Opinion
November 20, 1935.
December 11, 1935.
Taxation — Liability — Registered owner — Mortgagee — Purchaser at sheriff sale — Application of Deficiency Judgment Act of July 1, 1935, P.L. 503 — Registered owner as dry trustee.
1. The Deficiency Judgment Act of July 1, 1935, P.L. 503, has no effect on, or application to, the right of the city and school district to collect, by action in assumpsit, the taxes due them, respectively, by the registered owner of the land at the time the taxes were assessed, nor the right of the purchaser of the real estate at sheriff's sale, on foreclosure of his mortgage, to be subrogated to their rights on payment by him of the taxes due them by the owner.
2. Deficiency Judgment Act of July 1, 1935, P.L. 503, held not involved where taxes in question were assessed, and were subsequently paid by plaintiff, prior to the effective date of the Act.
3. Pennsylvania Company v. Verlenden, 119 Pa. Super. 398, followed.
4. The fact that defendant was not the real owner of the property, but was merely holding it under a dry trust for the benefit of a third party, is not a valid defense to an action brought by the city or school district to recover for taxes assessed while the defendant was a registered owner; nor to such an action by a purchaser of the real estate at sheriff sale, on foreclosure of his mortgage, who pays the taxes and is subrogated to the rights of the city and school district.
Appeal, No. 380, Oct. T., 1935, by defendant, from judgment of M.C., Phila. Co., July T., 1935, No. 1007, in case of The Preston Retreat v. Hannibal E. Potter.
Before KELLER, P.J., BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Assumpsit.
The facts are stated in the opinion of the Superior Court.
Rule for judgment for want of a sufficient affidavit of defense made absolute, opinion by GABLE, J. Defendant appealed.
Error assigned was action of court in making absolute the rule for judgment.
H.E. Potter, with him Frank A. Moorshead, William H. Doerr, Jr. and Philip C. Herr, for appellant.
Philip Price, Robert V. Massey, Jr. and Barnes, Biddle Myers, for appellee, were not heard.
Argued November 20, 1935.
The plaintiff brought this action of assumpsit to recover money paid by it for real estate taxes for the year 1930, assessed against premises 5318-20 Columbia Avenue, Philadelphia.
At the time the taxes were assessed the defendant was the registered owner of the premises. The plaintiff was the holder of mortgages secured upon said premises, and following default thereunder, entered judgments upon the bonds accompanying the mortgages and bought in the property at sheriff's sale for $50, taking a deed therefor from the sheriff on September 22, 1930. Thereafter, on April 28, 1931, the plaintiff paid the taxes for the year 1930, in the sum of $318.47, and later brought this action against the defendant to recover the same with interest.
Two defenses were set up by the defendant in his affidavit of defense, both of which were held by the court below to be insufficient to prevent judgment:
1. That he was not the real owner of the property, but was merely holding it under a dry trust for the benefit of a third party.
Under the decision of the Supreme Court in Penna. Company v. Bergson, 307 Pa. 44, 159 A. 32, this would not be a valid defense to an action brought by the City or School District to recover for taxes assessed while the defendant was registered owner; nor to such an action by this plaintiff, who is subrogated to their rights.
2. That the Deficiency Judgment Act of July 1, 1935, P.L. 503, is a bar to the plaintiff's action.
The present action, although brought on August 1, 1935, was to recover for taxes assessed for the year 1930, paid by the plaintiff on April 28, 1931. The right of the plaintiff to recover for the taxes so paid accrued at the time of payment and is not affected by the Deficiency Judgment Act of 1935, supra. We discussed the matter in the case of Penna. Company v. Verlenden, 119 Pa. Super. 398, 181 A. 603. While that case was concerned with the Act of January 17, 1934, Special Session 1933-34, P.L. 243, the distinction is not important. For the reasons set forth in the Verlenden opinion the second ground of defense is insufficient.
Judgment affirmed.