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SMILEY v. KADAR ET UX. (12/14/60)

December 14, 1960

SMILEY
v.
KADAR ET UX., APPELLANTS.



Appeal, No. 145, April T., 1960, from order of Court of Common Pleas of Fayette County, Dec. T., 1955, No. 324, in case of Laura A. Smiley, now for the use of J. R. Smiley, v. George Kadar, Jr. et ux. Order reversed.

COUNSEL

Gregg H. Lewellyn, with him Wade K. Newell, for appellants.

Samuel J. Feigus, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Watkins, and Montgomery, JJ. (ervin, J., absent).

Author: Montgomery

[ 194 Pa. Super. Page 283]

OPINION BY MONTGOMERY, J.

This appeal is from the refusal of appellants' petition to open a judgment entered against them by confession.

[ 194 Pa. Super. Page 284]

The petition recited that:

(a) Laura Smiley held a judgment lien for $4,961.31 against all real estate owned by E.B. Provance at 293 December Term, 1952.

(b) Appellants purchased from E.B. Provance on or about September 16, 1955, a tract of real estate and timber thereon represented by Provance to contain 330 acres in area for $4,000.00 payable $1,000.00 in cash and a judgment note for $3,000.00 payable to Provance.

(c) Quoting from appellee's brief since the record was not printed in this case, "That after a title examination revealed the original plaintiff's judgment lien, it was arranged by all the parties that in consideration of her release of said judgment lien against the premises being sold, the appellants would execute and deliver said Three Thousand ($3,000.00) Dollar note to said Laura A. Smiley, due and payable in three (3) years from date thereof;" (Emphasis added)

(d) After taking possession of the premises conveyed as aforesaid, appellants discovered that there was a deficiency of 83.4942 acres in area representing two-thirds of the timber, said deficiency ...


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