Marino v. Moffa

68 Pa. Super. 621 | Pa. Super. Ct. | 1918

Opinion by

Orlady, P. J.,

David E. Simon was the owner of a city lot fronting on Tenth street and extending of equal width to Delhi street, the length of the lot being 69 feet and 9% inches. On November 21, 1902, he sold a part of the lot fronting on Tenth street to Marino and wife, describing it “containing in front or breadth on said Tenth street, 14 feet, 3 inches, and in length or depth, 46 feet, 6 inches, more or less, to other ground of David E. Simon.” On the same day he executed a deed to the defendant’s predecessor in title, for a lot or piece of ground fronting on Delhi street, and described it. as- ^containing in front or breadth on said street 14 fe.et, 3 inches, — and extending of that width in length a depth of 23 feet, 6 inches, more or less, to the other ground of said David E. Simon.”

The plaintiff brings this action of ejectment, giving the boundaries of the land claimed by him in detailed measurements of feet and inches, and describing certain improvements on the property at the time of his purchase. After the plaintiff’s declaration with abstract of title, and the defendant’s answer and plea had been filed, the plaintiff moved for judgment upon the pleadings, which was not resisted by the defendant. After hearing, a judgment was entered-by the court in favor of the plaintiff. While there is some confusion in the dividing lines between these two parcels, there is nothing in the defendant’s answer to challenge the detailed measurements defining the plaintiff’s title, and fie elected to have the question decided on the pleadings as .presented. The fences and buildings erected by Simon when he was the owner of both parcels of property, were of a temporary nature, erected to suit his convenience. There is nothing in the pleadings to indicate that they 'were intended as monuments to divide the properties into defined parcels. Unless such an intent is clearly shown, the calls in the deed must control and the description as fixed by Simon determined the limit of each title: Eshleman v. Rankin, 32 Pa. Superior Ct. 254; Hymen v. Gatta, 33 Pa. Superior Ct. 438. The words “more or less” have been frequently construed as words of safety and precaution, intended to cover some slight or unimportant inaccuracy, not so gross as to justify a suspicion of wilful ' deception or mistake amounting to fraud, and of which the purchaser takes the risk as to quantity. Many authorities are given in 5 Words and Phrases, 4585, and 3 Words and Phrases (N. S.), 446. As we have nothing before us but the pleadings, and the plaintiff’s declaration sufficiently identified the land sued for to enable a competent surveyor to locate it by following the description given therein, the defendant’s answer, of a suggested intention of the original grantor to define his holding by a temporary fence line, does not sufficiently aver a defense to defeat the plaintiff’s motion for judgment.

The judgment is affirmed.