Appeal, No. 226, Jan. T., 1951, from judgment of Court of Common Pleas of Clearfield County, Aug. T., 1950, No. 419, in case of Harold J. Boulton, Harry Boulton and Richard M. Hess v. John William Starck, William D. Hill and Gilbert Hill, Sr. Judgment reversed.
Clarence R. Kramer, with him Pentz and Silberblatt, for appellants.
Robert I. Reed and Robert V. Maine, with them Smith, Maine, Whitsett & Lee, for appellees.
Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
This is an appeal from a judgment for the plaintiffs on the pleadings in an action to quiet title.
The plaintiffs averred possession of two contiguous tracts of coal in Morris Township, Clearfield County, under deeds from the County Treasurer in 1945. In August, 1947, they leased certain of the coal to the Pennsylvania Coal & Coke Company. In April, 1950, defendants claiming title under a sheriff's deed prior in date (July 6, 1931) gave notice of their claim of ownership to plaintiffs' lessee, whereupon plaintiffs filed a complaint in an action to quiet title by which they sought a decree of title in their favor. To the complaint an answer was filed setting up new matter, then followed a reply to new matter, amendment to new matter by leave of court, reply to the amended new matter, a motion by the plaintiffs for judgment on the pleadings, a second amendment to new matter and a reply thereto and finally separate motions by plaintiffs and defendants for judgment on the pleadings.
The learned court below refused defendants' motion but granted plaintiffs judgment on the pleadings and decreed title in them from which decree defendants appealed.
From the abstracts of title annexed to the complaint and to the new matter we learn the common source of title to the two parcels of coal in question is the Victor Coal & Coke Co., in whose name the property in dispute prior to 1942 was assessed. Tracing chronologically the respective claims of title from that
source, it appears that defendants' claim of title is based on a sheriff's deed (dated July 6, 1931) to Rachel Wilkinson, pursuant to a sheriff sale to her of the coal in question (this sale being on tax liens filed to 183 May Term 1930 for the years of 1928 and 1929 returned unpaid).
The validity of this tax sale title is challenged in the plaintiffs' reply on the ground that the certification of the liens were not properly executed in compliance with the Act of May 16, 1923, P.L. 207, 53 P.S. 2021 et seq., and hence invalid. As against which the defendant argues that the sheriff sale being a judicial sale confirmed by the court cannot be collaterally attacked. With this the learned court below agreed citing City of Phila. v. Lotter, 32 D. & C. 169 (1938); Randal v. Gould, 225 Pa. 42, 73 A. 986 (1909); Hoff v. Allegheny County, 343 Pa. 569, 23 A.2d 338 (1941); Dauberman v. Hain, 196 Pa. 435, 46 A. 442 (1900). However, the lower court further held that assuming the sheriff's sale to be valid, the appropriation of the proceeds therefrom being insufficient to pay the accrued taxes for the years of 1930 and 1931, the liens therefor were not divested (Sec. 31 of Act of 1923, 53 P.S. 2051). Hence a valid sale on such ...