Appeal, No. 190, Jan. T., 1950, from judgment of Court of Common Pleas of Luzerne County, March T., 1949, No. 807, in case of Maria Klimowicz Steinhardt, also known as Maria Klimowicz and Maria Klimovich et al. v. Russian Orthodox Catholic Mutual Aid Society of U.S.A. et al. Judgment reversed in part and affirmed in part.
Peter Kanjorski, for appellants.
Jacob Seminov Russin, for Russian Orthodox Catholic Mutual Aid Society, appellee.
Alfansy Klimowicz et ux. and Frank Walkowiak et ux., appellees, in propriis personis.
Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
This is an appeal from a judgment entered in favor of the defendants on preliminary objections to a complaint filed in an action of ejectment for the recovery of two parcels of real estate designated therein as parcels No. 1 and 2 respectively. The relevant facts averred in the plaintiffs' complaint are as follows:
On May 2, 1925, Alfanasy Klimowicz and Antonia, his wife, were owners of both parcels 1 and 2, and on that day executed to the defendant, a mortgage and bond and warrant in the amount of $6,000 on parcel No. 2, duly recorded. On February 16, 1932, judgment was entered on the bond in favor of the defendant against the mortgagors. In 1936, the property was conveyed to the plaintiffs by the judgment debtors, but the record does not set forth the terms of the deed of conveyance nor the consideration therefor, if any. On February 13, 1937, a sci. fa. to continue the lien of the judgment was issued against the judgment debtors (mortgagors) and the plaintiffs (grantees) as terre tenants. Judgment was duly entered thereon April 14, 1937. A writ of execution (fi. fa.) was issued on this judgment March 28, 1942, under which a levy on both parcels was made before the lien expired. On May 1, 1942, the premises (both parcels) were sold at a sheriff's sale and bought in by the defendant. It will be noted that the sale took place after the lien had expired. The sheriff's deed dated May 11, 1942, and acknowledged June 13, 1942, was duly executed conveying the property (except
for the interest of one of the plaintiffs, Dimitri Klimowicz, whose rights in the property were adequately protected by the court below) to the defendant. The defendants went into possession of the property on February 27, 1943, and the plaintiffs claimed mesne profits from that date in addition to possession and title.
To the complaint averring the above facts, preliminary objections were filed pursuant to Pa. R.C.P. No. 1017 (b)(4), the basis of the preliminary objections being that the complaint did not set forth a cause of action. The case was regarded by the learned court as raising only the question whether a sheriff's sale was valid where held after the expiration of five years from the date of ...