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HomeMy WebLinkAbout99-2549 CIVILJOHN W. LAWYER AND LINDA GAlL LAWYER, his wife, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WESTWOOD HILLS ASSOCIATES, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY, AND FINANCIAL TRUST COMPANY, A BANKING INSTITUTION AND MORTGAGEE, DEFENDANTS DELUXE DEVELOPMENT COMPANY, ADDITIONAL DEFENDANT 99-2549 CIVIL TERM IN RE: MOTIONS OF DEFENDANTS FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J., HESS, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., November 28, 2001:-- THE COMPLAINT On April 28, 1999, plaintiffs, John W. Lawyer and Linda Gail Lawyer, instituted this action to quiet title against defendants, Westwood Hills Associates, LLC, and Financial Trust Company. Defendants joined Deluxe Development Corporation as an additional defendant. In their complaint, plaintiffs allege title by adverse possession to a 42 by 74 foot tract titled in defendant, Westwood Hills. Defendant, Financial Trust Company, holds a mortgage on the tract. 99-2549 CIVIL TERM THE PLEADINGS Plaintiff, John Lawyer, purchased a residential property in East Pennsboro Township, Cumberland County, on May 21, 1976.1 The subject 42 by 74 tract is to the rear of plaintiffs' residential property. The subject tract was purchased by East Pennsboro Associates on July 29, 1969. On July 18, 1978, a writ of execution was filed by the Westport Company against East Pennsboro Associates. A levy included the subject tract. The property of East Pennsboro Associates was sold at a sheriff sale for which the Sheriff of Cumberland County executed a deed to the Westport Company on November 13, 1978. On December 12, 1989, the Westport Company sold the property to Deluxe Development Company. Deluxe Development Company sold the property to defendant, Westwood Hills, on June 17, 1998. THE MOTIONS FOR JUDGMENT ON THE PLEADINGS Plaintiffs allege title to the subject tract by adverse possession since May 21, 1976. Defendants maintain that they are entitled to judgment on the pleadings because the continuity of any period of alleged adverse possession claimed by plaintiffs through their predecessors in title from May 21, 1976, was broken, when on July 18, 1978, a writ of execution was filed against a predecessor in title, followed on November 13, 1978, when title was transferred by the Sheriff of Cumberland County to another 1 He transferred the property to himself and his wife, Linda Gail Lawyer, on July 30, 1987. -2- 99-2549 CIVIL TERM predecessor in title? Defendants argue that the twenty-one year statute of limitations for adverse possession cannot extend beyond April 28, 1999, the date the complaint was filed. If the period of alleged adverse possession started on May 21, 1976, and ran continuously until April 28, 1999, it extended for a period of 22 years and 11 months. However, if the period of alleged adverse possession started on November 13, 1978, the date of the sheriff's deed into a predecessor in title of plaintiff, and ran until April 28, 1999, it extended for a period of 20 years and 5¼ months. That period would be short of the 21-year statute of limitation by 6¼ months. DISCUSSION In Young v. Brush Mountain Sportsmen's Association, 697 A.2d 984 (Pa. Super. 1997), citing Bunt v. Pension Mortgage Association, Inc., 446 Pa. Super. 359 (1995), the Superior Court of Pennsylvania stated that a: [p]arty claiming title to real property by adverse possession must affirmatively prove that he or she had actual, continuous, distinct, and hostile possession of the land for 21 years. Each of these elements must exist, otherwise the possession will not confer title. Upon plaintiffs' filing this complaint against the titleholder, defendant Westwood Hills, on April 28, 1999, thus recognizing a superior right in another, any elements of their adversity and hostility required to obtain title by adverse possession ended. See Pistner Brothers, Inc. v. Agheli, 359 Pa. Super. 177 (1986). The occupancy of a 2 Deluxe Development Corporation filed a brief in support of the motions of defendants for judgment on the pleadings. -3- 99-2549 CIVIL TERM titleholder's premises is hostile, and that of a trespasser, until by operation of law, it has ripened over a continuous period of twenty-one years into title by adverse possession. An adverse possessor may tack a predecessor's period of adverse possession to its period of adverse possession. Glenn v. Shuey, 407 Pa. Super. 