Keystone Brewing Co. v. Schermer

Decision Date27 June 1913
Docket Number51
Citation241 Pa. 361,88 A. 657
PartiesKeystone Brewing Company v. Schermer, Appellant
CourtPennsylvania Supreme Court

Argued February 26, 1913

Appeal, No. 51, Jan. T., 1913, by Jacob Schermer and Samuel Miller, Jr., from judgment of C.P. Lackawanna Co., Oct. T 1911, No. 194, on findings of referee in favor of plaintiff in case of Keystone Brewing Company or R. C. Wills v. Jacob Schermer, Defendant, Samuel Miller, Jr., Terre Tenant, and M. Nagelberg, formerly a Terre Tenant. Affirmed.

Scire facias to revive and continue the lien of a judgment on certain real estate.

The opinion of the Supreme Court states the facts.

The case was referred to a referee, who found for plaintiff. Exceptions to the referee's findings were dismissed by the court and judgment was entered for plaintiff. Defendants appealed.

Errors assigned were in dismissing the exceptions and in entering judgment for plaintiff.

In none of the assignments of error do we find anything which should be sustained. They are all overruled, and the judgment is affirmed.

A. A. Vosburg, with him Joseph F. Gilroy, for appellants.

J. E. Sickler, with him H. D. Carey, for appellees.

Before BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE POTTER:

On June 28, 1911, a writ of scire facias, for the purpose of reviving and continuing the lien of a judgment on certain real estate described in the praecipe and writ, was issued against Jacob Schermer, defendant, with notice to Samuel Miller, Jr., terre tenant, and M. Nagelberg, formerly terre tenant. Pleas were filed, and by agreement the case was sent to a referee. From his finding of facts it appears that the judgment sought to be revived was entered November 14, 1907, on a note of that date, for the sum of $1,560.59, with interest, made by Jacob Schermer, and payable one day after date to the Keystone Brewing Company or R. C. Wills. The note represented indebtedness of Schermer to the Brewing Company. At the date of the entry of the judgment Schermer was the owner of the real estate described in the writ of scire facias, which was situated in Lackawanna County, and the praecipe and writ limited the proceedings to that real estate, no personal judgment against Schermer being sought. On January 9, 1908, the property in question was conveyed by Schermer and wife to Nagelberg, and the deed was duly recorded. A contemporaneous agreement was executed by Nagelberg and Schermer which recited Schermer's financial difficulties, and that Nagelberg was willing to advance money to the creditors of Schermer, and extend a credit to him provided the real estate of the latter should be transferred to Nagelberg. An accurate account of the moneys expended in the payment of liens was to be kept by Nagelberg, and upon repayment to him of all moneys thus expended, with interests thereon, Schermer was to be entitled to a reconveyance of the property at the end of a year from the date of the deed and agreement. On the same day the deed from Schermer to Nagelberg was executed and recorded, an involuntary petition in bankruptcy was filed against Schermer, and on March 2d, he was adjudicated a bankrupt, and on October 15, 1908, he was discharged from bankruptcy. Among the list of debts scheduled by the bankrupt was the judgment note on which the judgment now sought to be revived was entered. He did not list the property in question in his schedule of assets, but did include the option to purchase the same, which option was afterwards sold by the trustee in bankruptcy for the sum of $25.00. The trustee in bankruptcy made no attempt to set aside the conveyance to Nagelberg, but demanded from him payment of the balance of the purchase price remaining in his hands which had not been applied to the payment of liens; and Nagelberg thereupon paid over to the trustee the sum of $1,578.09 as such balance. The plaintiffs in this case filed no claim on their judgment against the bankrupt's estate. On March 11, 1909, the real estate in question was conveyed by Nagelberg and wife to Samuel Miller, Jr., named in the writ as terre tenant, and the deed was recorded. When the latter transfer was made, an agreement similar to that between Nagelberg and Schermer was entered into between Miller and Schermer, the latter being given an option to purchase at any time within five years. On January 10, 1908, a rule was granted to show cause why the judgment should not be opened as to all thereof in excess of $1,154.52 but the rule was afterwards discharged for reasons not appearing on the record. The referee concludes his findings with the following statement: "From the credible evidence in the case I find that the...

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