245 Pa. 539 | Pa. | 1914
Opinion by
The plaintiffs sued to recover the balance due upon a purchase money mortgage, and the defendant filed an affidavit of defense; the sufficiency of the latter was attacked on a rule for judgment, and this appeal is from an order refusing to make such rule absolute.
The scire facias states that the mortgage sued upon was dated November 10, 1907; that it was given by the defendant to the plaintiff, “as trustees for the bondholders of the Broad Top Coal & Iron Co.,” for the principal sum of $47,775; that, although the time for the payment of the principal had “long since elapsed,” only $5,000 had been paid thereon, and the balance, with interest from November 1,1912, was due and unpaid. The defendant averred that on “November 1, 1907, he purchased from the plaintiff certain real estate situated in the counties of Huntingdon and Bedford,” for $97,500, all of which was paid in cash except the amount secured by the mortgage in suit; that subsequently he paid $5,000 on account of this mortgage, and interest to November 1, 1912; that the property was described in his deed as follows: “All the real estate in Huntingdon and Bedford Counties, in the State of Pennsylvania, containing 2,778 acres more or less, with all personal property, corporate rights and franchises formerly belonging to the Broad Top Coal & Iron Co., which are now held by said trustees, being the same premises which......trustees in foreclosure proceedings of the lands and franchises of the Broad Top Coal & Iron Co., by deed dated May 27, 1869, and recorded......conveyed to......as trustees for the bondholders......under a certain declaration of trust......recorded......, and reference is hereby made to said deed or the record thereof for a full and particular description of the premises hereby conveyed or intended so to be”; that at the time, the “said
An original and a supplemental affidavit of defense
The question of fraud being removed, we come to the
It is not necessary in all instances that there be an
But, since the amount involved is large, and we feel obliged to enter a final judgment for the plaintiff, it seems proper to call attention to other material weaknesses in the defense, as averred. The deed at bar grants the property it purports to cover without metes or bounds, or precise location of any kind; and while it refers to a former deed for a fuller description, yet, it
Moreover, there is no averment whatever describing in any definite way just what property the defendant
The affidavits of defense present another material insufficiency, and that is in the averment concerning the value of the property alleged to be claimed by others; instead of placing a value upon each of the several pieces of land, the defendant makes a general averment that all of them put together are of a value “equal to, or nearly equal to, the amount that remains unpaid on such mortgage.” Such an averment is totally insufficient in a case of this character; for, it might well be, if the facts were properly stated, they would show a defense as to certain pieces and not as to others. Again, the averment in question is bad, because it fails to state whether the value alleged is estimated as of the time of the purchase, or as of the date of the pleading, nearly six years later. “The standard of damage is the value of the land at the time of making the contract,” or purchase (Rawle on Covenants for Title, p. 73; Bender v.
Finally, the presumption of law is that, in the absence of fraud, all prior conversations, understandings or dealings concerning the subject matter of the purchase were merged in and satisfied by the deed accepted by the defendant : Seitzinger v. Weaver, 1 Rawle, 377, 384. The affidavits of defense aver a “breach of the covenánts of warranty contained in the aforementioned deed,” but, as before stated, the deed has no covenant of general warranty; if it had, however, under the circumstances disclosed at bar, the defendant would be obliged to aver an actual eviction; and his assertion that he had been “dispossessed substantially,” would not be sufficient: Wilson v. Cochran, 46 Pa. 229; Stewart v. West, 14 Pa. 336, 339; Clarke v. McNulty, 3 S. & R. 364, 371.
We have gone into this case at some length, in order to point out the numerous material weaknesses in the affidavits of defense, which render them insufficient to prevent judgment: when able counsel have had two opportunities to state a defense, and have not succeeded in properly averring facts sufficient for that purpose, it strongly suggests the probability that there is no substantial answer to the plaintiff’s cause of action, and this presumption is strengthened in the present instance by the circumstance that, although more than six years have elapsed since the defendant’s purchase, yet, during that time, no effort seems to have been made by him to speed a final legal determination of any of the alleged outstanding claims upon his title.
The assignment of error is sustained; the order of the court below is reversed, and judgment is here entered for the plaintiff; the damages to be assessed when the record is returned to the Common Pleas.