213 (1991). For possession to be tacked there must be privity between the successive occupants of the property. Id. "Privity refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law." Id. Adverse possession cannot be asserted against the Commonwealth. I-Iostetter v. Commonwealth, 367 Pa. 603 (1951). The general rule is that title by prescription may be asserted against a political subdivision of the Commonwealth unless the land is devoted to public use. Guerra v. 6alatic, 185 Pa. Super. 385 (1958). However, in Torch v. Constantino, 227 Pa. Super. 427 (1974), the Superior Court set forth an exception to the general rule where the political subdivision holds land as a trustee for nonpayment of taxes, for a tax sale. The Court stated: The intent is clear to impose on counties a governmental function of collecting delinquent taxes as a trustee for the taxing districts so that real estate does not lie fallow and that tax titles are so improved as to attract buyers and restore real estate to the tax list. In Young v. Brush Mountain Sportsmen's Association, supra, which defendants cite in support of their motions, appellant sought title by adverse possession. In 1936, the disputed tract had been bought by a county as a result of a tax sale. In 1946, a predecessor in title to appellant purchased the tract from the -4- 99-2549 CIVIL TERM county's trustee. Appellant sought to tack its period of adverse possession to a period of adverse possession by one of its predecessors in title, the Delanceys. The Superior Court concluded that the Delanceys could not have adversely possessed the disputed tract against the county. The Court stated: The effect of the sale was to discharge all prior liens or claims against the land, 72 P.S. § 5971 i, repealed in part by 72 P.S. § 5860.801, and vest fee simple title to the property in appellee's grantor. Id., 72 P.S. § 5971n, repealed in part by 72 P.S. § 5860.801. The tax sale thus invalidated any claim which the Delanceys might have had to the property prior to 1936 by adverse possession or otherwise. (Footnote omitted.) (Emphasis added.) Young is not on point with the present case because (1) a county actually purchased the tract as a result of a tax sale, and (2) the tax sale was during the 21-year period of claimed adverse possession, while the present case of a similar claim of adverse possession involves a mortgage foreclosure during the 21-year period. Furthermore, while a county has an interest in having tax titles improved in order to attract buyers to restore real estate to the county tax list, there is no similar governmental interest in a sale conducted on a mortgage foreclosure. Taxes continue to accrue whether a mortgage is in default or not, and real estate taxes are not extinguished by a judicial sale. 53 P.S. § 7281. Notwithstanding, defendants, citing Florida First Bon Capital Corporation v. Zoning Hearing Board of Lansdale, 40 Pa. Commw. 448 (1979), argue that the sale on a sheriff's deed on November 13, 1978, in the present case, resulted in the title of the sheriff being conveyed to a predecessor in title of plaintiff, not the title of the -5- 99-2549 CIVIL TERM mortgagor/judgment debtor, and that adverse possessor could not run against the sheriff. In Florida, Florida First applied for a special exception to use a residential property for a nursing home. The application was denied. A trial court held that Florida First had no standing to appeal because it had been divested of its title and interest in the property. The Commonwealth Court of Pennsylvania stated the facts: The subject property was originally purchased by the Bonaventures, husband and wife, who obtained a mortgage from First Pennsylvania Banking Trust Co. (First Pennsylvania). The mortgage was recorded on March 10, 1972. On March 17, 1972, Florida took title to the property as trustee under a declaration of trust from the Bonaventures. After a default in mortgage payments in 1973, First Pennsylvania instituted an action against the Bonaventures to foreclose the mortgage, releasing Florida from all liability on the mortgage. Judgment was entered in favor of First Pennsylvania on June 6, 1975, and no appeal was taken. On November 26, 1975, the day after the Board's hearing on Florida's application for a special exception, the property was sold at sheriff's sale to First Pennsylvania. The Bonaventures' exceptions to the sale and petition to set the sale aside