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C. EVERETT v. LAWRENCE AYRES AND JANNIE L. AYRES (12/23/75)

decided: December 23, 1975.

C. EVERETT, INC., APPELLANT
v.
LAWRENCE AYRES AND JANNIE L. AYRES, HIS WIFE, AND FEDERAL NATIONAL MORTGAGE ASSOCIATION, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of C. Everett, Inc. v. Lawrence Ayres, Jannie L. Ayres, and Federal National Mortgage Association, No. 12686 of 1971.

COUNSEL

Alfred O. Breining, Jr., for appellant.

James C. Buckley, with him Robert E. Cherwony, and Gibbons, Buckley & Smith, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Dissenting Opinion by President Judge Bowman.

Author: Blatt

[ 22 Pa. Commw. Page 423]

This is an appeal from the final judgment of the Court of Common Pleas of Delaware County in an action brought by C. Everett, Inc. (Everett) the plaintiff below, to quiet title to property acquired at a tax sale.

[ 22 Pa. Commw. Page 424]

The events giving rise to the action can be summarized briefly. On June 1, 1966 Henry Whitley, Jr. and Claria Whitley, his wife, acquired title by deed as tenants by the entireties to the subject property which is known as 907 Lincoln Terrace, Chester, Pennsylvania. The Whitleys executed a mortgage to the Colonial Mortgage Service Co. (Colonial) and had both the deed and the mortgage recorded on June 28, 1966. On about May 1, 1967 Delaware County taxes charged to the property for 1966 and listed under the name of "Henry Whitley, Jr., et ux" were returned by the tax collector to the County Commissioners as delinquent and unpaid in the amount of $55.56. The return was then certified to the County Treasurer for collection or for securing payment by sale of the property. Before the tax sale was conducted, the mortgage holder, Colonial, commenced an action in mortgage foreclosure against the Whitleys, as a result of which, judgment was entered against the Whitleys on April 28, 1969 in the amount of $13,534.63. On October 28, 1968, however, the property was sold at the tax sale to Everett, the plaintiff, for $110.00. Execution of the April 28, 1969 judgment took place on June 13, 1969 by means of a sheriff's sale of the property to the United States Department of Housing and Urban Development, which in turn conveyed the property to Lawrence Ayres and Jannie L. Ayres, two of the defendants in this action. They in turn mortgaged the property to the Federal National Mortgage Association, also a defendant herein. Finally Everett, who took apparent title to the property at the tax sale, filed this quiet title action to obtain possession and to establish its title as superior to that held by the defendants. By way of counterclaim the defendants asserted that they held the superior title. After a trial on the merits the court below invalidated the tax sale and the resulting deed to Everett and upheld the defendants' claim to superior title to the property as against the plaintiff Everett. This appeal followed.

[ 22 Pa. Commw. Page 425]

Judge Orlowsky, of the court below, invalidated the deed held by Everett, finding that the Whitleys had not been given proper notice of the tax sale through either personal service, any posting of the premises which may have taken place, or public advertisement. See Curtis Building Co., Inc. v. Tunstall, Pa. , 343 A.2d 389 (1975).

It is clear, of course, that "notice provisions of the tax sale statute must be strictly complied with in order to guard against the deprivation of property without due process of the law." Chester County Tax Claim Bureau Appeal, 208 Pa. Superior Ct. 384, 387, 222 A.2d 602, 604 (1966); accord, Tax Claim Bureau of Montgomery County v. Wheatcroft, 2 Pa. Commonwealth Ct. 408, 412, 278 A.2d 172, 175 (1971). The applicable notice provisions are found in Section 7 of the Act of May 29, 1931, P.L. 280, as amended, 72 P.S. ยง 5971(g). These require that the County Treasurer shall advertise the sale in two newspapers of general circulation, such advertisement to include among other things "[a] list of the seated lands affected and their location, and the owner or reputed owner of each." (Emphasis added.) In addition to advertisement the statute provides that the County Treasurer shall serve written notice upon the owner of such land and where such notice cannot be so served by mail it shall be served by posting the same in the courthouse and at a conspicuous place on the premises.

All reasonable deductions from the evidence presented to Judge Orlowsky would indicate that the advertised notice, service by mail, and posting of the premises identified the owner as: "Henry Whitley, Jr., et ux."*fn1 The property, of course, was owned by Henry Whitley and his wife, Claria Whitley as tenants by ...


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