Breneiser v. Davis

134 Pa. 1 | Pa. | 1890

Opinion,

Mr. Justice Clank :

This case was given to the jury with peremptory instructions to find for the defendant, and this is the principal error complained of. The deed to Charles Breneiser, Jr., dated March 27,1885, and recorded on the 1st April thereafter, described the property conveyed as follows:

“ All that certain two-story brick dwelling-house, with brick back buildings, and a lot or piece of ground, situate on the west side of South Eighth street, between Chestnut and Franklin streets, in the city of Reading, aforesaid, No. 140 South Eighth street; bounded on the north by other property of said Andrew Davis, deceased; on the west by other property of said deceased about to be conveyed to Charles H. Davis; on the south by property of Mary R. Marhett, and on the east by said South Eighth street; containing, in front, including alley, 19 feet 5 inches, and in depth 120 feet; subject to the joint use of the alley on the north by the owner of the premises adjoining on the north.”

This description, it must be conceded, without more, was sufficient to vest title to the premises in dispute in the plaintiff, and the learned judge so instructed the jury. The lots No. 138 and 140, it was admitted, were “the same premises,” and George D. Stitzel, the executor of the last will and testament of Andrew Davis, deceased, had power and authority-under the will to sell the whole, in his discretion, for the best price he could obtain. The premises -do not appear to have been divided and numbered according to any city plot or plan, but by a private draft, made by the executor or under his directions, and it was competent for. him to make such division as in the exercise of a reasonable discretion might seem best for the interests of the estate. The executor, therefore, having advertised, sold, and conveyed, according to a certain description, a lot of ground 19 feet 5 inches in front, including the alley, and 120 feet back, the purchaser would, in the absence of anything to restrict his right, be entitled to hold to that boundary. Nor would the existence of a wooden fence within these lines, defining the mode of the present enjoyment of the property, limit his right to the line upon which it stood; for it was in the executor’s power to convey to any line he might establish, regardless of the fence. If the advertisement, or the contract of sale, or the deed, had called for the fence as the boundary, a different case would be presented. In that case, the distances in the deed would have yielded to the call for the fence, as a monument on the ground defining the actual boundary of the land embraced therein. But neither the advertisement nor the conveyance made any mention of the fence as a boundary; the lot was described as adjoining the Marhett lot, and as “containing, in front, including the alley, 19 feet 5 inches, and in depth 120 feet.”

So, also, if the conveyance had been expressly according to a survey, or for a lot or tract of land by name, the identity and location of which had been fixed by a survey on the ground, then, in either ease, would the courses and distances yield to the calls of the survey, and to the actual lines as they were found on the ground. But in this case the estate of Andrew Davis, deceased, owned the entire premises, and it was competent for the executor to convey according to any line he chose. The Marhett lot formed one boundary, and Breneiser had a right to expect that the boundary opposite would be according to the distances in the deed.

But it is said that Stitzel did have a survey of these lots, and a draft which was present at the sale. The sale was at the Kejrstone Hotel, and Mr. Stitzel and Mr. Stevens both testify that the draft was lying by the side of the desk, on the counter, in the hotel, when the sale was made; that the attention of bidders was called to the fact, and that the property would be sold according to the draft. This draft was offered in evidence, and it would appear to have excluded the strip of ground in dispute from the Breneiser lot, and to embrace it in the Davis lot. Charles Breneiser, Jr., was not at the sale. He was represented there by his father, Charles Breneiser, Sr., who says that he had no notice whatever of this draft; that no announcement was made in his hearing; that he bid and bought according to, and relying upon, the description contained in the advertisement; that he did not know whether the fence was on or off the line, but believed that the lot was of the size advertised.

It is said, however, that the disputed ground was embraced in the description of the lot No. 138, and, although that lot was not then sold, yet Breneiser, as a bidder upon No. 140, was affected with notice of the description of No. 188, and his purchase of No. 140 was according to the line of No. 138. Breneiser was not a bidder upon No. 138; he had no concern in that sale, and was not affected with notice of the lines of that lot. But, if this were so, why should Davis not, in like manner, be affected with notice of the description of No. 140, especially as that lot was first sold, and the contract executed several days before Davis’s purchase was made ?

The defence is founded upon an alleged mistake; a mutual mistake of the parties to the Breneiser deed. Charles H. Davis, having bought with notice of Breneiser’s previous purchase, stands in Stitzel’s shoes, and, in order to sustain his case, must establish his claim by such proof as would justify a chancellor in reforming the deed. Equity will, in case of fraud or mistake, reform a written contract so as to make it conform to the intention of the parties: Snyder v. May, 19 Pa. 235; but the party alleging the mistake must establish it by clear, precise, and indubitable proofs: Stine v. Sherk, 1 W. & S. 195; Schettiger v. Hopple, 3 Gr. 54; Rowand v. Finney, 96 Pa. 192; Stewart’s App., 98 Pa. 377; Logue’s App., 104 Pa. 136; Sylvius v. Kosek, 117 Pa. 67.

The judgment is reversed, and a venire facias de novo awarded.