were denied and the denial was affirmed on appeal. Thereafter, First Pennsylvania sought possession by an action to quiet title. Judgment was entered against the Bonaventures and was affirmed on appeal. The writ of possession issued. (Footnotes omitted.) The Commonwealth Court rejected Florida First's argument that it qualified as a landowner under Section 1006 of the Municipalities Planning Code, 3 concluding: The effect of a mortgage foreclosure and sale thereunder is to extinguish the mortgagor's interest in the property and to transfer the estate to the purchaser as fully as it existed in the mortgagor at the date of the mortgage. Hartman v. Ogborn, 54 Pa. 120 (1867); Metropolitan Bond Co. v. Atlas Paste Co., 31 Pa. D. & C. 2d 656, 111 Pitts. L.J. 421 (1963). All intervening estates and interests acquired subsequent to the mortgage are also defeated. F~eisinger v. Garrett Smokeless Coal Co., 262 Pa. 530, 106 A. 78 (1919); Metropolitan Bond 3 53 P.S. § § 11006. -6- 99-2549 CIVIL TERM Co. v. Atlas Paste Co., supra. Florida's title and interest were acquired subsequent to the mortgage of First Pennsylvania and were therefore extinguished as a result of the mortgage foreclosure and sale thereunder. (Emphasis added.) Despite the fact that (1) Florida First took title as trustee under a declaration of trust from the Bonaventures that was executed subsequent to the execution of the mortgage that was foreclosed, and (2) the property sold by the sheriff extinguished Florida First's interest in the land and transferred the estate to the purchaser as fully as it existed in the mortgagor on the date of the mortgage, defendants seize upon the general language that "All intervening estates and interests acquired subsequent to the mortgage are also defeated," to argue that a sheriff's sale on a mortgage foreclosure breaks the running of any period of adverse possession. The two cases cited in Florida First for this general language are Reisinger v. Garrett Smokeless Coal Co., supra, 262 Pa. 530 (1919), and Metropolitan Bond Co. v. Atlas Paste Co., 31 Pa. D. & C.2d 656 (Allegheny Co. 1963). In Reisinger, the Commonwealth Court found that the interest extinguished by the sheriff sale on the mortgage foreclosure was a coal lease executed subsequent to the mortgage. In Metropolitan Bond, the trial court applied the rule that a purchaser at a sheriff's sale on a mortgage foreclosure becomes the landlord where a lease precedes the mortgage, and is entitled to the rent which becomes due after acknowledgment of the sheriff's deed, but is not entitled to rent which accrued before but was not payable until after the sale. Thus, like Florida First, neither Reisinger nor Metropolitan Bond stand for the proposition that a sheriff's sale -7- 99-2549 CIVIL TERM on a mortgage foreclosure breaks the running of any period of adverse possession. Various types of interests are extinguished by a sheriff's sale on the foreclosure of a mortgage: rights-of-ways and easements imposed on land without the consent of the mortgagee, Consumer Gas Company v. Vanderwerff, 166 Pa. Super. 358 (1950); leases made by the mortgagor after the date of the mortgage, Roush v. Herbick, 269 Pa. 145 (1920); secret or latent equities, Frank v. Guarantee Trust & Safe Deposit Box Company, 216 Pa. 40 (1906); a grant of title by the mortgagor subsequent to the date of the mortgage, Florida First Bon Capital Corporation v. Zoning Hearing Board, 40 Pa. Commw. 448 (1979); and the lien of a later acquired mortgage or judgment, and the lien of the first mortgage if the first mortgagee is the one who proceeds with the sheriff's sale, Knoell v. Carey, 285 Pa. 498 (1926). An adverse possessor represents none of these types of interests because it does not hold an equity or interest in subservience to the titleholder. Rather, the adverse possessor is a trespasser until the statute of limitations of twenty-one years expires. In Miller v. Shaw, 7 Serg. & R. (Pa.) 129 (1821), Miller sued Shaw in ejectment claiming to have valid legal title to property. Shaw claimed title to the property by adverse possession for over twenty-one years. Miller maintained that a sheriff's sale in the record chain of title stopped the continuity of Shaw's alleged occupancy, thus Shaw could not prove twenty-one continuous and uninterrupted years of adverse possession. The Court of Common Pleas of Lycomimg County refused a motion by Miller to have the sheriff's levy and sale