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VERONICA MANCINE v. CONCORD-LIBERTY SAVINGS AND LOAN ASSOCIATION (04/30/82)

filed: April 30, 1982.

VERONICA MANCINE, APPELLANT,
v.
CONCORD-LIBERTY SAVINGS AND LOAN ASSOCIATION, SUCCESSOR TO HIBERNIAN SAVINGS AND LOAN ASSOCIATION (SUCCESSOR TO HIBERNIAN BUILDING AND LOAN ASSOCIATION)



No. 853 April Term, 1979, Appeal from the judgment of the Court of Common Pleas of Allegheny County, Civil Division, at GD 75-02451

COUNSEL

Charles E. McKissock, Pittsburgh, for appellant.

R. C. Reithmuller, Pittsburgh, for appellee.

Price, Brosky and Montgomery, JJ. Price, J., files a concurring opinion.

Author: Per Curiam

[ 299 Pa. Super. Page 263]

Appellant instituted an action by a complaint and an amended complaint in assumpsit against appellees for damages for the unlawful entry of judgment, for the wrongful malicious and fraudulent dispossession of appellant from her home, for loss of her belongings, for the rental value of her home, for the fair market value of her home, for the loss to appellant's reputation, and for exemplary and punitive damages. Preliminary objections of defendant were overruled.

The case proceeded to trial before court and jury. The judgment by confession against Rose Startari, a dead person was void. The court incorrectly held that a "confession of judgment upon a warrant of attorney after the death of the obligor makes the judgment voidable as between the obligor and obligee not void. The lower court erroneously applied the Act of 1705, 1 SmL. 57, Sec. 9, 12 P.S. 2448 and 21 P.S. 795. This Act is limited to voidable judgments, not void judgments.

Appellant filed a timely motion for a new trial and raised, inter alia, that the court erred in applying the aforesaid Act, refusing to allow appellant to prove her offer of proof of damages, and that the Act of 1705, supra., is inapplicable and unconstitutional. The court having denied appellant's motion for a new trial, an appeal was taken to this court.

We reverse.

On September 17, 1969, appellee confessed judgment in the amount of $3,824.22 at D.S.B. 4069 October 1969 against Rose Startari and on the same day, caused a writ of execution at # 577 October 1969, to issue and subsequently sold the property of Rose Startari for $1,699.52.

[ 299 Pa. Super. Page 145]

Rose Startari died November 13, 1966. Veronica Mancine, a daughter of Rose Startari, acquired the property from all her brothers and sisters by deed dated April 24, 1967, recorded April 25, 1967, Deed Book Volume 4387, Page 145.

Veronica Mancine was in possession of the premises at 5000 Ladora Street, 15th Ward, Pittsburgh, from sometime during her mother's lifetime until evicted by appellee following the sheriff sale.

[ 299 Pa. Super. Page 264]

The primary object of recording deeds as stated by the Supreme Court is "to give public notice in whom the title resides so that no one may be defrauded by deceptious appearances of title. Salter v. Reed, 15 Pa. 260.

Possession is always constructive notice of the claim of the party in possession. Jamison v. Dimock, 95 Pa. 52. Appellees knew or should have known or could have ascertained that appellant was both the record owner and in possession of the premises prior to and at the time judgment was entered against a dead person.

The judgment entered at DSB 4069 October 1979 on September 17, 1969 against Rose Startari was void. Ladner on Conveyancing, Sec. 12.14 ". . . nor can it be entered after death of the obligor, because the death automatically terminates the warrant of attorney to confess judgment."

Mr. Justice (later Chief Justice) Eagen held in the case of First Federal Savings and Loan Association of Green County v. Porter, 408 Pa. 236 at 241, 183 A.2d 318 (1962), the following:

[ 299 Pa. Super. Page 256]

Her demise automatically terminated the warrant of attorney to confess judgment: Lanning v. Pawson, 38 Pa. 480 (1861); Kummerle v. Cain, 82 Pa. Super. 528 (1924); Ladiner Conveyancing in Pennsylvania, Section 9.21, Page 256 (3d Ed. 1961).

