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DEVINEY v. LYNCH (02/09/53)

February 9, 1953

DEVINEY
v.
LYNCH, APPELLANT



Appeal, No. 84, Jan. T., 1953, from order of Court of Common Pleas of Delaware County, June T., 1951, No. 1703, in case of Thomas F. Deviney, Aloysius M. Carr and William C. A. Henry, as Trustees under Will of Stephen J. Deviney, Deceased, v. Frank J. Lynch, Jr., and Daniel Joseph Harty, trading as Penn House, Bryn Mawr. Order reversed.

COUNSEL

Harry Norman Ball, with him Lindenmuth & Class, for appellants.

Albert E. Holl, Jr., with him Holl, Taylor & Holl, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.

Author: Jones

[ 372 Pa. Page 571]

OPINION BY MR. JUSTICE JONES

This is an appeal from the refusal of the court below to open a confessed judgment and let the defendant into a defense.

In the Fall of 1947, Frank J. Lynch, Jr., the appellant, and one Daniel J. Harty, as partners doing a hotel business under the firm name of Penn House, purchased from Stephen J. Deviney the premises at 594-596 Lancaster Avenue, Bryn Mawr, Pennsylvania, known as the Penn House, for the price of $65,000. They

[ 372 Pa. Page 572]

    paid $30,000 in cash on account of the purchase price and gave Deviney their bond dated November 7, 1947, obligating them to pay the balance of $35,000 in ten years from date with interest at the rate of four per cent per annum, payable semi-annually, secured by their purchase money mortgage of the property. Lynch bought out Harty's interest in February of 1948. Deviney, the mortgagee, died February 16, 1949. By his will, duly probated and of record in the Register's office of Philadelphia County, he appointed his son, Thomas F. Deviney, A. M. Carr and William C. A. Henry as his executors and trustees. By assignment dated July 2, 1951, and recorded in the Recorder's office of Delaware County, the executors assigned the mortgage to themselves as Deviney's trustees, the present plaintiffs.

On September 6, 1951, the trustees confessed judgment on the bond for a default consisting of the defendants' failure to exhibit receipts for the taxes due on the mortgaged property for the year 1950. The plaintiffs forthwith issued a writ of execution on the judgment and levied on the mortgaged property which was thereupon advertised for sheriff's sale. By December 1951 all taxes due on the property had been paid; and, since then, all taxes coming due have likewise been paid. No default in the payment of interest on the mortgage has ever been alleged; and, by the terms of the mortgage, the principal thereof was not due until 1957. The sheriff's sale had been postponed from time to time until May 23, 1952.

With the sheriff's sale thus impending, Lynch, on May 21st, paid to Henry the sum of $3202.37 for which Henry, as "Co-Tr. Est. S. J. Deviney, Dec'd.", gave Lynch a receipt identifying the payment as being $2500 ...


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