Bell v. Yontos , 1942 Pa. Dist. & Cnty. Dec. LEXIS 332 ( 1942 )

Eagen, J.,

— On August 5,1937, a judgment was entered in the prothonotary’s office of this county in favor of the then Secretary of Banking of the Commonwealth against Joseph Yontos on a note containing a confession of judgment. On November 25, 1941, a deed was entered of record conveying certain real estate in this county from one Joseph Antos to Helen and Henry Benson. On August 5, 1942, a scire facias to revive the aforesaid judgment was issued naming Joseph Yontos, also known as Joseph Antos, as defendant, and Helen Benson and Henry Benson as terre-tenants. To this sci. fa. Helen Benson on behalf of herself and Henry Benson filed an affidavit of defense saying, inter alia, that they are not terretenants of Joseph Yontos.

Plaintiff moves for judgment for want of a sufficient affidavit of defense, and with the rule granted thereon we are concerned. While we have found no appellate court decisions directly in point, there are many lower court cases which hold that a terre-tenant is not required to file an affidavit of defense to a sci. fa. See Harr, Recr., v. Deeter et al., 31 D. & C. 702, Duggan v. Strange, 22 Dist. R. 638, Salberg v. Duffee et al., 21 D. & C. 144, and Kelley & Co. v. Place, 11 Dist. R. 608. These cases hold that where an affidavit of defense is filed voluntarily, although it was not required, judgment may not be entered against the terre-tenant for the insufficiency thereof. The only thing that is required on the part of the terre-tenant is a plea that he is not the terre-tenant of the defendant, or a denial that he holds, owns, or possesses any land upon which the judgment is a lien. The terre-tenant has nothing to do with the merits of the claim against the defendant. The only question is whether he owns land upon which the judgment is a lien. While the answer in the present case is in the nature of an affidavit of defense, we shall consider it as a plea. And since it raises the issue whether or not Helen and Henry Benson are terretenants of defendant and whether or not they own, hold, or possess lands upon which the original judgment was a lien, we think the plea is a sufficient one.

Now, therefore, October 23, 1942, the rule heretofore granted to show cause why judgment should not be entered for want of a sufficient affidavit of defense is discharged.