Court

Page 812

126 A.2d 812

182 Pa.Super. 239

CITY OF PHILADELPHIA v. Alfred MILLER and Benjamin Drob, Appellants.

Superior Court of Pennsylvania.

Nov. 13, 1956.

Application for Allocatur Denied Jan. 14, 1957.

Herbert M. Linsenberg, Philadelphia, for appellants.

Levy Anderson, First Deputy City Sol., David Berger, City Sol., Philadelphia, for appellee.

Before RHODES, P. J., and GIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and CARR, JJ.

ERVIN, Judge.

This is an appeal by Alfred Miller and Benjamin Drob from an order of Court of Common Pleas No. 3 of Philadelphia County discharging a rule to show cause why a judgment for city real estate taxes should not be opened.

The matter was disposed of by the lower court on petition, answer and reply. The facts, which were not in dispute, may be summarized as follows: On February 4, 1952 the sheriff sold premises 4108 Pearce Street, Philadelphia, at a second sale for 1947 taxes for the sum of $300. The property had previously been listed for sale on June 4, 1951 but the sale was postponed because the upset price of $1,960 had not been bid. The judgment on which it was sold had been entered against Joseph L. Dear and John A. Dear, the registered owners of the property since 1923. On March 17, 1951 the Dears conveyed the property to one Charles Bliss, who conveyed it to Alfred Miller, one of the appellants herein, on October 5, 1951. Pursuant to the second sale, the sheriff acknowledged a deed to the purchaser, the Kirshbaum Investment Corporation, on February 25, 1952. On July 17, 1952 Miller filed a petition to redeem the premises pursuant to § 32 of the Act of May 16, 1923, P.L. 207, 53 P.S. § 2052. Before an order granting Miller's right of redemption was entered, Kirshbaum Investment Corporation conveyed the premises to Miller by deed dated January 22, 1953. On January 23, 1953 Miller conveyed the premises to Drob, the other appellant herein. Thereafter, it having come to the attention of the city that the property had been conveyed by the purchaser at the sheriff's sale to the owner at the time of the sale, the city reasserted its claim for 1949 taxes in the amount of $32.25, which had not been paid out of the proceeds of the sale. On July 22, 1953 the city issued a writ of sci. fa. and on September 8, 1953 entered judgment against Miller and the Kirshpaum In vestment Corporation.

The property was again listed for sheriff's sale on the first Monday of October, 1953. On October 2 Drob filed a petition to stay the sale and asked leave to intervene and open the judgment. The city filed an answer to the petition and the appellant filed a reply to new matter. On January 3, 1956 the lower court discharged the rule to open the judgment and this appeal followed.

The appellants petitioned this Court to remand the record for the taking of testimony. The appellants' position now is 'that the property was not redeemed, either in fact or as a matter of law, but that Miller merely took title to the property as a bona fide purchaser for value within the redemption period, and therefore that the legal consequences which flow from the exercise of the owner's equity of redemption are not applicable in this case.' The city filed an answer to the petition for remand in which it set forth the appellants' admissions of the redemption in the pleadings. No less than five times Benjamin Drob, the real party in interest, averred and admitted that Alfred Miller, the registered owner of the premises at the time of the sale, redeemed the property upon payment of the redemption price, in accordance with the act of assembly in such case so made and provided. The lower court decided this matter in reliance upon Drob's sworn admissions of a redemption. We will not permit the appellants at this late date to endeavor to change the basic fact upon which the lower court decided this matter. Our Supreme Court, in Coxe v. Sartwell, 21 Pa. 480, 486, 487, passed upon a similar situation with the following comment: 'Was it a purchase of a legal title under a sale for taxes, or a redemption, within the two years allowed for the purpose, which invalidated that title? The assignment from Oviatt to Cowley was made before Oviatt's title had become perfect by the expiration of the time allowed for redemption. The consideration paid to Oviatt was precisely the sum required by law for the purpose of redemption--the sum which Oviatt was bound to receive if tendered to the treasurer by the owner. The money was paid and received under a claim of Brewster Freeman's right to redeem * * *. If Cowley or Sartwell intended to acquire title under the treasurer's sale, they should have given the transaction the form of a purchase, by waiting until Oviatt's title became perfect and then dealing with him on the footing of one who had a title. By giving the transaction that form, two parties would be constituted as a necessary element in the contract. Oviatt, as one of them, would have had the right to sell or retain the land at his pleasure, and, in case of a sale, to fix upon his own terms. He might have demanded something approximating to the value of the land. These were disadvantages which it was not the pleasure of Mr. Freeman to encounter, and therefore he dealt with Oviatt as one who had none of the rights of an owner--who had no claim upon the land further than as a security for the amount of his bid and the per centage allowed by law, and whose imperfect title it was in the power of Mr. Freeman to invalidate at any moment within the two years, by a tender of that sum to the treasurer. Oviatt, therefore, instead of selling his title under the treasurer's sale, yielded to the necessity of the case, and at Mr. Freeman's request consented to an act which totally avoided it: Orr v. Cunningham, 4 Watts & S. 294.'

The petition to remand will be refused.

Where real estate is sold for delinquent taxes free and clear of all liens and encumbrances under § 31 of the Act of May 16, 1923, P.L. 207, 53 P.S. § 2051, and is thereafter redeemed under s32 of said act, 53 P.S. § 2052, does the lien of unpaid taxes continue against the property? We are assuming, as we must on this present record, that the property was redeemed within one year from the date of the acknowledgment of the sheriff's deed by the person who was the registered owner at the time of the sale.

The text writers, as far as we have been able to ascertain, state that the effect of redemption is to place all parties in the position they occupied before the sale. It therefore follows that if the title to the land before sale was embarrassed with liens and encumbrances such as would be divested by the maturing of the tax title, this will be restored by the redemption. Whitworth on Tax Sales and Titles, § 143, p. 130.

Professor Cooley, in his excellent work, The Law of Taxation, Vol. 4, 4th ed., § 1577, says: 'Redemption gives no new title; it simply relieves the land from the sale which had been made.'

L. S. Hecht, at pages 60, 61 in the 1954 supplement to his work on Law of Municipal Claims and Tax Liens Against Real Estate in Pennsylvania, after citing numerous Pennsylvania cases under prior acts, says: 'None of the above cases involved the situation of a sheriff's sale of real estate free and discharged of all tax and municipal claims, liens, mortgages, charges and estates, pursuant to a decree of court, as provided in Section 31 of the Act * * * [with which we are here concerned] However, the reasoning of the courts in all of these cases is such that we believe the same result would be reached if applied to redemption from sales of the character just mentioned, which, of course, are, under the express provision of Section 31, subject to the right of redemption.' ¹

Many years ago, in a per...