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DELAWARE COUNTY MORTGAGE & FINANCE CO. v. DELAWARE COUNTY BOARD COMMISSIONERS (01/12/51)

SUPERIOR COURT OF PENNSYLVANIA


January 12, 1951

DELAWARE COUNTY MORTGAGE & FINANCE CO., INC.,
v.
DELAWARE COUNTY BOARD OF COMMISSIONERS

COUNSEL

Lindenmuth & Class, George H. Class, George E. Kearns, Jr., all of Media, for appellant.

Edward H. P. Fronefield, County Solicitor, Media, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold, and Gunther, JJ.

Author: Rhodes

[ 168 Pa. Super. Page 144]

RHODES, President Judge.

These two appeals involve the right of an owner to redeem land acquired by a county for unpaid taxes where the county commissioners sold such property at public sale, without an order of court, under section 17 of the Act of May 29, 1931, P.L. 280, as last amended by the Act of May 24, 1945, P.L. 945, § 2, 72 P.S. § 5971q.

The appeals concern two properties: the one at 204 Jeffrey Street, Chester, Delaware County, assessed to Homer and Henrietta Holland, and the other at 1227 Central Avenue, Chester, Delaware County, assessed to John and Mary Breakley. The facts material to each

[ 168 Pa. Super. Page 145]

    appeal are identical, and we shall dispose of both appeals in this opinion.

The Holland property was exposed to sale by the County Treasurer of Delaware County on May 8, 1947, for delinquent taxes for 1943, and purchased by the County Commissioners of Delaware County in their official capacity, in the absence of bidders, on the same day. In like manner the Breakley property was purchased by the Commissioners on April 29, 1943, at county treasurer's sale for delinquent county taxes for the year 1937. The owners did not redeem within the two year period, and after due advertisement, the Commissioners, on April 19, 1950, exposed each property to public sale under the provisions of section 17 of the Act of May 29, 1931, P.L. 280, as amended, 72 P.S. § 5971q.*fn1 They did not fix an upset price for the respective properties to be exposed to public sale. The tax sale clerk sent notice by registered mail to the owners of each property advising them of the scheduled public sale, although there is no provision in the Act requiring such notice of a sale by the County Commissioners. Cf. Hess v. Westerwick, 366 Pa. 90, 76 A.2d 745. At such sale, held on April 19, 1950, the Delaware County Mortgage and Finance Company, Inc., appellant, bid $715.44 for the Holland property, and $539.22 for the Breakley property. These bids were the highest made at the sale for each property. The amounts were accepted by the Commissioners and paid to them by appellant. On April 26, 1950, appellant tendered deeds to the Commissioners for the two properties, but the Commissioners refused to execute such deeds. On the following day, April 27, 1950, appellant filed separate mandamus actions to compel the Commissioners

[ 168 Pa. Super. Page 146]

    to execute to it deeds for the respective properties. On April 28, 1950, or within ten days after the sale, the attorney for the Hollands paid $780.94 to the Commissioners, being the amount necessary to redeem if such right existed. On April 29, 1950, or the tenth day after the sale, the attorney for the Breakleys paid $587.22 for the purpose of redemption. The court below proceeded with the mandamus actions. Preliminary objections had been filed by the Commissioners to which the present appellant filed its answers. Subsequently the pleadings were amended by permission of the court and the facts were stipulated.

After argument before the court in banc the court below held that, under section 17 of the Act of 1931, P.L. 280, as amended, 72 P.S. § 5971q, the owners had ten days after the date of sale to redeem; and it entered judgment in favor of the County of Delaware but ordered the Commissioners to issue certificates of redemption to the former owners upon the payment of the costs of the proceedings.

Under section 17 of the Act of May 29, 1931, P.L. 280, as amended, 72 P.S. § 5971q, county commissioners are authorized to sell property purchased*fn2 by them at tax sales (1) at public sale, with or without an upset price, and (2) when an upset price is fixed and not bid the commissioners may postpone the sale and file their petition in the court of common pleas for an order that the property be sold at a subsequent day clear of all mortgages, municipal claims, and ground rents. When a sale is thus ordered by the court 'The purchaser at such sale, shall take and and forever thereafter have, an absolute title to the property sold, free and discharged of all tax and municipal claims, liens, mortgages, charges and estates of whatsoever kind:'

[ 168 Pa. Super. Page 147]

Then follows the porviso in this section with which we are concerned giving the owners, within ten days after the date of sale, the privilege of redemption. This proviso reads: 'Provided, however, That any owner of the property so sold may, within ten days after the date of the said sale, redeem the property so sold upon payment of the bid price and the costs of sale, and a penalty of ten per centum (10%) of the bid price, which penalty shall be distributed as a part of the proceeds of the sale.'

