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PHILADELPHIA v. MILLER ET AL. (11/13/56)

November 13, 1956

PHILADELPHIA
v.
MILLER ET AL., APPELLANTS.



Appeal, No. 224, Oct. T., 1956, from decree of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1950, No. 2367, in case of City of Philadelphia v. Alfred Miller and Benjamin Drob. Petition to remand dismissed; decree affirmed.

COUNSEL

Herbert M. Linsenberg, with him Jerome L. Markovitz, for appellants.

Levy Anderson, First Deputy City Solicitor, with him David Berger, City Solicitor, for appellee.

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

Author: Ervin

[ 182 Pa. Super. Page 241]

OPINION BY ERVIN, J.

This is an appeal by Alfred Miller and Benjamin Drob from an order of Court of Common Pleas No. 3 of Philadelphia County discharging a rule to show cause why a judgment for city real estate taxes should not be opened.

The matter was disposed of by the lower court on petition, answer and reply. The facts, which were not in dispute, may be summarized as follows: On February 4, 1952 the sheriff sold premises 4108 Pearce Street, Philadelphia, at a second sale for 1947 taxes for the sum of $300.00. The property had previously been listed for sale on June 4, 1951 but the sale was postponed because the upset price of $1,960.00 had not been bid. The judgment on which it was sold had been entered against Joseph L. Dear and John A. Dear, the registered owners of the property since 1923. On March 17, 1951 the Dears conveyed the property to one Charles Bliss, who conveyed it to Alfred Miller, one of the appellants herein, on October 5, 1951. Pursuant to the second sale, the sheriff acknowledged a deed to the purchaser, the Kirshbaum Investment Corporation, on February 25, 1952. On July 17, 1952 Miller filed a petition to redeem the premises pursuant to § 32 of the Act of May 16, 1923, P.L. 207, 53 PS § 2052. Before an order granting Miller's right of redemption was entered, Kirshbaum Investment Corporation conveyed the premises to Miller by deed dated January 22, 1953. On January 23, 1953 Miller conveyed the premises to Drob, the other appellant herein. Thereafter, it having come to the attention of the city that the property had been conveyed by the purchaser at the sheriff's sale to the owner at the time of the sale, the city reasserted its claim for 1949 taxes in the amount of $32.25, which had not been paid out of the proceeds of the sale. On

[ 182 Pa. Super. Page 242]

July 22, 1953 the city issued a writ of sci. fa and on September 8, 1953 entered judgment against Miller and the Kirshbaum Investment Corporation.

The property was again listed for sheriff's sale on the first Monday of October, 1953. On October 2 Drob filed a petition to stay the sale and asked leave to intervene and open the judgment. The city filed an answer to the petition and the appellant filed a reply to new matter. On January 3, 1956 the lower court discharged the rule to open the judgment and this appeal followed.

The appellants petitioned this Court to remand the record for the taking of testimony. The appellants' position now is "that the property was not redeemed, either in fact or as a matter of law, but that Miller merely took title to the property as a bona fide purchaser for value within the redemption period, and therefore that the legal consequences which flow from the exercise of the owner's equity of redemption are not applicable in this case." The city filed an answer to the petition for remand in which it set forth the appellants' admissions of the redemption in the pleadings. No less than five times Benjamin Drob, the real party in interest, averred and admitted that Alfred Miller, the registered owner of the premises at the time of the sale, redeemed the property upon payment of the redemption price, in accordance with the act of assembly in such case so made and provided. The lower court decided this matter in reliance upon Drob's sworn admissions of a redemption. We will not permit the appellants at this ...


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