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CITY PITTSBURGH v. MELLA ET AL. (03/18/52)

March 18, 1952

CITY OF PITTSBURGH
v.
MELLA ET AL.



COUNSEL

Mark R. Craig, Pittsburgh, for appellants.

Harry C. Beschel, Sol. for City & School Tax Liens, Alvin J. Porsche and Joseph M. Tague, Asst. Sols., Pittsburgh, for appellee.

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

Author: Gunther

[ 170 Pa. Super. Page 473]

GUNTHER, Judge.

City of Pittsburgh, appellee, instituted this action in assumpsit to recover the purchase price ($650) of real estate sold under a written agreement to Charles P. Mella and Anna Mella, his wife, appellants. Appellants demurred to the complaint averring that the City's title acquired by a tax sale in 1900 was not good and marketable or free and clear of encumbrances. No testimony was taken; the facts were agreed upon.*fn1 The court below overruled the demurrer and entered judgment in favor of the City of Pittsburgh. This appeal followed.

In 1870 Reineman and Dickson laid out the Mellwood plan of lots in the City of Pittsburgh with lot No. 140 (a part of which is here involved) fronting 88 feet on Brereton Avenue and extending back 100 feet by even width and facing 88 feet along Oscar Alley. Oscar Alley eventually became Bigelow Boulevard. Both streets extend in an east-west direction. Lot No. 140 by various conveyances was eventually divided into four parcels of 22 feet by 100 feet, each held by different owners. The parcel involved in this proceeding, correctly designated by proportion and direction, is the 'easterly one-fourth of the westerly half of lot No. 140'. On October 27, 1900, a writ of lev. fa. was issued

[ 170 Pa. Super. Page 474]

    directing the Sheriff to sell the property of Joseph Carroll, the purported registered owner, for nonpayment of taxes. In due course, the Sheriff executed a deed to the City of Pittsburgh describing the property as follows: 'All that certain lot situate in the 13th Ward, City of Pittsburgh, County of Allegheny and Commonwealth of Pennsylvania, on the south side of Brereton Avenue fronting on said street 22 feet and running back 100 feet more or less to Oscar Alley (Now Bigelow Blvd.) bounded and described as follows: Lot 22/100 Brereton Ave., through to Oscar Alley, being the east one-half of Lot 140 in Reineman, Dickson et al plan'. (Italics supplied.) It is to be observed that the description of 'the east one-half of Lot 140' is defective; that the proper description is 'the easterly one-fourth of the westerly half of lot No. 140'.

The applicable law in the City of Pittsburgh at the time of the tax sale in question required that title to real estate be registered in a Deed Registry in the office of the City engineer pursuant to the Act of February 24, 1871, P.L. 126. The Deed Registry has since been abolished and the old records are not available. Thereafter, grantees of real estate offered their deeds to the Recorder of Deeds for recording. It is admitted by all parties that the property was assessed in the name of Joseph Carroll, which assessment would result had a deed been registered by him as grantee in the Deed Registry; that the tax lien as filed in the Prothonotary's office was filed against Joseph Carroll. The name of Joseph Carroll is not recorded in the Recorder of Deeds office; the last recorded owner is listed as Charles Meyran. In 1949, the City of Pittsburgh instituted a proceeding in the court below to perfect its tax title and to confirm the sale to the appellants in accordance with provisions of the Act of July 5, 1947, P.L. 1258, 53 P.S. ยง 10201.1 et seq. In that proceeding, 'Charles

[ 170 Pa. Super. Page 475]

Meyran, Joseph Carroll, their heirs, assigns, devisees or legal representatives' were brought upon the record and served by advertisement with a rule to show cause 'why the title of the City should not be adjudicated and decreed valid -- and to further show cause why the sale should not be made free any clear of their respective claim'. In due course, the rule was made absolute.

Appellants argue that the original tax sale was void because of failure to name the recorded owner or describe the land with sufficient accuracy. Appellants readily admit that 'If the deed registry records were still extant, and such records showed that Joseph Carroll was the registered owner of the property ...


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