90 Pa. Super. 255 | Pa. Super. Ct. | 1926
Argued October 29, 1926. This suit is brought to recover down money paid upon an agreement of sale. The agreement provided "premises to be conveyed clear of all liens and encumbrances, excepting existing restrictions and easements, if any. Title is to be good and marketable, and such as will be insured at regular rates by any responsible title insurance company." A former owner of the land had purchased it from St. Luke's Church, Germantown, and in his deed there is contained the following "the said Henry B. Jamison, grantee as aforesaid, for himself, his heirs and assigns, doth hereby expressly covenant, promise and agree to and with the said St. Luke's Church of Germantown, grantor as aforesaid, its successors and assigns, that he, the said Henry B. Jamison, his heirs and assigns, shall and will cause to be erected, a brick stone wall to be placed on the southerly line of the above-described piece of ground, which said wall shall not be a party wall but shall be erected solely on the above-described piece of ground, shall be without openings and shall extend ...... from the westerly side of Twenty-first Street to the full distance of One Hundred and four feet three-eighth inches and which said wall shall be built and maintained at the expense of the said Henry B. Jamison, grantee as aforesaid, and shall be built before any other building or structure shall be built on the above described lot. Nothing in this clause to be construed as prohibiting the use of this wall as a curtain or sidewall of a building."
The purchaser refused to take title because of the alleged encumbrance created by the above covenant contained in said deed and brought suit to recover the money paid on the agreement. The vendor claims that *258 the above quoted part of the deed to his predecessor in title falls under the exception in the agreement referring to "of existing restrictions and easements, if any." The question came before the lower court upon the pleadings which presented the claim and the defense thereto as above indicated. The lower court construed the above provision as a covenant running with the land and an encumbrance and entered judgment in favor of the plaintiff.
It was the evident intention of the parties to convey the title clear of encumbrances. The provision above quoted denying the right of the owner of the property to erect a building is in the nature of a restriction, but not such as is usual, which provides for the setting back of the building to a certain line, but it is a deprivation of the use of the property for building purposes until a wall is erected, which necessarily would require an expenditure of money. This is a charge upon the land and the maintenance of the wall is of the same nature, for before he can use his property for the only profitable purpose for which it is adapted, the vendee must make certain expenditures, and is thereafter bound to maintain the wall. To arrive at a reasonable conclusion, we dare not broaden the meaning of the word "restriction," else, we would have the anomaly of the first clause providing against encumbrances and the second clause allowing them. If the provision is essentially an encumbrance, the contract to convey a good title is broken.
In the recent case of Ritter v. Hill,
The judgment is affirmed. *260