Mutual Guarantee Building & Loan Ass'n v. Wilcox
| Decision Date | 20 March 1922 |
| Docket Number | 220 |
| Citation | 273 Pa. 385,117 A. 89 |
| Parties | Mutual Guarantee Building & Loan Association, Appellant, v. Wilcox |
| Court | Pennsylvania Supreme Court |
Argued February 21, 1922
Appeal, No. 220, Jan. T., 1922, by plaintiff, from order of C.P. Lackawanna Co., March T., 1921, No. 714, dismissing proceedings for possession, in case of Mutual Guarantee Building & Loan Association v. Mary Wilcox. Affirmed.
Petition by purchaser at sheriff's sale to secure possession. Before NEWCOMB, J.
The opinion of the Supreme Court states the facts.
Petition dismissed. Plaintiff appealed.
Error assigned, inter alia, was order, quoting it.
The decree of the lower court is affirmed at appellant's costs.
Bayard L. Buckley, with him D. J. Reedy and James J. O'Malley for appellant. -- The lease was a deed: Caldwell v Fulton, 31 Pa. 475; Funk v. Haldeman, 53 Pa. 229; Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387; D., L. & W.R.R. v. Sanderson, 109 Pa. 583.
The mother was a terre-tenant: Hulett v. Mut. L. Ins. Co., 114 Pa. 142; Dengler v. Kiehner, 13 Pa. 38.
W. W. Watson, for appellee, cited: Davey v. Ruffel, 162 Pa. 443; Williams v. Downing, 18 Pa. 60; Marsh v. Nelson, 101 Pa. 51; Mitchell v. Hamilton, 8 Pa. 486; Dengler v. Kiehner, 13 Pa. 38; Tyrone & Clearfield R.R. v. Jones, 79 Pa. 66; Hulett v. Mut. Life Ins. Co., 114 Pa. 146; Chahoon v. Hollenback, 16 S. & R. 425; Catlin v. Robinson, 2 Watts 373.
Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Defendant, Mary Wilcox, and her husband, Oliver Wilcox, were the owners of the premises situated at the northeast corner of West Parker Street and Amelia Avenue, in the City of Scranton. On the 8th day of September, 1913, they conveyed the property to their son, Horace Wilcox, for the consideration of "one dollar and other good and valuable considerations" and on the 29th of September, 1913, the son, in writing, leased the property to his father and mother, "in consideration of natural love and affection and the further consideration of one dollar and the covenants in the case requiring the lessee to pay all water rents and keep the premises in good order and repair and the lessor to pay all taxes and municipal assessments made against the property, to have and to hold the said premises with appurtenances to them, the said Oliver Wilcox and Mary Wilcox, for and during their natural lives, and during the natural life of the survivor of them, and, at the decease of both the said Oliver and Mary Wilcox, the tenancy hereby created to wholly cease and determine." Lessees at the time of the making of the lease and since have continued in the possession and occupancy of the premises. The entire contract clearly indicates the purpose to create a term with right of reentry in the lessor for breach of covenant and not to vest a technical life estate in the guise of a term.
On November 8, 1913, Horace Wilcox executed and delivered to plaintiff his bond in the sum of $2,000 secured by a mortgage on the property above referred to and, on April 11, 1914, delivered his bond to plaintiff secured by a mortgage on the premises in the further sum of $2,500. In 1918 sci. fas. were issued on both mortgages and returned nihil habet as to Horace Wilcox and served as to Mary Wilcox "terre-tenant," her husband having previously died. To alias sci. fas. similar returns were made and later judgments were entered upon which lev. fas. were issued and the property sold by the sheriff, plaintiff becoming the purchaser.
A petition was then filed under the Act of April 20, 1905, P.L 239, to dispossess Mary Wilcox, who contested the proceedings, alleging possession under the lease and denying she was a terre-tenant of the property. In dismissing the petition the court below correctly held the lease did not come within the provisions of the recording Act of...
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