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ELMORE v. PHILADELPHIA (11/16/55)

November 16, 1955

ELMORE
v.
PHILADELPHIA, APPELLANT.



Appeal, No. 124, October T., 1955, from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1951, No. 4301, in case of E. Emily Spear Elmore v. City of Philadelphia. Order affirmed.

COUNSEL

Karl I. Schofield, Assistant City Solicitor, with him Herbert M. Linsenberg, Assistant City Solicitor, Jerome J. Shestack, First Deputy City Solicitor, and Abraham L. Freedman, City Solicitor, for appellant.

Eugene F. Mande, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 179 Pa. Super. Page 535]

OPINION BY WRIGHT, J.

E. Emily Spear Elmore filed a petition for a declaratory judgment that a certain personal property tax lien entered by the City of Philadelphia was not an encumbrance upon petitioner's real estate. The City filed preliminary objections in the nature of a demurrer. The lower court dismissed the preliminary objections and ordered that the lien in question was

[ 179 Pa. Super. Page 536]

"not entitled to priority". This appeal by the City followed.

The facts are not disputed. On August 12, 1924, two mortgages were given on premises situate at 1907 and at 1909 South 12th Street, Philadelphia. On September 19, 1928, one Katherine C. Aikens became the owner of these properties. On June 27, 1934, both mortgages were assigned to appellee. Thereafter, on January 26, 1949, a personal property tax lien was entered against Katherine C. Aikens in the amount of $351.90, representing unpaid personal property taxes and penalties for the years 1931 through 1935. Appellee subsequently instituted foreclosure proceedings and, on July 18, 1949, received deeds from the sheriff. In each case the bid at the sheriff's sale was not sufficient to cover the amount of the mortgage debt and costs.

Limiting the question involved to the particular factual situation here presented, it may be stated as follows: Does the Act of July 3, 1947, P.L. 1249, preserve the lien of personal property taxes from divestiture by a sheriff's sale on foreclosure of a mortgage recorded prior to the passage of the act.

The statute under consideration amends the Act of 1913, P.L. 507,*fn1 the pertinent portion of the amendment (72 PS 4881) reading as follows: "All taxes imposed under this act, together with penalties and interest thereon, shall be a lien on the real estate of the taxpayer within the county, until paid, after the same shall have been entered and docketed of record by the prothonotary. All such liens shall have priority to, ...


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