Coraopolis Home Building & Loan Ass'n v. McCabe

27 A.2d 493, 149 Pa. Super. 313, 1942 Pa. Super. LEXIS 372

• Court: Superior Court of Pennsylvania
• Decided: April 30, 1942
• Docket: Appeal, 164
• Status: Published

Opinion

Opinion by

Keller, P. J.,

The judgment of the court below is affirmed on the opinion of Judge Richardson.

The case of McDonald Borough v. Davidson et al., 128 Pa. Superior Ct. 38, 193 A. 472, relied upon by appellant’s counsel in their oral argument, though not contained in their printed brief, is distinguished from the present case in that the improvement claim of the borough in that case had never become a record lien when the validating Act of June 2, 1933, P. L. 1429, was passed. The claim had not been filed in the pro-thonotary’s office within six months after the completion of the work, nor had it been so filed when the Act of 1933, supra, was passed, and therefore it had never been a lien of record. That act authorized, inter alia, in such ease, the filing of a municipal claim within twelve months after the approval of the act, where the improvement ivas then completed and no lien had theretofore been filed for the same, and provided that the lien of such claim so filed “shall date from the completion of the improvement for which the assessment is made, ...... and shall remain a lien until fully paid and satisfied.” This had the effect of giving the lien of the claim when filed in the prothonotary’s office the same position as to priority as it would have had if filed within six months after the completion of the work, and hence gave it priority over a mortgage of record when the improvement was made; and its lien was not disturbed by a sheriff’s sale on the bond accompanying the mortgage, for an amount equal only to the costs, leaving nothing for distribution. But, if, after it had become a lien of record, with priority over liens in existence Avhen the improvement was begun, the borough, by its inaction or neglect, had failed to keep the lien in force and effect by a scire facias issued within five years thereafter, as provided by law, it would have lost its priority, and while a subsequent validating act would revive the lien on the property in the hands of the original owner, — but not as against a bona fide purchaser, who acquired the property after the lien was lost — it would not restore its priority as respects intervening lien creditors, nor as respects a mortgage, whose priority of lien had attached during the interim before validation; which is this case.

Judgment affirmed.