76 Pa. Super. 221 | Pa. Super. Ct. | 1921
Opinion by
Tbe plaintiff filed a bill praying for a decree of specific performance of an executory contract for tbe sale of real estate, entered into between bim and tbe defendants. Tbe agreement was in writing, dated 27tb of May, 1918. Therein tbe present defendants, tbe owners of a piece of real estate in tbe City of Philadelphia, covenanted and agreed to convey tbe same clear of all encumbrances for a price therein named. It contained a provision for tbe payment of $50 band money “which deposit shall be forfeited to tbe said party of tbe first part [tbe vendor] as liquidating damages in case of tbe default by tbe said party of tbe second part, etc.” It further provided that settlement was to be made “within ninety days from tbe date hereof, said time to be tbe essence of this agreement, unless extended by mutual consent in writing endorsed hereon.” It was known to tbe plaintiff as well as to tbe defendants that at tbe time tbe agreement was made, tbe property was subject to a ground rent yielding tbe sum of $42 annually. It was also known to both that such rent was a redeemable one and it was in tbe contemplation of tbe parties that its redemption could be brought about under ordinary circumstances.
Tbe learned judge below, upon sufficient evidence, found that it was practically impossible for tbe vendor to bring about this redemption of tbe ground rent because be finds as follows: “Respondents were ready and willing at all times during tbe life of said agreement, expiring August 27, 1918, to execute and deliver their deed of conveyance in accordance with its terms, but upon communicating with tbe Fidelity Trust Company of Philadelphia, agents for tbe collection of tbe said ground rent, for tbe purpose of obtaining a deed of extinguishment thereof, they were then informed that tbe owners of said ground rent were scattered, some residing in Europe, whose whereabouts were
We are therefore of opinion the learned court below was right in dismissing the bill, and his decree should not be interfered with. Decree affirmed; the costs to be paid bj appellant.