Volume 22, Judgment -- Vales, Section 43. The death of a debtor revokes the warrant of attorney to confess judgment. Hence, a judgment entered on a warrant of attorney after the death of a debtor will be striken off. Lawrence v. Smith, 215 Pa. 534, 64 A. 776 (1900); Commonwealth v. Massi, 225 Pa. 548, 74 A. 419 (1909); Stucker v. Shumaker, 290 Pa. 348, 139 A. 114 (1927); Miller v. Reed, 27 Pa. 244 (1856); Lanning v. Pawson, 38 Pa. 480 (1861); Kountz v. National Transit Company, 197 Pa. 398, 47 A. 350 (1900); Stevenson v. Virtue, 13 Pa. Super. 103 (1900); Kummerle v. Cain, 82 Pa. Super. 528 (1924).

The Act of 1705, supra., limiting appellant's right to recovery to the amount paid by appellee at sheriff's sale is not applicable to void judgments.

[ 299 Pa. Super. Page 265]

The judgment under which the sale took place was void and the Act of 1705, supra., was not applicable. Clancey's v. Jones, 4 Yeates 212 (1805); Burd v. Dansdale, 2 Binn 80 (1809); Vastine v. Fury, 2 S&R 426 (1816); Speer v. Sample, 4 Watts 367 (1835); Camp v. Wood, 10 Watts 118 (1984); Bowen v. Bowen, 6 Watts & S. 504 (1843); Springer v. Brown, 9 Pa. 305 (1848); Wilson v. McCullough, 19 Pa. 77 (1852); Evans v. Meylert, 19 Pa. 402 (1852); Gibson v. Winslow, 38 Pa. 49 (1861); Kinter v. Jenks, 43 Pa. 445 (1863); Bartholomew's Church v. Wood, 61 Pa. 96 (1863); Hecker v. Haak, 88 Pa. 238 (1879); Caldwell v. Walters, 18 Pa. 79, 6 Harris 79 (1851).

The case of Caldwell v. Walters, 18 Pa. 79 (6 Harris 79) held

A void judgment is one that does not warrant the issuing of an execution; and in the opinion of this court, a sale under it by the sheriff is not protected by the provisions of the 9th section of the Act of 1705. A sheriff's sale of the land of a decedent on a judgment against an executor de son tort, passes no estate to the purchases: Ness [Nass] v. Van Swearingen [Vanswearingen], 7 S&R 196 [192].

The question whether appellant, an heir of decedent, Rose Startari, the mortgagor, can bring an action for wrongfully confessing judgment against a dead person, Rose Startari, and sell her real property at sheriff sale, has been raised by appellee.

The mortgage and bond were executed by Rose Startari, a widow, mother of appellant, on or about June 7, 1956, who was the then owner in fee of the property which is the subject matter of this litigation. The bond upon which judgment was confessed and the property sold reads, inter alia, "I the said Obligor [Rose Startari] do bind myself, my heirs, executors, administrators and assigns and every one of them, jointly and severally, firmly by these presents." Rose Startari having died intestate on October 13, 1966, survived by numerous children, all of whom (and their respective spouse) conveyed the property on October 13, 1966 to their sister, Veronica Mancine, daughter of Rose Startari, in fee

[ 299 Pa. Super. Page 266]

    at Deed Book Volume 4387, page 145. Appellant was in possession of said property until directed by appellee to vacate and deliver up the premises by virtue of a writ of possession.

As a direct result of the breach of the "bond agreement" between Rose Startari, her heirs and assigns, and the illegal and void judgment by confession, appellant instituted an action in assumpsit for damages for the fair value of her home wrongfully sold by appellee at sheriff's sale; for damages she incurred because she had to vacate her home; for causing her to give up her belongings and furnishings; for loss of income by way of having to pay room and board at her place of ...


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