| Pa. | Nov 8, 1871
The opinion of the court was delivered, November 8th 1871, by
An affidavit of defence, which is required by law or rule of court, to set out the nature and character of the same, ought to aver distinctly either upon knowledge or information and belief, every fact necessary to constitute a defence. Nothing should be left to mere inference. The affidavit in this case does not for this reason sustain the contention of the plaintiffs in error. It does not allege that the plaintiff below knew at the time of the contract of sale of the lot, the fact that Bedford avenue as laid out in the recorded general plan of the district, passed over it, or that he concealed that fact from the defendants. There is no greater presumption that he knew it than that they knew it. The 'record in the public office was open to the inspection of all who might have an interest in it. Indeed the affidavit does not allege •except inferentially that the defendants were ignorant of it. They say merely that within a short time past they have learned the fact, but that might well be though they were told it at the time. 'That they were not informed of it before is a mere inference. There is then absolutely nothing upon which to base the argument
We have then the bare case of a sale of a lot of ground in a district, of which there is a public recorded plan, accessible to everybody, upon which a street is laid out but not yet opened, which will pass over the lot. That the actual opening of a public street or highway in virtue of the eminent domain of the state, would not be such an eviction as to entitle the vendee to maintain an action for the breach of his covenant of general warranty, is conclusively settled by the judgment of this court in Dobbins v. Brown, 2 Jones 75. On what principle then can it be a good defence to an action for the purchase-money? In England, after the execution of the conveyance, the purchaser, in case of a defect of title subsequently coming to light, is thrown exclusively upon his covenants, and cannot detain any part of the purchase-money to compensate it. Of course on his covenants of general or special warranty he has no remedy until an actual eviction ; which is one reason why the covenant that the grantor is seised in fee simple clear of encumbrances, is generally used in that country. But in Pennsylvania nothing is better settled than that a defect or encumbrance upon land not known to the vendee when he accepted the conveyance of it, may be set up as a defence to the payment of a bond given for the purchase-money, although the deed contains a covenant of general warranty: Roland v. Miller, 3 W. & S. 390. Indeed it was afterwards held in Wolbert v. Lucas, 10 Barr 73, that a purchaser who has received his deed, and given a mortgage for the purchase-money, may deduct therefrom encumbrances known to him at the time he made the contract — the previous ease of Lighty v. Shorb, 3 Penna. 447, which was supposed to establish a different doctrine, being confined, as was said in Wolbert v. Lucas, to defects appearing on the face of the title. Knowledge or ignorance of an encumbrance or a defect not appearing on the face of the title, is therefore now immaterial. The case of Patterson v. Arthurs, 9 Watts 152" court="Pa." date_filed="1839-09-15" href="https://app.midpage.ai/document/patterson-v-arthurs-6312146?utm_source=webapp" opinion_id="6312146">9 Watts 152, then expressly decides that a public road upon lots of ground which the owner had covenanted to sell and convey, is not such an encumbrance as will entitle the vendee to defalk from the amount of the purchase-money, in an action of covenant upon the agreement of sale.
It may be true, as Mr. Justice Kennedy, who was perhaps rather fond of obiter dicta, says in that case, “ that if a person purchase land, without having seen it, upon the representation of the vendor, where its value is materially lessened by a public highway being located upon it, which circumstance is concealed or not made known by the seller to the purchaser, the latter might obtain redress by an action on the case in the nature of a deceit, or in an action brought against him for the purchase-money, might have compensation made by a deduction therefrom. But it will lie
Judgment affirmed.