Opinion
December 16, 1932.
March 3, 1933.
Real estate — Purchaser at sheriff's sale — Person in possession — Petition to obtain possession — Answer — Sufficiency — Act of April 20, 1905. P.L. 239.
In a proceeding under the Act of April 20, 1905, P.L. 239, to obtain possession of real estate purchased at a sheriff's sale, it was alleged in the petition that the property had been subject to a mortgage, that a judgment was entered on the bond accompanying the mortgage, that the land was sold by the sheriff and that the plaintiff purchased it and received from the sheriff a deed poll. The defendants, who were the persons in possession of the real estate, filed an answer in which they set forth that they had leased the premises from a former owner and that they had an equitable ownership in the land. They did not state the terms of their lease or attach a copy of it. They averred that they did not have a copy of the lease and that they had not been able to obtain one. There was no allegation as to the effort made to obtain a copy of the lease or that they were willing to execute with the petitioner a lease for the balance of the term upon the terms or conditions of their present tenancy.
In such case the answer filed was deficient, and contained no valid defense, and the order of the court below entering judgment for the petitioner will be affirmed.
Appeal No. 372, October T., 1932, by Lillian C. Lutes and Elinor Seney Lutes from order and decree of C.P., No. 2, Philadelphia County, March T., 1932 No. 10,194, in the case of East Penn Realty Company, assignee of Integrity Mortgage Guaranty Company, assignee of Charles K. Haddon, assignee of Seaboard Bond and Mortgage Company v. John S. Van Osten.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Petition to obtain possession of real estate. Before STERN, J.
Rule for judgment for want of a sufficient answer.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rules and entered judgment for possession. Lillian C. Lutes and Elinor Seney Lutes appealed.
Error assigned, among others, was the decree of the court.
David R. Griffith, Jr., and with him Evelyn Latta Lutes, for appellants.
Wayne P. Rambo, and with him Robert Mair and Ormond Rambo, for appellees.
Argued December 16, 1932.
This appeal arises out of proceedings to obtain possession of real estate bought by the plaintiff at sheriff's sale. The petition presented to the court inter alia recites the entry of judgment on a bond accompanying a mortgage, the issuing of a fi. fa., the purchase of the property describing it by metes and bounds, a deed poll from the sheriff to the purchaser, and a demand for possession and the refusal of the tenants to yield it. A rule was entered on the persons in possession to show cause why delivery of the property so purchased should not be made. The answer of the two tenants, one of them speaking for both, alleges that on June 4, 1923, a date preceding the entry of the mortgage under which by virtue of the judgment entered on the accompanying bond the land was sold, they leased the premises from the then owner, naming her, and that said lease had an automatic renewal clause, and that since January 1925 they had an equitable ownership in said premises antedating the mortgage, that they were unable to set forth a copy of the lease for they never had one, neither have they been able to obtain one.
The attempt to recover possession of the property was under the Act of April 20, 1905, P.L. 239, and in section five of the said act (12 P.S. 2576) there is set out what the respondent or intervenor to the rule provided for by the act is required to state in his answer if he claims to be a tenant for years. The section reads as follows: "If such respondent or intervenor shall aver a right as tenant for years, paramount as to the possession to the right of petitioner, he shall set forth, particularly, when his terms commenced, how long it was to last, what the rent is, and where and how it is to be paid; and he shall attach a copy of the lease, if there be one in his possession or obtainable by him; and he shall also tender a willingness to execute with petitioner a lease for the balance of the term of letting, upon the terms and conditions of his then present tenancy, and such tender shall be made though the prior lease was verbal only, or a copy thereof, if in writing, is not obtainable."
Judge STERN of the lower court very properly held that the answer was deficient, and contained no valid defense. It will be noticed that the answer gives no statement as to the attempts made to secure a copy of the lease, it fails to set forth any of the conditions or provisions of the lease and the duration of the term thereof; what the "automatic renewal" was, is left entirely to inference. Judge STERN states: "The answer also avers that the respondents in January, 1925, `acquired an equitable ownership in said premises,' but there is not a word as to the nature of such equitable ownership, nor how it came into being, nor what rights it conferred upon the respondents. Not only, therefore, does the answer fail in all respects to comply with section five of the Act of 1905 above referred to, but it is so lacking in any presentation of a substantive defense that it seems to have been filed for the mere object of delay." We may add that the tenants have expressed no "willingness to execute with petitioner a lease for balance of the term of letting upon the terms or conditions of his [their] then present tenancy," as provided in the above quoted section. If the tenants had a valid defense they should have disclosed it. As none appears in the answer filed, the judgment of the lower court must be affirmed.
Judgment affirmed. Appellants to pay the costs.