Summary
finding a notice adequate that did not give the property's street address but instead provided a description of the property, by block and lot number, map description, and the metes and bounds
Summary of this case from KEB Hana Bank U.S. v. Red Mansion, LLCOpinion
Argued April 12, 1954.
June 4, 1954.
Judicial sales — Sheriff's sale — Validity — Notice — Description — Sales price — Sufficiency.
In a proceeding on a petition to set aside a sheriff's sale upon a mortgage foreclosure, in which the court below found that petitioner had had actual notice of the sale, that the sheriff's advertisement and notice sufficiently described the premises, and that the sale price was not grossly inadequate, it was Held that the petition was properly dismissed.
Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 128, Jan. T., 1954, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1953, No. 1539, in case of Walter Shimkus and Sally Shimkus v. Albert Klimatis and Edward Klimatis. Judgment affirmed.
Petition to set aside sheriff's sale.
The facts are stated in the opinion, by HOBAN, P.J., of the court below as follows:
Two parcels of real estate situate on North Main Avenue in the City of Scranton were mortgaged to the plaintiffs. The mortgage being in default, the plaintiffs issued execution process and brought the matter to sheriff's sale. At the sale the plaintiffs directed that only Parcel No. 2 should be sold. The only bid was for taxes and costs, which amounted to $5,328.65. In addition thereto the plaintiffs, who purchased the property, had invested therein the sum of $8,353.45 by way of mortgage and interest in default. In effect therefore the plaintiffs have invested in their purchase approximately $14,000.
Petitions to set aside the sheriff's sale were brought separately by Edward Klimatis, who with his wife was living in the property sold at the time of the sale; by Antoinette V. Shalaka, who alleged that she was a grantee from Edward Klimatis; and by Albert Klimatis, one of the mortgagors. The separate rules to set aside were argued together before the court in banc. Subsequent to the argument, apparently Edward Klimatis and Antoinette V. Shalaka have composed their differences with the plaintiffs and have filed normal withdrawals of their exceptions to the sheriff's sale. There remains therefore for disposition the rule on behalf of Albert Klimatis.
Albert Klimatis bases his motion to set aside on the ground that the consideration paid at the sheriff's sale was grossly inadequate, that he did not receive actual notice of the sale, and that there was insufficient posting of the property by the type of handbills used by the sheriff.
The depositions clearly indicate that Albert Klimatis had personal knowledge of the sale at least five days prior to the date thereof, and that in fact he was represented at the sale by his own lawyer, his wife, and his mother-in-law.
Albert Klimatis alleges that the notices posted by the sheriff were insufficient for the reason that there was a misdescription of the property for failure to give the street address of the property in the posted notices, and for failure to describe the property which was sold at the sale as a funeral home rather than as a dwelling-house.
The depositions clearly show that in fact the house was a dwelling-house and had been used as such by Edward Klimatis and his wife, and that in recent years it had been very infrequently used as a funeral home, although it had been used in the past by the common ancestor of Edward and Albert Klimatis, and Edward and his wife had made considerable improvements therein with a view toward its future use as a funeral home.
We think that the sheriff's advertisement and notice, describing as it did the property by lot and block number, by metes and bounds, and by map description, together with a general description of the buildings on both Parcel 1 and Parcel 2, sufficiently meets the requirements of the law.
As to the inadequacy of the price, the petitioner bases his argument on the fact that a real estate man testified that while the property was worth around $13,000 as a dwelling-house, if considered as a going funeral home it would be worth $20,000. In view of the fact that the plaintiffs actually have an investment of approximately $14,000 in the property, and the fact that while the premises were adapted to use as a funeral home they had been used so infrequently for that purpose in recent years that the establishment could not be considered in any sense as a going business, we think that any assumption that the sale price as compared to the worth of the premises is grossly inadequate would be mere speculation.
It is to be noticed that this petitioner assumes that if the premises were readvertised and offered for sale a better price might be obtained. This assumption might be made in the case of any sheriff's sale. But petitioner has not come forward with any bid or prospective bidder who will offer to bid a price commensurate with petitioner's idea of the value.
It is further to be noticed that the depositions clearly show that the default in interest, running over a period of years, was largely due to petitioner's own inability or neglect to provide for the debt service as required in the mortgage.
Under all the facts we can see no reason to support petitioner's exceptions; and the rule therefore must be discharged.
Petitioner appealed.
Guy A. Solfanelli, with him Gerald G. Dolphin, for appellant.
Sidney Grabowski, with him Edward Yawars, Jr., for appellees.
The judgment in this case is affirmed on the opinion of the learned court below.