Day v. Ostergard

Decision Date18 July 1941
Docket Number169-1941
Citation146 Pa.Super. 27,21 A.2d 586
PartiesDay, Appellant, v. Ostergard et al
CourtPennsylvania Superior Court

Argued April 23, 1941.

Appeal from decree of C. P. Warren Co., June T., 1940, No. 15, in case of John A. Day v. P. C. Ostergard et al.

Declaratory judgment proceeding.

The facts are stated in the opinion of the Superior Court.

Decree entered in favor of defendants, opinion by Braham, P. J specially presiding. Plaintiff appealed.

Error assigned was decree.

Decree affirmed.

R Pierson Eaton, for appellant.

Allison D. Wade, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.


Hirt, J.

This appeal arises from a controversy as to the right of possession of certain seated lands in the Borough of Youngsville in Warren County. Defendants claim the right as purchasers at a tax sale; plaintiff asserts that, as mortgagee of a former owner, he is entitled to exclusive possession and to the rents and profits as incidents thereof.

The facts are not in dispute. Plaintiff is the holder as mortgagee of a first mortgage given by an owner of the land in 1919. There was a default in the payment of interest in 1924, and thereafter the mortgagor, while still the owner yielded possession of the land to plaintiff, who has leased it with the dwelling house to tenants and has collected all of the rents and profits. Taxes assessed for the year 1931 were unpaid and when returned and docketed in accordance with the Act of May 29, 1931, P. L. 280, 72 PS 5971b, became a lien on the land subject to that of plaintiff's prior mortgage. After due advertisement the land was sold by the Treasurer of Warren County at public sale on October 18, 1934 to the County Commissioners, in the absence of bidders at the sale. On the failure of the owner or the plaintiff mortgagee to discharge the tax lien by payment within the redemption period of the act, title to the premises by operation of law vested in the County Commissioners on October 18, 1939. It is conceded that all of the provisions of the Act of 1931, supra, which govern the procedure for the sale of seated lands for taxes, have been fully complied with, and that defendants' title is in fee simple and is now indefeasible. Section 9 of that act provides: "No such sale shall discharge the lien of any mortgage which shall have been recorded before such taxes became liens .... and which is or shall be prior to all other liens, except other mortgages, ground rents, municipal claims, and/or other taxes." From the fact that the lien of his mortgage was not divested by the sale, plaintiff contends that his right to possession of the premises under the terms of the mortgage, is unaffected by the vesting of an indefeasible title to the land in the county commissioners, thus raising the basic question in this appeal.

We think the question was properly raised in a proceeding under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, 12 PS 831, as amended. True, with plaintiff in possession, defendant might have brought ejectment, or the plaintiff might have ruled defendants to bring ejectment. Plaintiff refrained from pursuing his statutory remedy but we think that this fact did not oust the jurisdiction of the court in this proceeding. The 1935 amendment, 12 PS 836, provides: "Nothing herein provided is intended to or shall limit or restrict the general powers or jurisdiction conferred by the act hereby amended." Under general powers it is a matter of judicial discretion whether jurisdiction will be taken in any particular case and where, as here, there are antagonistic claims indicating imminent and inevitable litigation coupled with a clear manifestation that the declaration sought, will end the controversy, we cannot say that the court abused its discretion in taking jurisdiction (Capital Bk. & Tr. Company's Petition, 336 Pa. 108, 6 A.2d 790) though plaintiff might have had the question determined under another statute providing a special form of remedy. Where the question is to the right to rents as they accrue, a prompt and conclusive decision is important. The necessary delay in a proceeding on a rule to bring ejectment, therefore, does not supply an entirely adequate remedy.

We need not decide the question of the sufficiency of the title of the Act of 1931, supra, a question raised in the court below and referred to in the oral argument. It is not the subject of any assignment of error. Moreover, both parties, by agreement, submitted to the jurisdiction of the court in the declaratory judgment proceeding. Having agreed on...

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21 cases
  • In re Johnson's Estate
    • United States
    • Pennsylvania Supreme Court
    • May 2, 1961
    ... ... 557, 187 A. 203, and Bergman v. Gross et al., 329 Pa. 67, 196 ... A. 488, we reiterated that declaratory judgment would not lie ... where a statutory remedy has been provided for ... [ 10 ] Grambo v. Southside Bank & Trust Co., ... 141 Pa.Super. 176, 14 A.2d 925; Day v. Ostergard, 146 ... Pa.Super. 27, 21 A.2d 586 ... [ 11 ] See also: Gerety's Estate, 349 Pa ... 417, 37 A.2d 792; Keefer's Estate, 351 Pa. 343, 41 A.2d ... 666; Fahey's Estate, 356 Pa. 535, 52 A.2d 580 ... [ 12 ] Act of May 26, 1943, P.L. 645, § 1, ... 12 P.S. § 836 ... [ 13 ] In Wirkman ... ...
  • Johnson's Estate, In re
    • United States
    • Pennsylvania Supreme Court
    • May 2, 1961
    ...where a statutory remedy has been provided for.10 Grambo v. Southside Bank & Trust Co., 141 Pa.Super. 176, 14 A.2d 925; Day v. Ostergard, 146 Pa.Super. 27, 21 A.2d 586.11 See also: Gerety's Estate, 349 Pa. 417, 37 A.2d 792; Keefer's Estate, 351 Pa. 343, 41 A.2d 666; Fahey's Estate, 356 Pa. ......
  • Wheeler v. Bullington
    • United States
    • Alabama Supreme Court
    • April 12, 1956
    ...Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062, 1063; Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 916-917; Day v. Ostergard, 146 Pa.Super, 27, 21 A.2d 586, 588; Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209, 213; Watson v. Claughton, 160 Fla. 217, 34 So.2d 243, 246-247; Pressman v......
  • Moore v. Moore
    • United States
    • Pennsylvania Supreme Court
    • January 29, 1942
    ... ... remedy, as it will not be until the wife dies. The Superior ... Court in Grambo v. Southside Bank & Trust Co., 141 ... Pa.Super. 176, 14 A.2d 925, has sanctioned a wider use of the ... declaratory judgment than theretofore prevailed. It has also ... done so in Day v. Ostergard, 146 Pa.Super. 27, 21 ... A.2d 586. We conclude that the present controversy is one ... within the scope of a declaratory judgment proceeding, and ... that the court below was in error in deciding to the ... contrary ... In her ... petition, after setting forth the agreement and ... ...
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