Moyer v. Diehl
| Decision Date | 02 March 1940 |
| Docket Number | 8-1939 |
| Citation | 139 Pa.Super. 59,11 A.2d 651 |
| Parties | Moyer et al. (Nidetch et ux., Appellants) v. Diehl et al |
| Court | Pennsylvania Superior Court |
Argued October 26, 1939
Appeal from decree of C. P. Blair Co., June T., 1938, No. 37, in case of Nora Moyer et al. v. Emery Diehl et al.
Petition and rule to open judgment for possession of real estate.
The facts are stated in the opinion of the Superior Court.
Rule made absolute, opinion by Patterson, P. J. Use plaintiffs appealed.
Error assigned, among others, was decree.
Order reversed and petition dismissed.
Edmund S. Leopold, of Scheeline, Smith & Leopold, for appellants.
John Woodcock, for appellees.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.
This is an appeal by Harry and Sarah Nidetch from an order opening as to Emma Diehl, a judgment for possession of real estate rendered pursuant to the Act of April 20, 1905, P. L. 239, 12 PS § 2571, and of which they are the assignees. The pertinent facts were stipulated of record.
Emery and Calvin Diehl, brothers, each owned a half interest in certain premises in Claysburg, Blair County, on which there is a dwelling house and a theatre, operated by Harry and Sarah Nidetch, as lessees thereof; the dwelling, as we understand, is occupied by Emma Diehl, appellee herein. The Diehls mortgaged the entire property to Frederick Wilt. Soon thereafter Calvin Diehl died, intestate, leaving a widow, the above mentioned Emma Diehl, and five sons. The mortgagee, Wilt, also died and foreclosure proceedings were instituted by his executors. As no administration had been raised upon the estate of Calvin Diehl, it became necessary to serve his widow and heirs. However, the name of Austin Diehl, one of the sons, was inadvertently omitted. The Wilt executors became the purchasers at the sheriff's sale, and the deed was delivered to them on February 11, 1937.
Some question having apparently been raised about the regularity of the sheriff's sale, and the Nidetchs' being desirous of protecting their occupancy of the theatre, Emery Diehl, Emma Diehl and the five sons of Calvin Diehl by quitclaim deed, dated April 26, 1937, conveyed whatever interests they then had in the property to the Nidetchs. On April 30, 1937, two agreements were entered into between the Nidetchs and Emma Diehl.
The portion of the first agreement now material reads:
Manifestly, the purpose of this agreement was to provide a dwelling for Emma Diehl at the stipulated rental in the event of the happening of two contingencies, i. e., if the sheriff's sale should be "vacated and set aside" and if the promisors should "become successful bidders" at a subsequent sale of the property.
The second obligation executed by the Nidetchs provided: "In consideration of the execution and delivery to us of a quitclaim deed for premises located in the Township of Greenfield, County of Blair and State of Pennsylvania, described in said deed, in which Emma Diehl and the children of Calvin Diehl are grantors, and we are grantees, we promise to pay to Emma Diehl and Emory Diehl the sum of Five Hundred ($ 500) Dollars, upon the happening of the following condition, to wit:
"That the foreclosure proceedings heretofore instituted upon a mortgage encumbering said property shall be vacated and set aside, and upon our becoming the successful bidder[s] at a further sale upon the mortgage encumbering said premises; it is made a further condition that in the event said sale be set aside and we redeem the said property and pay said mortgage, and it is satisfied or assigned, in this event also the said sum of Five Hundred ($ 500) Dollars shall be paid to the said Emma Diehl and Emory Diehl."
Although no express mention is made, in the recital, of the fact that Emery Diehl was also a grantor in the quitclaim deed, the meaning of the paper seems to be that, if the contingencies specified in the first agreement should occur, the Nidetchs, in addition to leasing the dwelling to Emma Diehl, agree to pay Emery Diehl and Emma Diehl, jointly, $ 500, or in the event that the sale be "vacated and set aside" and the Nidetchs pay, or secure an assignment of, the mortgage, the $ 500 shall be paid to Emery and Emma Diehl.
That the sheriff's sale be vacated and set aside is an absolute and fundamental requirement upon which each and every undertaking on the part of the Nidetchs is based. As respects the first agreement, another, and equally essential, condition is that the Nidetchs "become successful bidders" at a subsequent sheriff's sale, and as to the second agreement, that they either become successful bidders or otherwise satisfy the claim of the Wilt executors secured by the mortgage.
The Nidetchs then filed a petition in the common pleas of Blair County to set aside the sheriff's sale and duly and vigorously prosecuted these proceedings; they were terminated adversely to their contention.
On May 10, 1937, the Wilt executors instituted proceedings against Emery Diehl and the widow and five sons of Calvin Diehl, under the Act of 1905, for possession of the premises. These proceedings were actively defended by the Nidetchs, who intervened as parties defendant. The common pleas entered a judgment of possession in favor of the Wilt executors and against the defendants and intervening defendants. An appeal to this court was taken by the Nidetchs, which resulted in a modification of the judgment of the lower court; Moyer et al. v. Diehl et al., 130 Pa.Super. 115, 196 A. 575.
We there held, on January 27, 1938, in an opinion by Parker, J., that Austin Diehl's one-fifteenth interest had not passed by the sheriff's sale, but that the Wilt executors were entitled to judgment for fourteen-fifteenths with "present right of possession jointly with the defendants."
On February 28, 1938, the Wilt executors conveyed their interest in the property to Elizabeth and Ed Herr for $ 8,500 and on the next day the Herrs conveyed it to the Nidetchs for $ 10,500. Shortly after the Nidetchs (owning one-fifteenth under the quitclaim deed) thus obtained title to the outstanding fourteen-fifteenths, the Wilt executors caused the existing judgment for possession to be marked to their use. The Nidetchs then issued an alias writ for full possession. When it was served upon Emma Diehl, she filed in the court below the petition upon which the present proceedings arose, viz., her petition to show cause why the judgment for possession should not be opened as to her alleging as her sole ground the agreements referred to above. The Nidetchs answered that the contingencies upon which the agreements were predicated had not occurred and that it had been judicially determined the sheriff's sale could not be set aside. The lower court granted the prayer of Emma Diehl and opened the judgment as to her, upon the theory that the setting aside of the sheriff's sale was not essential to...
To continue reading
Request your trial