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HOFFMAN LUMBER CO. v. MITCHELL (01/17/52)

January 17, 1952

HOFFMAN LUMBER CO.
v.
MITCHELL



COUNSEL

Alexander J. Bielski, McKeesport, for appellant.

John L. Miller and Duff, Scott & Smith, all of Pittsburgh, for appellee.

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

Author: Rhodes

[ 170 Pa. Super. Page 326]

RHODES, President Judge.

The question presented on this appeal is whether the Deficiency Judgment Act of July 16, 1941, P.L. 400, 12 P.S. § 2621.1 et seq., applies to a sheriff's sale of real property on a judgment obtained on a mechanic's lien where the real property is bid in by the lienor for an amount less than the lien.

[ 170 Pa. Super. Page 327]

The facts are not in dispute and the question is entirely a legal one. In the court below the action was in assumpsit to recover for building material furnished in the erection of three houses on lots Nos. 11, 41, and 47 in a development in Upper St. Clair Township, Allegheny County. The three claims were for $662.39, $1,197.86, and $602.53, respectively, or a total of $2,462.78, with interest from January 1, 1943.

As a defense to these claims, defendant established that in the latter part of 1942 plaintiff filed mechanic's lien claims in the Court of Common Pleas of Allegheny County against the three lots in question; that a scire facias sur mechanic's lien was issued on each of the claims; that on the scire facias judgments were entered and the lots sold by the sheriff under writs of levari facias; that plaintiff bid in the three lots for taxes and costs; that plaintiff did not, within six months after delivery of the sheriff's deeds to plaintiff's nominee, petition to have the fair market value of the real property sold fixed in accordance with the provisions of the Deficiency Judgment Act of July 16, 1941, P.L. 400, 12 P.S. § 2621.1 et seq.

The present action of assumpsit was not begun until September 17, 1946, and it was initially against both J. Howard Mitchell and his wife, Priscilla B. Mitchell. It was admitted that, prior to the time plaintiff furnished the materials, September 5, 1941, J. Howard Mitchell conveyed the real property in question to his wife, Priscilla B. Mitchell. J. Howard Mitchell was, at all times prior to the foreclosures, the equitable and beneficial owner of the lots and his wife held the record title entirely for his benefit. Plaintiff suffered a voluntary non-suit as to wife-defendant.

The court below affirmed defendant's point for binding instructions as to the claims covering lots Nos. 11, 41, and 47, on the ground that the Deficiency Judgment

[ 170 Pa. Super. Page 328]

Act of 1941 applied, and plaintiff's failure to proceed under that Act precluded the present assumpsit action. Judgment was entered for plaintiff for certain other claims not in dispute. The court below refused plaintiff's motion for binding instructions for the sum of $2,462.78 as claimed, ...


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