149 A. 184 | Pa. | 1930
Argued January 14, 1930. Andrien, the plaintiff, agreed, on March 2, 1928, to purchase, for $50,000, from defendant Heffernan, a tract of land containing between 14 and 15 acres. A part of the consideration was to be satisfied by the assumption of an outstanding mortgage on the land. Of the balance, due in cash, $1,000 was paid when the contract was signed, $4,000 the day after, and the balance at the time fixed for settlement. When the contract of sale was entered into, a pencil sketch of the property offered was exhibited to the vendee, upon which streets were marked, as the agent testified. Later, a draft was prepared which showed the possible subdivision of the tract into lots, which Andrien insisted was displayed to him before the purchase was made. The court, in its 13th finding, found the plot, last referred to, was submitted prior to the execution of the agreement, but, on exception, this conclusion was set aside. As we view the *287 case, this disputed question of fact is immaterial to a proper determination of the real controversy.
When the date for final settlement arrived it appeared, by the certificate of the company employed to make the necessary searches, that a private lane, passing through the southwesterly side of the property, had been reserved in a deed executed 125 or more years before by the vendor's predecessors in title. It was not marked on the ground, and its existence was unknown to either of the parties to this proceeding. One end was closed by a fence, which had been in place for at least 40 years, and the right-of-way, 25 feet in width, was covered with trees and shrubbery. Because of this unextinguished easement, — for nonuser would not destroy it (Hall v. McCanghey,
Both parties were anxious that the sale be consummated, and the vendor offered to accept a reduction of $1,725 in the purchase price so that the transaction could be closed, but later withdrew the tender made. The abatement in the amount of the consideration was deemed by Andrien to be insufficient, and the parties agreed, on July 23, 1928, that $6,000 be deposited until the question of a proper allowance for damages sustained should be fixed by the court in a judicial proceeding; the amount found due, with interest thereon, to be turned back to the vendee, who paid the balance of the purchase money, and the remaining portion, if any, to the vendor.
A purchaser, who has contracted for a title free from encumbrances, may refuse to accept a deed tendered when one is discovered (McDermott v. Reiter,
An encumbrance has been defined "as a burden on land which depreciates its value, as a lien, easement or servitude, and includes any right or interest in the land which may subsist in third parties to the diminution of the value of the land, but consistent with the conveyance of title": Howell v. Northampton R. R. Co., supra; Batley v. Foerderer,
Ordinarily, the deduction is made pro tanto, and where a part of the acreage cannot be conveyed, and the remaining land is not injured by the failure to convey a portion, the corresponding part of the purchase money is withheld (Napier v. Darlington,
The court took the view that the land embraced in the old right-of-way could not be considered as a fraction of that taken from the whole, nor could the area of the remaining portion of the 11 lots, laid out on the plan, and affected injuriously by the easement, be added thereto, using the total decrease in acreage as a basis for the deduction allowed, the rule first applied by the trial judge. As to the last item, it is clear that the land outside of the right-of-way, marked out on the unrecorded plan prepared, but not staked off on the ground, could not be treated as so many separate subdivisions affected by the encumbrance. The correctness of this conclusion, as finally reached by the court, is amply justified by the authorities, where a similar question has been *290
considered in the case of land appropriated under the power of eminent domain: Gorgas v. P., H. P. R. R. Co.,
Both sides have appealed; the plaintiff complaining that the award is insufficient in amount, and the defendant of the allowance of any sum whatsoever, insisting that no abatement was legally allowable in a proceeding where the purchaser was asking specific performance. The conclusion reached by the court below in each case was proper and should be approved. As a joint record was prepared and used in both appeals, the cost of printing the same should be divided, and the respective parties pay for their own briefs.
The decrees in both cases are affirmed, each party to pay the costs of his own appeal, and one-half of the cost of printing the record.