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THOMAS R. GRAHAM AND LAURA A. GRAHAM v. PAUL C. LYONS AND HELEN M. LYONS (07/22/88)

filed: July 22, 1988.

THOMAS R. GRAHAM AND LAURA A. GRAHAM, HUSBAND AND WIFE, APPELLEES,
v.
PAUL C. LYONS AND HELEN M. LYONS, HIS WIFE AND WILLIAM H. LYONS AND PAUL G. LYONS II AND LYNN C. LYONS AND SAMUEL H. LYONS THEIR HEIRS PERSONAL REPRESENTATIVES, AND SUCCESSORS AND ASSIGNS GENERALLY, APPELLANTS



Appeal from the Order entered August 13, 1987 in the Court of Common Pleas of Warren County, Civil Division, at No. 635 of 1986.

COUNSEL

Burton L. Fish, Erie, for appellants.

Rowley, Del Sole and Montgomery, JJ.

Author: Del Sole

[ 377 Pa. Super. Page 6]

In this appeal we are asked to determine whether the trial court erred in failing to address the application of the Pennsylvania Recording Act to the facts in this quiet title action. On July 9, 1987 the trial court filed an opinion and order in favor of Plaintiffs-Appellees which granted Appellants' 30 days in which to take post-trial action. See: Pa.R.Civ.P., Rule 1066, 42 Pa.C.S.A. Within this time period a motion was filed containing the issue Appellants now seek to have reviewed on appeal, and a timely notice of appeal was filed.

The property in question which was used as a hunting camp was conveyed by Mr. and Mrs. Roscoe Mitchell to Appellees on January 6, 1971. The deed evidencing this conveyance was subsequently recorded. The trial court found that Mr. and Mrs. Mitchell's interest in the property was acquired on June 24, 1952 when Paul C. Lyons executed a deed to the property in return for a payment of $100.00. This deed was never recorded and was "lost" at the time of trial.*fn1

Appellants, who claim to be the rightful owners of the property in question, contend that the trial court erred when it failed to take into account the fact that Mr. and Mrs. Lyons had conveyed the subject property to William C.

[ 377 Pa. Super. Page 7]

Lyons, Paul H. Lyons II, Lynn G. Lyons and Samuel H. Lyons on October 28, 1968, the deed to which was recorded the next day. Appellants maintain that the Pennsylvania Recording Act protects their title since the conveyance was set down in writing and was recorded prior to the transfer of the property to Appellees. See: 21 P.S. ยง 351.

The argument advanced by Appellants must be dismissed since it is based on the faulty premise that the subject property was transferred in the 1968 conveyance. The deed conveying property from Mr. and Mrs. Lyons to their sons contains the following reservation:

ALSO, EXCEPTING AND RESERVING five (5) campsites sold by Paul C. Lyons and Helen M. Lyons, his wife, to third parties totaling approximately eight (8) acres, more or less.

A title abstractor who testified at trial performed a title search and indicated that during his examination he discovered four recorded deeds transferring four different campsites. N.T. 6/11/86 at 66. None of the four deeds consisted of a transferred campsite from Mr. and Mrs. Lyons to Mr. and Mrs. Mitchell. The trial court concluded that the unrecorded "lost" deed executed in 1952 to Mr. and Mrs. Mitchell was the fifth campsite which was "excepted and reserved" in the conveyance from Mr. and Mrs. Lyons to their sons. Although this conveyance was not recorded, the recording of a deed is not essential to its validity or to the transition of title. Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858 (1961). The title to real estate may be passed by delivery of a deed without undertaking a recording since the recording is essential only to protect by constructive notice any subsequent purchasers, mortgagees and new judgment creditors. Matter of Pentrack's Estate, 486 Pa. 237, 405 A.2d 879 (1979); Malamed v. Sedelsky, 367 Pa. 353, 80 A.2d 853 (1951). The ...


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