Appeals, Nos. 17 and 19, March T., 1950, from judgment of Court of Common Pleas of Fayette County, Sept. T., 1947, No. 177, in case of Alberta Elliott v. Edith D. Moffett, alias Edith D. Moffitt et al. Judgment affirmed.
Eugene C. Sloan, with him Dean D. Sturgis, for appellants.
John L. Spurgeon, with him J. K. Spurgeon, Wade K. Newell and Spurgeon & Spurgeon, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE HORACE STERN
The solution of the problem involved in this case depends upon the relative rights and duties of a mortgagor and a mortgagee in possession under a long continued and unchallenged occupancy.
One Hiram Davis was the owner of a lot of ground and two-story frame dwelling house thereon in the Borough of Brownsville, Fayette County. He died in 1916
intestate, leaving to survive him his widow and three children, Alberta, Evelyn and Howard. Alberta married Thomas Elliott. The widow died in 1939, and in 1940 Evelyn and Howard Davis conveyed their respective interests in the premises to Alberta, the plaintiff in the present proceedings, whereby she became sole owner of the property.
In 1908 Hiram Davis had executed a mortgage on the premises in the principal sum of $4,147 to Samuel Taylor, Trustee, who was the president of the National Deposit Bank of Brownsville, to secure the payment to the Bank of a promissory note in that amount payable within six months of the date thereof. In 1917 Taylor, Trustee, sold and assigned the note and mortgage to Thomas Elliott, plaintiff's husband, who thereupon took over the control of the premises as mortgagee in possession. From 1917 to 1919 he rented the property to a tenant; in 1919 he and plaintiff assumed occupancy and remained until 1923 when they separated and plaintiff left the premises; from 1923 to 1930 Elliott again rented the property to various tenants. In 1930 he was adjudicated a bankrupt and in 1931 his trustee in bankruptcy sold and assigned the mortgage to Edith D. Moffett, one of the defendants, who thereafter occupied the premises as mortgagee in possession until 1946 at which time she delivered possession to William E. Hudson, the other defendant, in accordance with the terms of an agreement to sell him the property. During the years from 1920 to 1943 the property was assessed for tax purposes in the name of Thomas Elliott and since 1944 in the name of Edith D. Moffett, but Elliott did not pay any of the taxes from 1930 on. The property was advertised by the County Treasurer for sale for the 1932 taxes; the sale was not held, however, until 1940, at which time it was purchased by the County Commissioners. In 1942 the County Treasurer executed a deed for the property to the County Commissioners, who in turn, in 1944, executed
and delivered their deed to the defendant, Edith D. Moffett. In 1946 the latter filed a petition in the court below setting forth her claim of title and obtained a rule upon the heirs of Hiram Davis to show cause why her title should not be decreed valid and indefeasible as against all rights or claims whatsoever. In furtherance of that rule the court ordered plaintiff to bring the present action in ejectment to recover possession. By agreement of the parties the case was tried by the court without a jury. Hearing having been had, the court ordered judgment to be entered in favor of the plaintiff and against the defendants, and directed defendant Edith D. Moffett to satisfy the ...