We are of the opinion that this proviso in section 17, giving 'any owner of the property so sold' the right to redeem 'within ten days after the date of the said sale,' applies equally to all public sales by county commissioners as authorized in this section. We find no reason for construing the word 'sale' in the proviso otherwise. On the contrary, there are many reasons why the ten-day redemption period should apply generally. There is less likelihood of an owner's right of redemption being lost by default in a public sale ordered by the court than in a public sale by the county commissioners without a court order. In the court ordered sale all parties interested are given notice; in the sale without order of court the Act does not provide for any notice by the commissioners except by advertisement. Obviously the right of redemption is not waived by receipt of notice of sale. Under the former, where the purchaser takes the property free and discharged of all tax and municipal claims, liens, mortgages, charges and estates of whatsoever kind, advantages might accrue to the owner which he would not have under the latter if he had no equal right of redemption. If there is any question as to the legislative intent, we should liberally construe the right of redemption as provided in section 17, as the privilege of redemption has always been so construed in Pennsylvania under the various Acts regulating tax sales.

[ 168 Pa. Super. Page 148]

Roth Appeal, 159 Pa. Super. 145, 152, 47 A.2d 716; Levick v. North Versailles Township, 360 Pa. 510, 514, 62 A.2d 758.

We are not unmindful of appellant's argument to the effect that the legislative history of section 17 gives support to its contention that the proviso should be strictly construed and confined to what immediately precedes it; but, as we view it, the section when considered in its entirety clearly indicates the legislative intent to have the right of redemption apply to a public sale by county commissioners without a court order as well as to a public sale by them after court order under this section of the Act. See section 73 of the Act of May 28, 1937, P.L. 1019, 46 P.S. § 573. The construction for which appellant argues would produce an unjustifiable and discriminatory result. See sections 52(1) and 58 of the Act of May 28, 1937, P.L. 1019, 46 P.S. § 552(1) and § 558. In section 17 the paragraph following the proviso reads as follows: 'After such sale, the county commissioners shall make and deliver a deed, being acknowledged before an officer authorized to acknowledge deeds. Where the sale is made without securing an order of court, as aforesaid, such deed shall pass such title as the county commissioners have a right to convey, but where the sale is made after securing an order, as aforesaid, such deed shall pass title free, clear and discharged of all tax and municipal claims, liens, mortgages, charges and estates of whatsoever kind.' This indicates, as the court below points out, that the legislature did not intend to differentiate between a public sale without court order and a public sale with court order, after fixing upset price, except with reference to the kind of a title the county commissioners convey by deed to the buyer.

Although the point was not before us, our reference to the redemption provision of section 17 of the Act of May 29, 1931, P.L. 280, as amended,

[ 168 Pa. Super. Page 14972]

P.S. § 5971q, in Roth Appeal, supra, 159 Pa. Super. 145, 150, 47 A.2d 716, is consistent with an interpretation that such proviso is applicable generally to public sales under section 17. Also in Re Superior Mining Company Property Tax Sale, 359 Pa. 357, 361, 59 A.2d 301, 302, Mr. Justice Allen M. Stearne, in reviewing section 17 of the Act of 1931, as amended, 72 P.S. § 5971q, said: 'The Acts provide that where a county has purchased property because of the failure of the owner to pay taxes, the county may, after the period of redemption, expose the property to public sale after due advertising. The Acts also provide for the fixing of an 'upset' price sufficient to pay costs, expenses, tax claims, etc. The Acts further provide that if at such sale the upset price is not bid, the Commissioners may postpone the sale and petition the court of common pleas to grant a rule on all interested parties to show cause why a decree should not be made that the property be sold freed and cleared of all claims.' It was thereafter pointed out, at page 362 of 359 Pa., at page 302 of 59 A.2d, that: 'The only provision in the statute whereby the sale may be set aside is the one giving the owner the right to redeem within ten days after the date of the sale and where fraud is established.'*fn3 The statement of the Supreme Court is consistent with the interpretation we have given the redemption provision of section 17. Our conclusion follows the rule that a word or phrase when used in one place will ordinarily be construed to mean the same elsewhere in the same section of the Act. Commonwealth v. Stingel, 156 Pa. Super. 359, 362, 40 A.2d 140; Bonomo Unemployment

[ 168 Pa. Super. Page 150]

Compensation Case, 161 Pa. Super. 622, 628, 56 A.2d 288.

The judgments and orders in the respective appeals are affirmed.

HIRT, J., absent.


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