90 Pa. 264 | Pa. | 1879
delivered the opinion of the court,
This was an action brought by the plaintiff, Louis H. Koch, against the defendant, Jacob Dunkel, on a covenant of general warranty in a deed, for land, executed and delivered by the latter to the former, on the 11th of June 1878. This indenture purported to convey, by certain metes and bounds, sixty-two acres and seventeen perches of land for the consideration of a round sum of nine thousand dollars. This money was fully paid at, or immediately before, the delivery of the deed, and Koch was thereupon put into possession of the premises. It was afterwards discovered, if it were not known before, that there was a deficiency in the land thus sold of some three acres and thirty-eight perches; and it is for the value of this deficiency that the present suit is brought.
Disregarding, for the present, the technicalities of this case, the explanation of the transaction is about as follows: In November 1867, Dunkel conveyed to John Cameron a strip, off the northern side of his farm, of three acres and thirty-eight perches, the same as the deficiency above stated. Cameron immediately went into possession, fenced it off, erected buildings upon it, and has occupied it ever since. Furthermore, in May 1878, Dunkel and Koch entered into articles of agreement, in pursuance of which the deed above recited was made, and in said articles the land was described as a farm of sixty acres, more or less, for which Koch agreed, on delivery of the deed, to pay nine thousand dollars. From this it is quite evident that both the courses and distances and contents of the land, as stated in the deed, were a mistake, arising, no doubt, from the copying, by the scrivener, of the original deed to Dunkel, instead of his following, as he ought to have done, the terms of the agreement. The facts above stated render this conclusion inevitable, for as Cameron was in possession and had been in possession at the time when, and many years before, Koch bought, he surely did not suppose he was purchasing Cameron’s land, and as the articles of agreement called for but sixty acres, more or less, the obvious intention of the parties was to sell and buy the farm then in Dunkel’s possession — nothing more and nothing less. This conclusion is still further fortified by the fact that the price to be paid was a gross sum, and not a certain sum per acre. Clearly, then, on the equity of the transaction, the learned judge, to whom the case was submitted, decided rightly.
But the plaintiff contends that the previous agreement was merged in the deed, and so was not competent evidence. For the present this may be conceded. In that event, the case depends upon the deed alone, without regard to the intent of the parties,
The judgment is affirmed.