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HUGHES v. CHAPLIN. (05/27/57)

May 27, 1957

HUGHES, APPELLANT,
v.
CHAPLIN.



Appeal, No. 90, March T., 1957, from decree of Court of Common Pleas of Cambria County, June T., 1952, No. 731, in case of Albertine M. Hughes v. A. V. Chaplin, Floyd O'Shall, et al., trading as Comfort Run Coal Company, a partnership. Judgment affirmed.

COUNSEL

Edward F. Peduzzi, with him Myers, Taylor & Peduzzi, for appellant.

P. D. Larimer, with him Englehart, Larimer & Englehart and Whitsett & Lee, for appellee.

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

Author: Arnold

[ 389 Pa. Page 94]

OPINION BY MR. JUSTICE ARNOLD

In this action of trespass plaintiff seeks damages for defendants' removal of coal allegedly owned by her. She now appeals from an order of the court below refusing her motion to take off compulsory non-suit entered after the close of her testimony.

The record establishes that certain coal lands were sold to the county commissioners at treasurer's sale in 1930, the coal having been assessed as "W. W. McEwen Estate, mineral S. Walker, 500 acres." The court having overruled defendants' objections thereto, this deed was admitted in evidence; and plaintiff then sought to establish the regularity of the proceedings. It was shown that the records established only one advertisement of the treasurer's sale in one newspaper, whereas the act required advertisement for three weeks in two newspapers. The records failed to disclose that notice of sale had been served on the owner or terre tenant as required.

In addition, plaintiff's evidence established that the petition, by which the commissioners obtained an order to sell at private sale in 1943, averred that only 65

[ 389 Pa. Page 95]

    acres of the W. W. McEwen coal was being sold; and that in 1951, the commissioners filed a petition to correct the earlier deed to permit transfer on the record of the entire 500 acres. As to this petition it was admitted that it had not been advertised nor had notice been given to taxing authorities or the public, as required.

The evidence also disclosed that of some 4100 properties advertised for sale, the records indicated that notices had been sent only to 738 owners or terre tenants.

As declared in Beacon v. Robinson, 157 Pa. Superior Ct. 515, 521, 43 A.2d 640, "... a prima facie presumption of the regularity of the acts of public officers exists until the contrary appears. Such a presumption is a procedural expedient: Watkins v. Prudential Insurance Co., 315 Pa. 497, 173 A. 644. In tax sales it is particularly suitable." Thus plaintiff had made out a prima facie case to sustain her title by producing the county ...


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