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LIPSHUTZ v. PLAWA. (05/02/58)

May 2, 1958

LIPSHUTZ, APPELLANT,
v.
PLAWA.



Appeal, No. 259, Jan. T., 1957, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1938, No. 2132, in case of William Lipshutz, assignee, v. Anthony Plawa et al. Order reversed.

COUNSEL

Samuel Melnick, for appellant.

Herman H. Greenberg, for Paul P. Plawa and Florence Adams, appellees.

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

Author: Chidsey

[ 393 Pa. Page 269]

OPINION BY MR. JUSTICE CHIDSEY:

This is an appeal from a rule absolute, striking off a judgment entered against Paul P. Plawa and Florence Adams, as terre tenants on a sci. fa. to revive a judgment entered against Anthony Plawa and Viola Plawa, his wife, and Ignaci Krupienski and Frances, his wife, on March 31, 1938.

On November 2, 1927, the four original defendants executed a bond in the sum of $4,000, secured by a mortgage on a farm in Bucks County to Helen Binenstock. The mortgage was satisfied of record on January 15, 1929, and the farm was conveyed by the defendants on January 12, 1929. On March 31, 1938, judgment was entered on the bond, which remained outstanding, and was subsequently revived on March 25, 1943.

The records of the Recorder of Deeds of Philadelphia show a conveyance dated February 23, 1943, from

[ 393 Pa. Page 270]

Charles Miller and wife for premises 1306 W. Girard Avenue to Paul P. Plawa and one dated September 3, 1941 from Hyman Hoffman for premises 825 N. Marshall Street too Florence Adams. The conveyance to these respective grantees, Paul P. Plawa and Florence Adams, constituted the basis for the summons directed to them as terre tenants, and occasioned their petition for the rule to strike off. Defendant Anthony Plawa died intestate on April 5, 1945; and subsequently a sci. fa. to revive was filed naming Paul P. Plawa and Florence Adams as terre tenants. On January 24, 1947, judgment was entered on the sci. fa. to revive against all defendants and the terre tenants. The premises in question were subsequently conveyed to third parties.

Petitioners claim that the judgment against them should be stricken because the lien of judgment never attached to the premises, since title was never in the name of Anthony Plawa. Appellant argues that petitioners were terre tenants since they were fraudulent grantees of Anthony Plawa, although title never lodged in his name, because he furnished the money for the conveyance of the properties from the vendors to the petitioners. In effect, appellant claims that because Anthony Plawa furnished the consideration, the lien of judgment should be held to have attached to the properties, at least at the time of conveyance, because of the alleged fraud perpetrated by Anthony Plawa in taking title to the properties in the names of petitioners.

He further alleges that petitioners are estopped from denying that they are terre tenants because of a judgment in equity entered by default on the 11th day of April, 1956, for failure to file an answer within the required time ...


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