Appeal, No. 3, May T., 1953, from judgment of Court of Common Pleas of Dauphin County, 1952, Equity Docket No. 2019, Commonwealth Docket No. 45, in case of Mary G. Smith v. Otto F. Messner, Secretary of Revenue. Judgment reversed.
Sydney S. Stern, with him Philip Sterling and Sterling, Stern & Levy, for appellant.
Edward Friedman, Deputy Attorney General, with him Robert E. Woodside, Attorney General, for appellee.
Stanley Folz and Sundheim, Folz, Kamsler & Goodis filed a brief for interested party, under Rule 46.
Before Stern, Stearne, Jones, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is a companion case to Sablosky v. Messner, decision in which was filed contemporaneously herewith: (See 372 Pa. 47, 92 A.2d 411). The appellant
in this case attacks the constitutionality of The Realty Transfer Tax Act of 1951 upon the same grounds pressed in the Sablosky case, all of which we held to be without merit. It is necessary, therefore, to consider only the additional contention of appellant here that agreements for the sale of real estate are not taxable documents within the intendment of the Act.
No facts are in dispute. On February 21, 1952 appellant entered into an agreement for the purchase of certain real estate for the aggregate consideration of $4,000 and paid to the sellers, one Edward Ludwig and wife, an initial deposit of $100 on account of the total purchase price. This agreement, executed after the effective date of the Act, was subject to the tax if agreements of sale are taxable thereunder. Appellant's bill in equity sought, inter alia, to restrain the Secretary of Revenue from imposing and collecting any tax thereon. This appeal is from final judgment dismissing the bill.
The Act defines "Document" as "Any deed, instrument or writing whereby any lands, tenements or hereditaments within this Commonwealth or any interest therein shall be granted, bargained, sold, or otherwise conveyed to the grantee, purchaser, or any other person,...". (Emphasis supplied). The learned chancellor and court en banc held that an agreement for the sale of real estate fell within the intendment of the Act because the term "Document" included "... lands, tenements or hereditaments... or any interest therein..." upon the theory that when a contract is made for the sale of land, equity considers the purchaser of the estate sold as acquiring an equitable interest therein. We are constrained ...