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HESS ET UX. v. WESTERWICK (11/13/50)

November 13, 1950

HESS ET UX.
v.
WESTERWICK, APPELLANT



Appeal, No. 97, March T., 1950 from decree of Court of Common Pleas of Butler County, Dec. T., 1948, in Equity, No. 2, in case of George A. Hess et us. v. Emil Westerwick. Decree reversed; reargument refused December 7, 1950.

COUNSEL

Wm. Alvah Stewart, with him George P. Kiester, Clyde S. Shumaker, Shumaker & Kiester and Weller, Wicks & Wallace, for appellant.

Elder W. Marshall, with him Luther C. Braham, Darrell L. Gregg, Galbreath, Braham & Gregg, Edmund K. Trent and Reed, Smith, Shaw & McClay, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Ladner

[ 366 Pa. Page 92]

OPINION BY MR. JUSTICE LADNER

This is an appeal by Westerwick, the purchaser at a treasurer's tax sale, from the decree of the court below directing appellant to convey to the appellees a deed for the property purchased upon receiving reimbursement of the amount of taxes paid plus 15% and cost of deed.

The matter arose in the court below on a bill in equity filed by the appellees, George A. Hess and Gertrude J. Hess, plaintiffs below, owners at time of tax sale, averring invalidity of the tax deed and praying for the decree made.

The undiputed facts and as found by the court below are: Plaintiffs, by deed dated August 7, 1945, and recorded, purchased a farm of 100 acres in Forward Township, Butler County, on which there was a dwelling house, two tenant houses and a barn, and paid for the same $20,000. Plaintiffs' grantor was Milton E. Rosenberg, who in turn had purchased the same property by deed dated June 7, 1943, and recorded, from Alvin Lichtenstul and Claire Lichtenstul. The property in question had been assessed for tax purposes for 1943 in the name of Alvin Lichtensteel and the unpaid taxes for that year returned to the Commissioners and County Treasurer in that name. The amount of the delinquent taxes returned was $52,10. The taxes for the years of 1944 and 1945 were paid by Rosenberg and taxes for

[ 366 Pa. Page 93]

    the years 1946 and 1947 were paid by appellees (Hess).

Plaintiffs executed two mortgages to the Foster Savings and Loan Association, one for $15,000 and the other for $26,500, and made extensive improvements including inter alia, stables for 40 head of horses, artificial lake, modernization and addition to the dwelling house, etc., costing in all $60,000; so that plaintiffs' total investment was $80,000.

On August 12th, 1946 said property was sold by the Treasurer of the Conty of Butler at Treasurer's tax sale in the advertisement of which the property was described merely as "100 acres of land in Forward Township." It was bid in by the appellant, Emil Westerwick for $60.00 although appellees were occupying the farm at the time of the sale, and had paid their taxes for the year 1946. They were sent no notice either as owners not as terre tenants. Nor was notice of the sale given to Lichtenstul the owner in whose name the taxes of 1943 were assessed. Notice by registered mail of the proposed sale was sent to Milton E. Rosenbert at an address in Pittsburgh where he ...


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