declared, as a matter of law, to have been a formal entry and -8- 99-2549 CIVIL TERM claim. The court left the issue to a jury. A jury found for Shaw. On appeal, Miller maintained that the sheriff's levy and sale had been a formal entry, and it therefore worked an interruption in the occupation by Shaw. The Supreme Court of Pennsylvania rejected the argument, stating: As to the levy and sale by the sheriff, the plaintiff's have no reason to complain of their being submitted to the jury; from anything that appears on the record, that point ought to have been decided against the plaintiffs. It does not appear that the sheriff ever entered. He returned that he had levied "on 1000 acres of land in Nippenose Valley, adjoining Jonathan Walker." No mention is made of the defendant, nor is the land described by the sheriff, as being in possession of the defendant, or having been improved by him. It would be too much, to construe such a proceeding to be an entry, sufficient to interrupt the course of the act of limitations. (Emphasis added.) In Home Land Company v. Nye, 93 Pa. Super. 452 (1928), the plaintiff had legal title to land through a succession of conveyances, the last of which was a sheriff's sale, resulting from a foreclosure proceeding on a mortgage. However, the defendant was in exclusive, continuous, open and hostile possession of the land for more than twenty-one years prior to plaintiff's bringing an action to eject him. Plaintiff maintained that the sale of the mortgage premises interrupted the continuity of defendant's occupancy thus defeating his claim to the land by adverse possession. Defendant prevailed at trial. On appeal, the Superior Court stated that: It will be observed that the thing sold by the sheriff was the title existing in the mortgagor .... The scire facias was not a writ to determine a title as against as adverse owner. It was a process for the collection of the amount due on the mortgage .... The sale on the mortgage had the effect to put the plaintiff in the mortgagor's place -9- 99-2549 CIVIL TERM as to title, but it was not effective to defeat the estate which the defendant claimed adversely to the title of the mortgagor .... An examination of the testimony brings us to the conclusion that there was not such entry on the land by the purchaser at sheriff's sale as would break the continuity of the defendant's occupancy .... "In order to defeat an actual adverse possession, which, if continued, would give title under the statute, the entry must be of such a character, and accompanied by such notice, as clearly indicates to the occupant that his possession is invaded and his right challenged..." (Emphasis added.) The Court went on to say that even if it were otherwise: [t]here was a failure to comply with the Act of 1859, P.L. 603, which provides that "No entry upon lands shall arrest the running of the Statute of Limitations, unless an action of ejectment shall be commenced therefor within one year thereafter." This act was construed in Hasson v. Klee, 181 Pa. 117, wherein the court said that it relates to the entry during the running of the Statute of Limitations and to the proceedings necessary to make such entry arrest, from the date of it, the running of the Statute. The Act of 1859 is now codified in the Judicial Code at 42 Pa.C.S. Section 5530(b). CONCLUSION The titled transferred by a sheriff on a sale following a mortgage foreclosure is not the sheriff's title. The purchaser receives the mortgagor's title via a sheriff's deed. While various interests are extinguished by a sheriff's sale, an adverse trespasser for less than 21 continuous years has no interest to extinguish. No interest arises in a trespasser until title ripens, by operation of law, after actual, continuous, distinct and hostile possession of the subject land for twenty-one years. In light of Miller v. Shaw, supra, and Home Land Company v. Nye, supra, and having found no authority in support of defendants' position that a sheriff's sale upon a mortgage foreclosure breaks a period of adverse possession, defendants' motions for judgment on the pleadings will -10- 99-2549 CIVIL TERM be denied. AND NOW, this judgment on the pleadings, IS DENIED. ORDER OF COURT day of November, 2001, the motion of defendants for By the Court, Charles E. Shields, III, Esquire For Plaintiffs Ronald M. Lucas, Esquire For Defendants Keirsten W. Davidson, Esquire For Additional Defendant :saa Edgar B. Bayley, J. -11-