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CSS CORPORATION v. SHERIFF CHESTER COUNTY AND BRANDYWINE SAVINGS AND LOAN ASSOCIATION. APPEAL BRANDYWINE SAVINGS AND LOAN ASSOCIATION. BRANDYWINE SAVINGS AND LOAN ASSOCIATION (04/14/86)

filed: April 14, 1986.

CSS CORPORATION
v.
SHERIFF OF CHESTER COUNTY AND BRANDYWINE SAVINGS AND LOAN ASSOCIATION. APPEAL OF BRANDYWINE SAVINGS AND LOAN ASSOCIATION. BRANDYWINE SAVINGS AND LOAN ASSOCIATION, APPELLANT, V. SHERIFF OF CHESTER COUNTY AND CSS CORPORATION



Appeal from the Order entered March 22, 1985 in the Court of Common Pleas of Chester County, Civil Division, at Nos. 139, 149 Equity Term, 1983.

COUNSEL

Glenvar E. Harman, Downingtown, for appellant.

Jerry L. Johnson, West Chester, for appellees.

Wickersham, Beck and Hoffman, JJ.

Author: Hoffman

[ 352 Pa. Super. Page 257]

This is an appeal from the order of the court below directing the Sheriff of Chester County to issue a deed to certain disputed property to appellee. Appellant contends that the lower court erred in finding that appellee, rather than appellant, holds the title to the property. We agree and, accordingly, reverse the order of the lower court and remand for further proceedings.

The facts of this case are not in issue.*fn1 On August 21, 1979, appellant, the Brandywine Savings and Loan Association, entered into a purchase money mortgage agreement with Frederick T. Holl, Jr., on certain lots, including lots 18, 20, and 24, of a subdivision in the Township of Sadsbury in Chester County, Pennsylvania. The mortgage was recorded on August 30, 1979. On August 21, 1979, appellee, CSS Corporation, also granted Holl a mortgage on lots 18, 20, and 24. That mortgage was not recorded until September 5, 1979. Under the statute regulating priority of liens,

[ 352 Pa. Super. Page 258]

    appellee's mortgage lien was subordinate to that of appellant. See 42 Pa.C.S.A. ยง 8141.*fn2 On August 13, 1981, appellant granted Holl a construction mortgage on lot 24 and recorded it on August 26. At the same time, appellee agreed to subordinate its lien on lot 24 to that of the construction mortgage.

On April 27, 1983, appellant began foreclosure proceedings against Holl on both the purchase money and construction mortgages. Both actions were reduced to judgment, and appellant instituted execution proceedings through the Office of the Sheriff of Chester County. See Pa.R.Civ.P. 3180-83. On July 15, 1983, the properties subject to either judgment were offered for sale by the Sheriff. Lots 18, 20, and 24, the subjects of the purchase money mortgage, were offered as sale Number 28. Lot 24, the subject of the construction mortgage, was offered as sale Number 31. When Number 28 was announced, appellant "passed," requesting that the sale be delayed until a later time.*fn3 When Number 31 was called, appellant announced that the property for sale, lot 24, was subject to the prior lien of appellant's purchase money mortgage on lots 18, 20, and 24.*fn4 Both appellant and appellee bid upon the property, with appellant placing the higher bid. After sale Number 31 was concluded, sale Number 28 was reannounced, and appellee successfully bid on that sale.

Each party then filed an action in equity seeking to enjoin the Sheriff from delivering a deed to lot 24 to the other.

[ 352 Pa. Super. Page 259]

The lower court granted a stay prohibiting the Sheriff from issuing such a deed pending disposition of the proceedings below.*fn5 On June 22, 1984, the lower court filed an opinion and order, finding that appellee was the "rightful legal owner" of the property and directing the Sheriff to execute and deliver a deed accordingly. Appellant filed ...


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