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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)

SUPERIOR COURT OF PENNSYLVANIA


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. § 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 exceptions to that order which were dismissed on March 22, 1985. This appeal followed.

Appellant contends that the lower court erred in finding that appellee holds the title to lot 24. We agree. A sheriff's sale is made without warranty; the purchaser takes all the risk, and the rule of caveat emptor applies in all its force. See Taylor v. Bailey, 323 Pa. 278, 284, 185 A. 699, 702 (1936); Smith v. Painter, 5 Serg. & Rawle 223, 224 (1819). The purchaser at such a sale receives all the right, title, and interest in the property that the judgment debtor held, see Bangor Park Association Case, 370 Pa. 442, 446, 88 A.2d 769, 772 (1952); Taylor v. Bailey, supra at 284, 185 A. at 702; 13 Standard Pa. Practice 2d § 73:45 (1983); 22 id. § 121:102 (1984), and the rights of the purchaser become fixed when the property is knocked down*fn6 to the highest bidder. See Bradley v. Price, 17 D. & C.2d 368, 372 (1952), aff'd, 396 Pa. 234, 152 A.2d 904 (1959); 22 Standard Pa. Practice 2d § 121:103. If the debtor had no rights in the property at the time of the sheriff's sale, however, no title passes to the purchaser. See Bangor Park Association Case, supra, 370 Pa. at 446, 88 A.2d at 772; DiCarlo v. Licini, 156 Pa. Superior Ct. 363, 367, 40 A.2d 127, 129-30 (1944).

[ 352 Pa. Super. Page 260]

In the instant case, appellant purchased all of Holl's legal interest in lot 24 when it successfully bid upon sale Number 31. Thus, appellant received title to lot 24 subject to the prior lien of the purchase money mortgage. When sale Number 28 was called at the conclusion of Number 31, Holl's rights in lot 24 had passed to appellant, and he no longer held any title to that property. Therefore, although appellee successfully bid upon the lots offered for sale at Number 28, it could not receive title to lot 24. Accordingly, we reverse the order of the court below and remand for further proceedings.

Order reversed; case remanded for proceedings consistent with this opinion; jurisdiction is not retained.

Disposition

Order reversed; case remanded for proceedings consistent with this opinion; jurisdiction is not retained.


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