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BRENNAN v. ENNIS (06/22/71)

decided: June 22, 1971.

BRENNAN
v.
ENNIS, APPELLANT



Appeal from order of Court of Common Pleas of Bucks County, March T., 1969, No. 68, in case of John J. Brennan and Catherine E. Brennan v. Gordon J. Ennis and Anna S. Ennis, his wife.

COUNSEL

J. Leon Rabben, for appellant.

C. David Krewson, with him Stuckert, Yates & Krewson, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Dissenting Opinion by Jacobs, J. Montgomery, J., joins in this dissenting opinion.

Author: Spaulding

[ 219 Pa. Super. Page 292]

Appellant Dr. Gordon J. Ennis appeals from the August 27, 1970 order of the Court of Common Pleas of

[ 219 Pa. Super. Page 293]

Bucks County, denying his petition to strike a judgment entered by warrant of attorney against his late wife, Anna S. Ennis, after her death.

The warrant of attorney appeared in a 1960 bond accompanying a mortgage on property held by appellant and Anna S. Ennis as tenants by the entireties. The obligation on the bond by its terms bound the obligors and "their heirs, executors and administrators, jointly and severally". The mortgage and bond were held by John and Catherine Brennan, appellees.

Anna S. Ennis died on November 24, 1966. No estate was opened for her and no personal representative appointed. On March 4, 1969, after default on the mortgage, judgment was entered under the warrant in the sum of $22,174.98 with costs of $22.50. Pursuant to Philadelphia Local Rule 3129(f)(1) and (2) (formerly Rules 910a and 910b), notice of entry of judgment and forthcoming execution was sent by certified mail, addressed to both appellant and Anna S. Ennis. A return receipt signed by appellant shows delivery on March 25, 1969. On April 11, 1969, the mortgaged property was sold at sheriff's sale. A sheriff's return, filed May 28, 1969, shows the purchase price of $25,500.00, and a deed to the purchasers was filed June 3, 1969. The net return from the sale, $22,842.81, was $332.17 less than the amount required for satisfaction of the judgment.

On July 1, 1969, appellant filed a petition to strike the judgment only against Anna S. Ennis. Since all her interest in the mortgaged realty terminated with her death, striking the judgment against her would result only in removing her liability under the deficiency judgment lien for $332.17.

Appellant does not contest the underlying obligation on the bond, the entry of judgment against himself, or the conveyance of the property at sheriff's sale. His sole ...


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