McKeesport v. Sharp

31 A.2d 914, 151 Pa. Super. 49, 1942 Pa. Super. LEXIS 108

• Court: Superior Court of Pennsylvania
• Decided: May 7, 1942
• Docket: Appeal, 19
• Status: Published

Opinion

Per Curiam,

At the oral argument of this appeal it was assumed that Israel Rosenbloom became the owner of the land affected by the above municipal lien for taxes on March 28, 1934, the date his deed from John A. Sharp was recorded in the Recorder’s office of Allegheny County, in Deed Book, Vol. 2498, p. 382. The argument of the appellee was largely based on the assumption that he was a terre tenant, who became the owner of the land after the lien of the claim for the 1927 taxes had attached, — but it had been lost by the inaction of the city — whose substantive rights could not be affected by the Curative Act of April 29, 1941, P. L. 29.

But on closer examination of the record we find that Rosenbloom, in his petition filed November 25, 1941, averred under oath, made the same day, that he “became the owner” of the piece of ground described in the tax claim “on the 16th day of June, 1926, by deed thereafter duly recorded on the 28th day of March, 1934”.

There is no presumption, whatever, that a deed .is delivered on the date of its recording. We know that deeds are frequently recorded some time after the date of their delivery. Our Supreme Court has said that the presumption, in the absence of proof to the contrary, is that a deed was executed and delivered on the day it was acknowledged. Wolford v. Rimbey, 318 Pa. 353, 178 A. 498. There is no proof or allegation in this record as to when the deed from Sharp to Rosenbloom was acknowledged; but in any event such a presumption would give way to,. Rosenbloom’s sworn averment to tbe contrary. And his later averment in bis affidavit of defense, filed February 4, 1942, that be became tbe owner on March 28, 1934, would not clear up tbe matter. Tbe stipulation of counsel of December 15, 1941 (filed January 16, 1942) that tbe case should be submitted “as though all tbe factual averments in tbe petition of Israel Rosenbloom are admitted to be true”, would not be overcome by tbe averment in bis affidavit of defense filed February 4, 1942.

If Rosenbloom became tbe owner of tbe premises on June 16, 1926, be was tbe real owner of tbe land when the taxes for 1927 were assessed and levied, and bad bis deed been placed on record then be would have been named as owner and defendant in tbe tax claim.

If be was tbe real owner of tbe land when tbe taxes for 1927, were assessed and levied, be was not a terre tenant within tbe meaning of our statutes and decisions, for be did not acquire ownership of tbe land after tbe tax for 1927 was assessed and levied and the claim for said tax was filed. Tbe recording of bis deed nearly eight years later would not make him a purchaser of tbe land as of that date, and tbe subsequent proceedings would not have tbe effect of making him liable for a tax claim entered against land belonging to another which be bad purchased after tbe lien of tbe tax claim bad attached, but was subsequently lost through inaction; but would rather be in tbe nature of an attempt to make tbe real owner of tbe property, who was justly liable for tbe payment of tbe tax when assessed and levied, and also when tbe tax claim was filed and became a lien, responsible for its payment.

In appellant’s attempt to. hurry up tbe disposition of tbe case, this important question of fact was overlooked.

We are of opinion, therefore, that a re-argument of tbe case should be bad, in order that tbe deed from Sharp to Rosenhloom may be made a part of the record, and that testimony may be taken if necessary, — in which event the case will be returned for that purpose to the court below — to explain the long delay between the date of the deed and its acknowledgment, if that date should be at or about the date of its recording, in the light of the sworn averment in Rosenbloom’s petition — so that it may be accurately determined just when he became the owner of said premises. The record will be remitted to the court below, on the petition of either party, for the purpose of taking testimony.

Re-argument ordered.