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MALAMED v. SEDELSKY (05/21/51)

May 21, 1951

MALAMED
v.
SEDELSKY, APPELLANT



Appeal, No. 132, Jan. T., 1951, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1950, No. 8187, in case of Ben Malamed v. Harry Sedelsky et ux. Judgment reversed.

COUNSEL

James L. Price, with him Price & Propper, for appellants.

Foster A. Dunlap, with him Philip S. Polis, for appellee.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Ladner

[ 367 Pa. Page 354]

OPINION BY MR. JUSTICE LADNER

This is an appeal from a judgment for plaintiff entered on the pleadings in an action to quiet the title of real estate acquired at a sheriff's sale. The relevant facts are not in dispute and are as follows: Defendants, Harry Sedelsky and Selma, his wife, purchased 7224 Rutland Street, Philadelphia, which is the real estate in question, paid the down money and took title in the name of Sidney Pastner, who is Selma's brother and a veteran soldier. This was done in order that a mortgage might be secured from the Veterans' Administration. Such a mortgage in the sum of $6,800 was obtained which was executed by Sidney Pastner to whom the title was conveyed by the vendor, but all of the purchase price over and above the mortgage as well as the adjustments and expenses at settlement were paid by the Sedelskys, who entered into and remained in exclusive possession of the premises.

The deed to Sidney Pastner was dated and recorded February 24, 1947, and on June 23, 1949, Pastner executed and delivered a deed for the premises in question to the Sedelskys, but this deed was not recorded until December 16, 1949. On August 9, 1949, after the delivery of the deed by Pastner to the Sedelskys, but before it was recorded, Pastner executed a judgment note to plaintiff on which judgment was entered October 14, 1949. This was also after delivery but before the recording of Pastner's deed to the Sedelskys.

Thereafter, pursuant to execution issued on the judgment the premises were sold July 3, 1950, by the sheriff to the plaintiff the judgment creditor and the sheriff's

[ 367 Pa. Page 355]

    deed delivered in due course. There followed this action for possession and to quiet title which we now have before us.

On these undisputed facts as gleaned from the pleadings, the learned court below entered judgment for the plaintiff for the reason that the Act of June 4, 1901, P.L. 425, 21 P.S. 601, makes void a resulting trust as against judgment creditors, mortgagees or purchasers unless, inter alia, a written declaration of trust by the holder of the legal title has been recorded, citing Rochester Trust Co. v. White, 243 Pa. 469, 90 A. 127 (1914).

That there was a resulting trust here which arose from the payment of the purchase price by the Sedelskys is not a matter of dispute and were the Sedelskys relying on that trust for their defense the learned court below would have been correct in holding that the Act of 1901, supra, applied. However, the trust was completely executed by the delivery of the unrecorded deed by Pastner to defendants before the plaintiff had become a creditor of Pastner, therefore the Act of 1901 has no application. That has been definitely decided by this Court in Beman Thomas Co. v. White, 269 Pa. 261, 112 A. 37 (1920), where the factual situation was exactly the same as here. There, as here, a resulting trust arose because title was taken in the name of Thomas but the purchase money was paid by the Thomas Corporation. Later but before a judgment was entered against Thomas, the title was conveyed but the deed not recorded until after the judgment was entered. The lower ...


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