63 Pa. Super. 153 | Pa. Super. Ct. | 1916
Opinion by
The plaintiff’s action is brought on the implied covenant against encumbrances and for quiet enjoyment arising from the words “grant, bargain and sell” in a conveyance of real estate. The defendants were the owners of a house and lot on Seventh street in the City of Philadelphia. Desiring to convert the attic into rooms and to make certain changes in the first story a contract was entered into by Albert H. Lieberman, in behalf of himself and his cotenants, with a contractor for the improvements proposed. The general plan included the heightening of a party wall to the extent of three feet in order that a flat roof might be constructed on the building. Specifications for the work were general in character and the parties apparently depended on their verbal understanding or on the integrity of the contractor for the satisfactory performance of the work. The agreement with the contractor provided that all work be done in accordance with the rules and regulations of the Bureau of Building Inspection. The addition constructed on the top of the party wall was made of brick and was four inches in thickness. Some time after the improvements had been completed the defendants conveyed the property to the plaintiff. s After he had been in possession of the premises for a time complaint was made by an adjoining owner that the party wall was not built in conformity with the Act of May 5, 1899, P. L. 193; that it should have been nine inches thick; whereupon a proceeding was instituted before a magistrate against him to recover the penalty provided in Section 52 of the act because of his maintenance of the wall. Without desiring to go to trial and after some negotiation with a building inspector it was arranged that the plaintiff should cause the wall to be made
Do the facts averred in the statement and disclosed by the testimony constitute an encumbrance within the covenant? An encumbrance is any right to, or interest in, land which may subsist in third persons to the diminution of'the value of the estate of the tenant but consistently with the passing of the fee: Cemansky v. Fitch, 121 Ia. 186; Prescott v. Truman, 4 Mass. 627; Huyck v. Andrews, (N. Y.) 3 L. R. A. 789; 2 Greenleaf Ev. Sec. 242; Mitchell v. Warner, 5 Conn. 527; Carter v. Denman, 3 Zabriskie 273; Rawle Cov. for Title 112. Familiar illustrations are mortgages, judgments and other liens, leases, executory contracts of sale and taxes assessed. Some easements have been held to be encumbrances because of their nature and the fact that they are appurtenant to the land: ways, water rights and the like. But whether lien, easement or otherwise the impediment is a right to, or interest in, land. The covenant against encumbrances is in prsesenti and is broken when the deed is delivered, if broken-at all. It does not include charges created after the execution of the contract : Funk v. Voneida, 11 S. & R. 109. It is not claimed that any lien existed at the time the defendants conveyed the property, nor was there any easement. The defect alleged was a condition of a portion of the party wall in violation of the building law. This was a condition which, if it existed, the law authorized the proper authorities to suppress in the manner pointed out in the statute. This statute applies not only to owners, builders, contractors, architects or workmen, who shall make any alteration, construction or removal of any building or structure whatsoever, in violation of any of the provisions of the act, but also to any one who may become an owner thereof after the work has been done and who shall omit, neglect or refuse to remove the same “if dangerous or in violation of this act.” It is the application of the police power to the regulation of buildings
The judgment is reversed.