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LEVINE v. HORWITZ (03/23/53)

March 23, 1953

LEVINE, APPELLANT,
v.
HORWITZ



Appeal, No. 221, Jan T., 1952, from order of Court of Common Pleas No. 2. of Philadelphia County, Dec. T., 1951, No. 2649, in case of Abe Levine et ux. v. Alfred Horwitz. Order affirmed.

COUNSEL

C. L. Cushmore, Jr., with him White, Williams & Scott, for appellants.

Frank A. Simons, for appellee.

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

Author: Arnold

[ 373 Pa. Page 278]

OPINION BY MR. JUSTICE ARNOLD

The plaintiff-lessors confessed against the defendant a judgment for accelerated rent. On defendant's petition the court struck if off on the ground that the demised premises had been condemned by the United States of America prior to the confession.

The plaintiffs leased to the defendant the premises at 429 Walnut Street, Philadelphia, for a period of five years beginning the first day of November, 1950. The

[ 373 Pa. Page 279]

    lease contained the following clause: "In the event that the premises demised... is taken or condemned for a public... use, this lease shall, as to the part so taken, terminate as of the date title shall vest in the condemnor..."

On March 1, 1951, approximately four months after the letting, the United States filed a declaration of taking of the premises demised, and thereupon paid in an estimated compensation of $40,000 as compensation to the owners.*fn1 This condemnation was had under the Act of Congress of February 26, 1931, 46 Stat. 1421, 40 U.S.C.A., ยง 258a, reading, inter alia: "Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute... shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States... The court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner." (Italics supplied).

Unquestionably "upon the filing said declaration of taking and of the deposit [of the estimated compensation]... Title to the said lands in fee simple absolute... [would] vest in the United States of America." Since the subject matter of the lease was condemned, paragraph 22 of the lease came into operation, i.e., ...


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