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HAUGHEY v. DILLON (09/27/54)

September 27, 1954

HAUGHEY
v.
DILLON, APPELLANT.



Appeal, No. 310, Jan. T., 1953, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1952, No. 658, in case of John B. Haughey et ux. v. John J. Dillon. Judgment affirmed. Action to quiet title to real estate. Before CRUMLISH, J. Verdict for plaintiffs and judgment thereon. Defendant appealed.

COUNSEL

P. Nicholson Wood, with him Grover C. Ladner, Herbert G. Schick and Clark, Ladner, Fortenbaugh & Young, for appellant.

C. Russell Phillips, with him Lester S. Hecht and Montgomery, McCracken, Walker & Rhoads, for appellees.

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

Author: Arnold

[ 379 Pa. Page 2]

OPINION BY MR. JUSTICE ARNOLD

In this action to quiet title, tried by a jury, defendant appeals from the court's refusal of his motions for new trial and for judgment n.o.v. The appeal poses two questions: (1) Was the presumption of payment of a mortgage upon the premises rebutted as a matter

[ 379 Pa. Page 3]

    of law? (2) Does the assignee of a mortgage, by assignment subsequent to a tax sale of the mortgaged premises, have a right to redeem within the contemplation of Section 32 of the Act of 1923, P.L. 207, 53 PS ยง 2052?

As admitted in the pleadings and a stipulation of the parties, the facts are: On October 9, 1922, one Hayden, then owner of the three lots involved, executed three mortgages thereon, each in the sum of $4,000 and payable within three years. On the same day the mortgagee, Boylan, assigned the mortgages to the Market Street Title & Trust Company. Also on the same day Hayden conveyed the lots to Boylan, subject to the mortgages, and Boylan then executed three mortgages in the sum of $2,000 each to a Loan Association.

On September 14, 1925, Boylan entered into agreements postponing payment of the original mortgages for three years from that date. On September 23, 1926, the Loan Association entered judgment on the bonds accompanying its mortgages, caused a vend. ex. to issue thereon, and upon sale thereof on March 5, 1928, purchased the premises subject to the lien of the assigned original mortgages.

Thereafter, in 1931, the then assignee of the original mortgages issued scire facias sur mortgage, and on November 15, 1933, entered judgments thereon. On December 26, 1933, the Loan Association conveyed the premises to one McMurray, subject to the original mortgages, without consideration and solely to avoid future liability for real estate taxes. However, neither this deed of conveyance nor possession of the premises was ever delivered to McMurray. Nor did he know anything about it.

On February 5, 1951, the lots were sold to plaintiffs by the City of Philadelphia for unpaid taxes from 1933 to 1951, the ...


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