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CHARMWOOD (12/18/62)

December 18, 1962

CHARMWOOD, INC. APPEAL.


Appeal, No. 254, April T., 1962, from decree of Court of Common Pleas of Westmoreland County, Oct. T., 1961, No. 98, in case of Reed B. Coyle Co., Inc. v. Samuel J. DeLullo, also known as Samuel DeLullo et al. Decree affirmed; reargument refused January 11, 1963.

COUNSEL

Allen S. Gordon, with him Bernard S. Shire, for appellant.

John G. Koedel, for appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery and Flood, JJ. (woodside, J., absent).

Author: Flood

[ 200 Pa. Super. Page 141]

OPINION BY FLOOD, J.

This is an appeal from the refusal of the court below to set aside a sheriff's sale of real estate, title to which was held by two parties described as partners trading under a firm name, upon a judgment representing a firm debt, but entered against the two partners individually without mention of the partnership name.

[ 200 Pa. Super. Page 142]

On October 1, 1960, a tract of land in Franklin Township, Westmoreland County, consisting of eight lots was conveyed by deed, recorded the same day, to "Samuel DeLullo and Nick DeLullo, partners trading as DeLullo Bros. Construction Co." To obtain capital to build upon two of the lots the DeLullo brothers on February 27, 1961, borrowed $36,000 from the plaintiff and as security executed in its favor their bond secured by a mortgage on the two lots. The bond and mortgage were executed by Samuel J. DeLullo and Nick A. DeLullo without mention of the partnership name. On November 30, 1961, judgment was entered under the warrant contained in the bond in favor of the plaintiff against Samuel J. DeLullo, also known as Samuel DeLullo, and Nick A. DeLullo, also known as Nick DeLullo. Thereafter the sheriff levied upon the two properties upon which dwellings had been erected and at a sheriff's sale held January 2, 1962, they were purchased by the plaintiff for $1. The advertisement of the sheriff's sale described the property to be sold as the property of Samuel J. DeLullo, also known as Samuel DeLullo, and Nick A. DeLullo, also known as Nick DeLullo.

On November 9, 1961, prior to the entry fo the judgment, Charmwood, Inc., the appellant, had filed a mechanics' lien covering the two lots and the dwellings erected thereon against Samuel DeLullo and Nick ELullo, trading as DeLullo Bros. Construction Co. On January 12, 1962, Charmwood, Inc. filed a petition and rule to set aside the sheriff's sale held on January 2, 1962, upon the ground that the judgment under which the execution sale was held was not a judgment against the partnership in whose name the title stood. The court below discharged the rule because, while the property sold was partnership real estate, both partners had signed the bond and mortgage, and the mortgage described the property and recited the deed by

[ 200 Pa. Super. Page 143]

    which they obtained the property. The court also held that the appellant cannot be heard to say that it did not have notice of the mortgage because it knew that the partnership was composed solely of the two individuals.

Admittedly, the DeLullo brothers were engaged in the construction business as partners, the encumbered lots were partnership real estate and the bond and mortgage were given to secure a loan for the ...


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