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DAUPHIN DEPOSIT BANK & TRUST COMPANY v. HOWARD O. STOUFFER (03/06/81)

filed: March 6, 1981.

DAUPHIN DEPOSIT BANK & TRUST COMPANY
v.
HOWARD O. STOUFFER, INC. APPEAL OF CHARLES C. LOOSE & SON, INC., HIESTER GINGRICH, HARRY WEAVER



Nos. 558,559,560 & 561 October Term, 1979, Appeal from the order of the Court of Common Pleas, Civil Action - Law, of Lebanon County, at Nos. 1814, 1818, 1820 & 1822, 1978.

COUNSEL

Timothy D. Sheffey, Lebanon, for appellants.

A. Harry Ehrgood, Lebanon, for appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Cercone, President Judge, files a concurring opinion.

Author: Watkins

[ 285 Pa. Super. Page 107]

This is an appeal from the order of the Court of Common Pleas of Lebanon County, distributing the proceeds of Sheriff's sales or real estate in that county.

[ 285 Pa. Super. Page 108]

The facts in the instant case are that Dauphin Deposit Bank and Trust Company, the Execution Creditor, executed upon its judgments which were junior in lien to its construction mortgages. At the time announced for the sheriff's sale of the real estate which was subject to the execution and to the mortgages, the attorney representing the Execution Creditor and the Mortgagee announced that the sale would divest the construction mortgages. The sheriff, in announcing the conditions of sale, repeated that announcement. Present at the sale and at the time of the announcement were all of the mechanics lien creditors together with their counsel and they voiced no objection to the divestiture of the mortgage liens. In point of fact, one of the Exceptant Mechanic Lien Creditors through his counsel purchased Tract No. 4, 608 Meadow Drive, South Lebanon Township, Lebanon County, Pa., by bidding a price over and above the bid of the bank which had bid the amount of the mortgage debt and interest together with the costs and collection fee.

All of the Mechanics Lien Creditors were present at the sale and were free to bid to protect their interest. Only with respect to Tract No. 4 did one of those creditors so act. In each instance, the Execution Creditor bid a sufficient fund to cover the mortgage debt, interest, collection fee and costs.

The sole question on this appeal is whether the waiver of its right of preservation of its lien by the first mortgagee was effective and its lien discharged by the sales.

Section 8152 of the Judicial Code, 42 Pa.C.S. § 8152, is a reenactment of the Act of April 30, 1929, P.L. 874, 21 P.S. § 651. This Act, in turn was a re-enactment of the Act of 1901, May 8, P.L. 141 with various amendments and supplements, which in turn was a re-enactment of the Act of March 23, 1867, P.L. 43.

These Acts provide, in pertinent part:

"When the lien of a mortgage is or shall be prior to all other liens upon the same property . . . the lien of such mortgage shall not be destroyed or in ...


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