Philadelphia v. Merritt , 29 Pa. Super. 433 ( 1904 )

Opinion by

Porter, J.,

The claim of the city for the general taxes assessed and levied for the year 1893 against a lot accurately described in the claim was duly filed on the first day of October, 1894. An affidavit of notice to “ T. Ellwood Potts, Trustee,” to pay the claim, in the form prescribed by the Act'of March 23, 1866, P. L. 303, relating to municipal claims, having been filed, a Scire facias was issued upon this tax claim on April 6,1898, and was served personally on T. Ellwood Potts, trustee, the registered owner, and the sheriff further returned “ made known by posting and advertising and nihil habet as to William C. Merritt.” Judgment for want of an appearance was entered on June 22, 1898. A suggestion that William Marker was the then actual registered owner was, on March 31,1903, filed of record. A scire facias to revive and continue the lien issued on April 12, 1903, and after two returns of nihil habet, as to all the defendants including Marker, a judgment was entered in this proceeding on July 7, 1903. William H. Marker, the appellant, presented his petition on January 3, 1905, setting forth that he was the present registered and actual owner of the lot, having purchased the same on July 11,1902, and praying that the judgment be opened and he let into a defense, upon the ground of certain irregularities in the proceedings. The court granted a rule to show cause why the judgment should not be opened, which it subsequently discharged. Marker appeals from the order of the court, discharging his rule to open the judgment.

The parties filed, in the court below, a written agreement as to the facts, which disclosed that Merritt had been the real and registered owner in 1893 when the taxes were assessed. In December of that year he executed a deed of voluntary assignment for the benefit of creditors, conveying the property to T. Ellwood Potts, trustee, which deed was registered on December 13, 1893, and upon the same day duly recorded, and from that day until February 10,1902, “ T. Ellwood Potts, Trustee,” was the registered owner of the property. The appellant derives his title from the purchaser to whom the sheriff executed a deed dated February 10,1902, executed in pursuance of a sale on the third day of the same month under a proceeding upon an old mortgage, executed by Rhinehart, from whom Merritt had derived title. The facts agreed upon make it clear that this claim is for the general rates and levies for the year 1893, which had been lawfully imposed, and that they never have been paid. The appellant complains that William C. Merritt was not served with notice to pay the claim, in accordance with the Act of March 23, 1866, P. L. 303. The answer to this is that that statute does not apply to registered taxes, the general taxes and levies : Philadelphia v. Scott, 72 Pa. 92. His other complaint is that the original scire facias was not personally served upon Merritt. Merritt was not the registered owner, and it was not necessary that there should be a personal service upon him is the answer to this- allegation of a defense : Philadelphia v. Peyton, 25 Pa. Superior Ct. 350; Wistar v. Philadelphia, 86 Pa. 215; Soullier v. Kern, 69 Pa. 16 ; Delaney v. Gault, 30 Pa. 63. The application to open this judgment was addressed to the discretion of the court below, and in the absence of any allegation of a defense upon the merits, we are not satisfied that the learned judge of the court below abused that discretion in discharging the rule of the petitioner : Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203. The city having complied with the provisions of the Acts of March 14, 1865, P. L. 320 and March 29, 1867, P. L. 600, by causing the original writ of scire facias to be personally served upon the registered owner, in the manner required in case of a summons, was not bound to inquire whether Such registered owner had a good title : Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203 ; Baines v. Alker, 207 Pa. 234. We do not say that it would not be sufficient for the city to serve the actual owner, when he is a person other than the one registered; it is, however, well settled that service upon the registered owner is all that the statutes require.

The order of the court below is affirmed.