273 Pa. 148 | Pa. | 1922
Opinion by
Fanny Levy died testate on December 20,1916, seized, inter alia, of the property known as 4264, 4266 and 4268 Frankford Avenue, Philadelphia. Mary Samson and Eay Young were appointed and qualified as her executors, with power to sell real estate, and, on March 8,1919, entered into a written contract to sell and convey the above-described property to Philip Green and Jacob Ash for $16,000, of which $500 was paid in hand. The contract describes the property by lot numbers only, and stipulates that the “parties hereby bind themselves, their heirs, executors and administrators, for the faithful performance of the above agreement within 90 days from the date here
The decree was rightly entered. There is and has been for over thirty years a common public alley, thirteen feet wide, extending westerly from Frankford Avenue to Griscom Street, and abutting upon the north side of lot 4268. It is paved with cement, is as visible as a public street and petitioner well knew of its existence when he made the contract, but later insisted that the executors give him a warranty deed, including one-half of the alley, freed of the public easement, or make an abatement of $1,300 from the agreed price. This being refused, Green, in September, 1919, filed a bill in equity in the court of common pleas for specific performance of the contract on the terms just stated. The bill was dismissed in December for lack of merit and because the orphans’ court has exclusive jurisdiction over such contracts by executors. Thereafter, on January 2, 1920, the executors entered into a written agreement for the sale of lots 4266 and 4268 to Alexander Mackie, a bona fide purchaser, for $15,000, on which he paid $1,000. Then, on January 29, 1920, Green for the first time tendered respondents full consideration and a deed for execution drawn subject to the public easement in the alley. It was refused. The tender came too late, especially as the property had greatly increased in value and the situation of the parties had changed. Green’s contention, that he was entitled to an abatement because of the alley, was wholly
The fact that an owner’s title to land may extend to the center of an open street or alley will not enable him to exclude the public therefrom, nor, in the absence of a special covenant, to recover damages from his grantor because of such servitude. Green bought by numbers and the lots as enclosed upon the ground exclude the alley. The alleged oral agreement that he was to have a clear title to one-half of the alley could not, if established, be specifically performed: Manufacturers L. & H. Co. v. Lamp, 269 Pa. 517; S. Dep. & T. Co. v. Coal & Coke Co., 234 Pa. 100, 108.
Furthermore, the time, which expired June 7, 1919, was made the essence of the contract and that is a sufficient answer to the petition: McKuen v. Serody et al., 269 Pa. 284. True, appellant contends, and the master found, the conduct of respondents’ attorney amounted to a waiver of that clause of the contract, but the petition
The assignments of error are overruled and the decree is affirmed at the costs of appellant.