Gelston v. Donnon

Citations

• 44 Pa. Super. 280
• 1910 Pa. Super. LEXIS 166

Syllabus

<p>Mortgage — Amicable scire facias — Waiver of service — Confession of judgment — Judgment—Description of property — Affidavit of ownership.</p> <p>1. Where a praecipe for an amicable scire facias sur mortgage describes the mortgage by its date, the date when it was recorded, and the book and page of the mortgage book in which it was entered, and there is filed with the praecipe a waiver by the widow and administratrix of the mortgagor of service of the writ, and there is also filed a power to confess judgment, on which judgment is entered, and the land is sold under a levari facias which fully described the land, the judgment cannot be attacked as against the land because no scire facias actually issued, and no description of the land was filed in the case. Wilson v. McCullough, 19 Pa. 77, distinguished.</p> <p>2. An omission to file an affidavit of ownership with a prsecipe for a scire facias sur mortgage, as provided by the Act of July 9, 1901, P. L. 614, as amended by the Act of April 23, 1903, P. L. 261, does not render a judgment entered in the case invalid as against the land. The effect of the omission is that the heirs may make any available defense against the purchaser of the land at sheriff’s sale, that they might have set up on the trial of the scire facias in case they had been made parties to that proceeding in the manner prescribed by the act.</p> <p>3. Where the widow and administratrix of a mortgagor confesses judgment to an amicable scire facias sur mortgage, a purchaser after a sheriff’s sale in the proceedings is not affected by any misrepresentations that the administratrix had made in her application for letters of administration as to the decedent leaving no children, in the absence of evidence that the purchaser was in some way a party to the representations and knew this to be untrue.</p>