Philadelphia v. Dale

Opinion by Henderson, J., There is nothing on the record which would have justified the court in giving binding instructions for the defendant as requested. No objection was made to the regularity of the lien or of the subsequent processes. When the case was called for trial the only defense offered was that the street on which the improvement was made was not a city street. This question was submitted to the jury by the court in a fair and adequate charge and the finding of the jury was in favor of the plaintiff. No exception was taken to the action of the court in refusing to permit a suggestion to be filed that the defendant in the [344] case was dead, and there is nothing on the record to support the assignment on that subject. The suggestion was not made on behalf of any owner nor was it proposed that any person intervene as a party defendant. The act of June 4,1901, P. L. 364, permits any person having an interest in .the property whensoever acquired to apply to the court for leave to become a party in such a proceeding; but as the suggestion of the defendant was not made on behalf of any owner nor accompanied by a petition to intervene, the court very properly declined to permit the paper to be filed. The proceeding is not against the individual but against the property and no personal liability arose under the proceeding. As there was no other registered owner and no intervening party in interest the case was properly proceeded with as might have been done in the case of an unknown owner: Jones v. Beale, 217 Pa. 182. There was no offer to show that the successors in title to the defendant in the writ had registered their title under the provisions of the Act of March 29, 1867, P. L. 600. An owner of land who has not registered his title is in the same position which he would have occupied if the Registry Act had not been passed. His property may be sold under proceedings to which he is not made a party and of which he had no notice: Philadelphia v. Unknown Owner, 148 Pa. 536; Philadelphia v. Smith, 29 Pa. Superior Ct. 450. As there was no attempt to intervene before the trial or to register the title and thereby connect the appellants with the land they have no standing to be heard now. The evidence was presented on the defense set forth in the affidavit of defense and the rights of any persons who may have been interested in the land seem to have been fully protected. The only question raised by the appeal is the right to proceed to trial without substituting a new defendant. Neither on the technical ground set up nor on the merits of the case is a defense presented which requires the .reversal of the case. The judgment; is affirmed.