Opinion by
We are all of opinion that the facts of this case were correctly found by the referee and that the learned judge of the court below erred in not affirming his findings of fact and entering judgment in favor of the defendants.
The learned court below says that in his “ opinion the findings of law and conclusion of the referee are correct as based upon his findings of fact.” But the court holds that the referee’s second, fifth and seventh findings of fact are not supported by the evidence.
The referee’s second finding of fact is as follows:
“In 1871 or 1872, Sidney Fuller, C. M. Garrison and J. N. Garrison, became the owners by purchase from W. D. J. Marlin of the south half of the above ninety-three acres and containing forty-six acres more or less. The deed for this forty-six acres was not executed by Marlin to Fuller and Garrison until September 8, 1888.” By this deed W. D. J. Marlin and wife conveyed to C. M. and J. N. Garrison and Sidney Fuller “ all the southern half of that certain tract, piece or parcel of land situated in the township of Sandy, formerly Brady, in the county of Clearfield and state of Pennsylvania, bounded on the north by the northern half of the tract, east by Pentz, south by land now or formerly of Bell and west by Walburn. Being the southern half of a certain piece, parcel or tract of land conveyed by James T. Leonard and wife to W. D. J. Marlin by deed dated September 2, 1869, recorded in Clearfield county in deed book E E p. 142.” The deed recites the fact that it “was made in pursuance of an agreement entered into about 1871 or 1872.” It is not claimed, and the evidence does not disclose, that there was any other agreement between the parties than the one for the purchase of the land described in the deed. It will be presumed, therefore, that the deed was made in execution of and to carry out the agreement of 1871 or 1872 and that the property thereby conveyed was the same contracted to be sold by said agreement. The testimony of Sidney Fuller supplements and corroborates the recital in the deed. He testified that this deed was for the land that the Garrisons and Fuller purchased of W. D. J. Marlin in 1869 or 1870, as he thought, by a written contract. The deed to the Garrisons and Fuller from Marlin, although not executed and delivered until*356 September, 1888, shows, as we have seen, that it was made in pursuance of a contract entered into about the time testified to by Fuller and conveys the divided half of the Marlin tract. In view of the fact that this evidence was not contradicted, we think it was ample to sustain the referee in his second finding of fact. It is equally applicable to and supports the referee’s fifth finding of fact that “at the time of making the above agreement (of March 1, 1871 between John F. Overdorff and Sidney Fuller), Fuller and his firm were the owners of the divided half of ninety-three acres instead of the undivided half.”
The seventh finding of fact by the referee is as follows: “We find from the evidence that this is the same land as described in the agreement as the undivided half of the Marlin lot and this deed was made to Sarah Ann Overdorff by direction of John F. Overdorff, her husband, and was made in execution of the contract of March 1, 1871.” The learned judge of the court below concedes that Fuller stated in his testimony as found by the referee, that the contract and the deed are for the same land, yet he reverses this finding of fact because, as he holds, an inspection of the papers shows that the statement is incorrect, and that it appears by Fuller’s testimony that the contract sets out the real agreement. It is true that the word “ undivided ” is used in the agreement of 1871, but it is manifest from all the evidence that this was an error and that it was the intention of both parties to the contract to convey the divided one half of the Marlin premises. Every act done by the parties interested in the title with reference to the matter . since the execution of the contract leads to this conclusion. James T. Leonard, by deed of September 2, 1869, conveyed to W. D. J. Marlin ninety-three acres and 117 perches of land which includes the land for which this action was brought. The deed of September 8,1888, by Marlin to the Garrisons and Fuller, was made, as therein recited, in pursuance of an agreement entered into about 1871 or 1872 and conveyed the southern half of the land conveyed to Marlin by Leonard. The grantees in this deed, therefore, did not take or hold by this conveyance an undivided half, but the southern half, of the ninety-three-acre tract. This was the only interest they had in the Marlin land at the time they agreed to exchange lands with John F. Overdorff in 1871. By deed dated October 26,1881, the Garri
We are therefore of opinion that the facts disclosed by the evidence fully justified the referee in finding that the land conveyed to Mrs. Overdorff by the deed of October 26, 1881, was the same land as described in the agreement of March 1, 1871 between John F. Overdorff and Sidney Fuller.
The learned court below was in error in holding that John F. Overdorff’s equitable title to the premises conveyed to his wife was vested in Sidney Fuller by the sheriff’s sale on the judgment of Evans & Brother, subject to the payment of $400 of unpaid purchase money represented by the mortgage from Mrs. Overdorff and her husband. The consideration due from John F. Overdorff to Fuller was, as we have before stated, the forty-two acres of land described in the agreement of March 1, 1871, and conveyed by John F. Overdorff and his sister to John Dubois by the deed of December 17, 1881. So far as the evidence discloses, there is no unpaid purchase money due Fuller and he claims none. The mortgage was given by Mrs. Overdorff and her husband to Sidney Fuller to secure the repayment to him of $400, which he had advanced John F. Overdorff to pay his sister, Mrs. Solida, for her interest in the forty-two acres of land which John F. Overdorff had agreed to convey to Fuller. The sum due Sidney Fuller on this mortgage
We have considered and disposed of the only questions raised by the assignments of error and our conclusion requires us to sustain the fifteenth assignment and hold that the court below erred in reversing the referee’s findings of fact and conclusions of law, and in refusing to direct a judgment for the defendants.
The judgment is reversed and judgment is directed to be entered for the defendants with costs.