C. Everett, Inc. v. Ayres

349 A.2d 514, 22 Pa. Commw. 422, 1975 Pa. Commw. LEXIS 1349
CourtCommonwealth Court of Pennsylvania
DecidedDecember 23, 1975
DocketAppeal, No. 1014 C.D. 1974
StatusPublished
Cited by17 cases

This text of 349 A.2d 514 (C. Everett, Inc. v. Ayres) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C. Everett, Inc. v. Ayres, 349 A.2d 514, 22 Pa. Commw. 422, 1975 Pa. Commw. LEXIS 1349 (Pa. Ct. App. 1975).

Opinions

Opinion by

Judge Blatt,

This is an appeal from the final judgment of the Court of Common Pleas of Delaware County in an action brought by C. Everett, Inc. (Everett) the plaintiff below, to quiet title to property acquired at a tax sale.

[424]*424The events giving rise to the action can be summarized briefly. On June 1, 1966 Henry Whitley, Jr. and Claria Whitley, his wife, acquired title by deed as tenants by the entireties to the subject property which is known as 907 Lincoln Terrace, Chester, Pennsylvania. The Whitleys executed a mortgage to the Colonial Mortgage Service Co. (Colonial) and had both the deed and the mortgage recorded on June 28, 1966. On about May 1, 1967 Delaware County taxes charged to the property for 1966 and listed under the name of “Henry Whitley, Jr., et ux” were returned by the tax collector to the County Commissioners as delinquent and unpaid in the amount of $55.56. The return was then certified to the County Treasurer for collection or for securing payment by sale of the property. Before the tax sale was conducted, the mortgage holder, Colonial, commenced an action in mortgage foreclosure against the Whitleys, as a result of which, judgment was entered against the Whitleys on April 28, 1969 in the amount of $13,584.68. On October 28, 1968, however, the property was sold at the tax sale to Everett, the plaintiff, for $110.00. Execution of the April 28, 1969 judgment took place on June 13, 1969 by means of a sheriff’s sale of the property to the United States Department of Housing and Urban Development, which in turn conveyed the property to Lawrence Ayres and Jannie L. Ayres, two of the defendants in this action. They in turn mortgaged the property to the Federal National Mortgage Association, also a defendant herein. Finally Everett, who took apparent title to the property at the tax sale, filed this quiet title action to obtain possession and to establish its title as superior to that held by the defendants. By way of counterclaim the defendants asserted that they held the superior title. After a trial on the merits the court below invalidated the tax sale and the resulting deed to Everett and upheld the defendants’ claim to superior title to the property as against the plaintiff Everett. This appeal followed.

[425]*425Judge Orlowsky, of the court below, invalidated the deed held by Everett, finding that the Whitleys had not been given proper notice of the tax sale through either personal service, any posting of the premises which may have taken place, or public advertisement. See Curtis Building Co., Inc. v. Tunstall, Pa. , 843 A.2d 389 (1975).

It is clear, of course, that “notice provisions of the tax sale statute must be strictly complied with in order to guard against the deprivation of property without due process of the law.” Chester County Tax Claim Bureau Appeal, 208 Pa. Superior Ct. 384, 387, 222 A.2d 602, 604 (1966); accord, Tax Claim Bureau of Montgomery County v. Wheatcroft, 2 Pa. Commonwealth Ct. 408, 412, 278 A.2d 172, 175 (1971). The applicable notice provisions are found in Section 7 of the Act of May 29, 1931, P. L. 280, as amended, 72 P. S. §5971 (g). These require that the County Treasurer shall advertise the sale in two newspapers of general circulation, such advertisement to include among other things “[a] list of the seated lands affected and their location, and the owner or reputed owner of each.” (Emphasis added.) In addition to advertisement the statute provides that the County Treasurer shall serve written notice upon the owner of such land and where such notice cannot be so served by mail it shall be served by posting the same in the courthouse and at a conspicuous place on the premises.

All reasonable deductions from the evidence presented to Judge Orlowsky would indicate that the advertised notice, service by mail, and posting of the premises identified the owner as: “Henry Whitley, Jr., et ux.”1 The property, of course, was owned by Henry Whitley and his wife, Claria Whitley as tenants by the entireties and the issue, therefore, is whether or not the above identifi[426]*426cation was sufficient notice to the “owner.” We agree with the court below that it was not.

This Court has ruled that a single notice served upon a husband and wife owning property by the entireties sufficiently identifies the owner when addressed in the names of both husband and wife, as “John W. and Jean G. Schmid.” Wheatcroft v. Schmid, supra. By the same token we have ruled that such notice does not sufficiently identify the owner of property held by the entireties when addressed only in the name of the husband, as “Harry M. Tillman.” Price-Jeffries Co., Inc. v. Tillman, 11 Pa. Commonwealth Ct. 153, 312 A.2d 494 (1973). “Et ux,” as used in this case after the husband’s name, represents obviously an abbreviation for “et uxor” which means “and wife,” and the term is commonly used in abstracts and indexes to indicate that a wife has joined with her husband in conveyances. See Black’s Law Dictionary, 653 (rev. 4th ed. 1968). While, however, the use of such a term may capture the attention of the legal community and indicate that a wife is a party to a transaction involving the conveyance of property, we do not believe that its use meets the notice of requirements of due process which are designed to protect the interests not only of the parties but, of the public at large. When an individual’s property rights are at stake, due process requires that he or she be identified with clarity and without disguise so that those rights may be asserted and the owners may fully protect his or her interest in the property concerned.

The plaintiff argues here that, before the tax sale can be invalidated, it must be shown not only that the notice was improper under the statute but also that the owner was in fact without knowledge of the sale before it took place. Everett finds support for this proposition in certain lower court decisions, but a well considered review of authority suggests that the proposition as Everett states it is in fact misstated. Our reading of authority [427]*427indicates that where a property owner has had full and timely knowledge of all steps taken prior to the tax sale and could not have been said to have been misled to his detriment he cannot thereafter complain about omission in the notice of the sale which was given to him. See Hess v. Westerwick, 366 Pa. 90, 76 A.2d 745 (1950); See also Aronauer Appeal, 404 Pa. 654, 171 A.2d 765 (1961). Here, however, the Whitleys did not testify at all and there is no indication in the record by anyone who did testify that the Whitleys were aware that their property was listed for tax sale.

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Bluebook (online)
349 A.2d 514, 22 Pa. Commw. 422, 1975 Pa. Commw. LEXIS 1349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-everett-inc-v-ayres-pacommwct-1975.