95 Pa. 447 | Pa. | 1880
delivered the opinion of the court,
By deed acknowledged August 17th 1872, Campbell conveyed the land to Patterson and Reed, “ with the right of way over a private road or street, forty feet wide, from the said township road, along outside of the first described four lines of this piece of ground.” In October following he conveyed the adjoining lands to Hampton, Routh and others, reserving the right of way before granted over said private road. After these conveyances, he wrote in the deed to Patterson and Reed this addition to the description: “And being section C in a plan of subdivision of part of said larger tract to be hereafter recorded,” and gave them the plan. They allege said plan set out divers streets leading from the land conveyed to them through the adjoining lands, subsequently con
Reed, one of the grantees, was a minor and became of full age November 5th 1873. Nominally he is not a party, but he and Patterson each filed a deed at same time, for same purpose, to take effect “ upon a rescission of the contract under terms of plaintiff’s bill.” The notes given for purchase-money which became due in 1878, 1874 and 1875 were paid, but those due in 1876 were not paid, and against suits thereon the makers set up defences of fraud and Reed’s minority. From the first Patterson paid for Reed and himself, and also paid the taxes. That they had some arrangement respecting the land and payment of the notes is manifest from the testimony of Reed, rvho had much difficulty in telling about it because of the plaintiff’s objections, some of which were very strange. Patterson was neither a minor nor aged and infirm, but of mature and vigorous mind, so that it is not pretended he could have been easily overreached in a bargain. He cared for Reed’s interest, and shows no renunciation by Reed for nearly three years after he arrived at majority; nor did he himself, during said time, complain of fraud.
Aside from the testimony of the grantees there is no evidence to impeach the deed. Nobody else knows of such streets as they claim, either on the ground or on a plan. Those who purchased the adjoining lands heard nothing of any streets, save those mentioned in the deed to Patterson and Reed. That description of a private way is persuasive that no other was included in the grant. Naming one excludes others. The land for sale was divided into parcels on the plan — each parcel containing a number of acres— but no piece was subdivided by streets and alleys and into lots, as if for a village. Ample facility was given to reach the township road, and no inference can reasonably be drawn that more was intended than expressed. But it is competent to prove the allegations of the bill and overcome the answer, consistent as it is with the deed; and the inquiry is, whether this has been done by testimony that ought to move a court to decree a rescission.
There is a material difference between circumstances which require a chancellor to forbear and those which require him to act. On a question of specific performance he may choose to be silent; and his action, being of grace and not of right, is to be directed by a sound though legal discretion. But circumstances proper for a rescission, involving as they do the control of a legal right, are necessarily of a more positive and definite cast. The consequence of the distinction is, that though equity would refuse to interfere for purposes of execution whenever it would revoke, it may refuse to revoke when it would decline to execute: Delamater’s Estate, 1
Here the witnesses are the grantees. If there be corroborative evidence it is overbalanced by the express grant of the right of way. Eor considerable time the purchasers were satisfied. They have remedy by action for damages if the unpaid purchase-money is not enough to cover the injury for the alleged fraud. We see nothing in the case to justify a conclusion that rescission in a court of equity is the only adequate relief; but, be that as it may, upon the whole case we are satisfied that the fraud charged is not so proved that a chancellor ought to act.
Decree reversed, and it is now considered and decreed that the bill be dismissed, without prejudice in any action at law, and that the costs, including costs of this appeal, be paid by the appellee.