decided: March 15, 1968.
Appeal from decree of Court of Common Pleas of Philadelphia County, March T., 1967, No. 5969, in case of Millie Harris, also known as Millie B. Harris v. Joe Harris, First Pennsylvania Banking & Trust Co., Adal Corp. et al.
Herbert H. Hadra, with him Robert H. Arronson and Maurice Freedman, for appellant.
Michael F. Walsh, with him Leonard Spear, and Meranze, Katz, Spear and Bielitsky, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.
[ 428 Pa. Page 473]
This is an appeal from the decree of the court below sustaining appellee's (Nitram, Inc.) preliminary objections in the nature of a demurrer to appellant's cause of action in equity.
The record discloses the following pertinent facts: On March 5, 1965, First Pennsylvania Banking & Trust
[ 428 Pa. Page 474]
Co. confessed judgment against appellant and her hushand on a judgment note apparently signed by the parties and dated September 15, 1963. Damages were assessed and judgment was then entered in favor of First Pennsylvania in the amount of $168.08. The judgment was subsequently marked to the use of Adal Corp. Execution proceedings were then commenced against the premises in question, which premises were owned by appellant and her husband as tenants by the entireties.
Appellee purchased the premises at sheriff's sale. Immediately upon learning that the premises had been sold,*fn1 appellant filed a petition and a rule to show cause why the judgment should not be opened, alleging that her signature on the judgment note was a forgery. The rule to show cause was made absolute.
Thereafter, appellant instituted the present action in equity seeking to set aside the sheriff's sale and to compel appellee to account for all money received from the use of the premises. Appellee filed preliminary objections to the complaint alleging that the complaint failed to state a cause of action. The court below sustained the preliminary objections and this appeal followed.
We are required to determine whether an execution sale on a judgment procured as a result of a forged signature on a judgment note passes good title to property sold thereunder to a bona fide purchaser for value. Whether title will pass at an execution sale depends upon the validity of the underlying judgment. If the execution sale was based upon a voidable judgment, a bona fide purchaser will be protected against actions
[ 428 Pa. Page 475]
seeking to recover the purchased property. On the other hand, where a void judgment is the basis for an execution sale, one who purchases property will not acquire title even if a bona fide purchaser for value. See 33 C.J.S., Execution §§ 6, 230, 299a (1942); Restatement, Judgments § 115, comment j (1942) and Pennsylvania Annotations; 3 and 4 American Law of Property §§ 13.1, 18.60 (1952).
We are therefore confronted with the narrow issue of whether a judgment which has been procured by a forged signature on a judgment note is void or voidable. The court below, in sustaining appellee's preliminary objections, concluded that a judgment based on a forged instrument is merely voidable and consequently will not hamper the passage of good title to one considered a bona fide purchaser for value. We disagree. The cases are legion, at least with respect to negotiable instruments, that a forged, fraudulent and spurious instrument is not binding on any person and is wholly inoperative to transfer any title or right to property whether the holder is an innocent or guilty purchaser.*fn2 Johnson v. First National Bank of Beaver Falls, 367 Pa. 459, 81 A.2d 95 (1951); Lindsley v. First National Bank of Philadelphia, 325 Pa. 393, 190 A. 876 (1937); Real Estate Land Title & Trust Co. v. United Security Trust Co., 303 Pa. 273, 154 A. 593 (1931). For cases in other jurisdictions see U. S. v. Lemons, 67 F. Supp. 985 (1946); Larsh v. Green Gold Farms, Inc., 214 N.E. 2d 924 (1966); Kolmar, Inc. v. Moore, 323 Ill. App. 323, 55 N.E. 2d 524 (1944).
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By way of analogy to this body of law, it seems equally clear that a judgment entered on a forged judgment note is likewise completely null and void. See Off-Record Risks for Bona Fide Purchasers of Interests in Real Property, 72 Dick. L. Rev. 35 (1967). Since an execution sale based upon a void judgment is itself void, title will not pass to any purchaser, innocent or otherwise. 30 Am. Jur. 2d, Execution § 10 (1967), and cases cited therein. If appellant is capable of demonstrating that her signature on the judgment note was the product of a forgery, she could not be divested of title with respect to her interest in the subject premises. For these reasons, we are of the opinion that appellant's complaint avers sufficient facts which, if proven, would entitle her to relief in equity against appellee and that the court below improvidently sustained appellee's preliminary objections in the nature of a demurrer.
Decree reversed and case remanded.