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LOWENBURG v. BARR (10/12/71)

decided: October 12, 1971.

LOWENBURG
v.
BARR, APPELLANT



Appeals from decrees of Court of Common Pleas of Montgomery County, Nos. 65-4567 of 1965 and 67-202 of 1967, in case of Joan A. Lowenburg v. Gladys E. Barr.

COUNSEL

Roland J. Christy, for appellant.

Edward Fackenthal, for appellee.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Pomeroy

[ 444 Pa. Page 401]

In this appeal appellant, the grantor of certain real estate, contends that she should not be required to execute a deed, pursuant to a specific performance decree previously granted by the lower court and affirmed by our Court, unless she receives interest on the purchase price from the appellee-purchaser. The lower court, holding in abeyance the question of interest, decreed that the specific performance previously ordered be effected forthwith.

Briefly, the facts are as follows: In December of 1958 the parties*fn1 executed an agreement of sale relative

[ 444 Pa. Page 402]

    to the premises in question. Pursuant to the terms of the agreement, the buyers made a down payment and took occupancy of the first floor of the premises. The vendors, under the agreed terms, were permitted to retain occupancy of the upper floors of the building at a monthly rental of fifty dollars a month for so long as they wished, final settlement for the purchase to take place within sixty days after the vendors vacated.

Aside from the down payment ($2,200), the purchasers were not obligated to pay any part of the purchase price until the time of final settlement. They were, however, responsible for the upkeep of the entire house, although the sellers were to pay their own gas and electricity bills. The buyers remodeled the first floor at a cost of about $5,000 and the parties appear to have abided by the agreement without difficulty until 1964.

In late 1964 the sellers alleged that the buyers had defaulted on their obligation by failing to pay real estate taxes and a fuel bill totaling $571.38. Litigation ensued which resulted in a specific performance decree in favor of the buyers. We affirmed the decree, per curiam, without opinion on October 9, 1969. 435 Pa. 637.*fn2

Following our decision, the buyers petitioned the lower court for an order enforcing the specific performance decree, which order was granted on January 2, 1970. The order included a direction to seller's counsel to account for the rental proceeds which had accrued during the period of litigation. It appears that the rentals were to be ...


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