193 Pa. 94 | Pa. | 1899
Opinion by
Alexander J. Pringle, of Luzerne county, died in 1881, leaving a will whereby he devised a life estate in all his real and
“ All that lot or piece of land situated in the borough of Kingston, Luzerne county, Pennsylvania, bounded and described as follows, to wit: Beginning at a corner of Main street in the line of land of the estate of Samuel Hoyt, deceased, thence north forty-eight and one half degrees, west forty feet, thence .still along the land of the said Hoyt estate north tMrty-four .and one half degrees, west one hundred and twenty-five feet to a corner, thence south fifty-five and one half degrees, west sixty-three and five tenths feet to a corner, thence south thirty-nine degrees, east one hundred and nine feet, thence south forty-eight and one half degrees, east seventy-six feet to Main street, and thence along Main street north forty-one and three fourths degrees, east sixty-four feet to the place of beginning. All improved with one two-storied frame dwelling house, outbuildings and fruit trees thereon.”
This piece was part only of a larger tract, and was sold at public sale on November 17,1882, to Martha S. Schooley, for the price of 12,655; on report made to the court of the sale •described as quoted, it was confirmed absolutely on December 10,1882. On January 12,1883, deed was made to the purchaser by precisely the samé description as in the petition and return, which was duly recorded May 12,1888. On March 30, 1887, Martha S. Schooley, by deed recorded March 31, 1887, conveyed the same land by the same description to L. L. Rogers, this defendant and appellee. It is conceded that the land can be located by the monuments and calls on the ground, just as ■described. The corner on Main street, where the line commences at the land of Samuel Hoyt, is undisputed; also the line along the Hoyt land as adjoiner; the exact course is north forty-eight and one half degrees, west forty feet, thence still along Hoyt’s land north thirty-four and one half degrees, west 120
At the tidal, the learned judge of the court below promptly held that, on her deed, Mrs. Pringle had no case, except as to a very small piece of ground embraced in her writ; further, that if she recovered at all as to the larger lot, it must be as the life tenant of the land under the will of her deceased husband. As to defendant, he held that, whether the disputed piece was embraced by the description in her deed was a mixed question of law and fact, his view being as indicated by this excerpt from his charge:
“ This claim on the part of the defendant involves the averment that the true intention of the administrator’s sale, and of his deed to Martha S. Schooley, was to convey to her not only the land admitted by the plaintiff to have been thereby conveyed but also this strip, or rather these strips, now in contro
There was a verdict for plaintiff under peremptory instruction for the small strip about two feet wide, which without doubt was included in plaintiff’s deed, and about which there was no real controversy; but as to the larger strip or lot, which was the real subject of dispute, the verdict was for defendant, and plaintiff now brings this appeal, assigning eight errors. Seven of them become of no consequence in view of our ruling on the first.
In their third written prayer for instruction, plaintiff’s counsel asked the court to instruct the jury as follows: “ That the fifth and sixth distances in the administrator’s deed to Mrs. Schooley must yield to the fifth and sixth calls in said deed and the monuments respectively called for, to wit: ‘ The Main Road,’ and ‘ the place of beginning,’ ” to which the court gave this qualified answer: “ That is correct and is affirmed, provided you can by following this proposition under the evidence locate all the land intended as shown in the orphans’ court records and deeds to have been conveyed, but if you cannot thus locate all the land shown in the records and deeds to have been conveyed, and in order to do so must extend the fifth and sixth distances, then you may do so, and in that event you will not be governed by the proposition contained in this point.”
Was this such answer, in view of the records, writings and established and undisputed facts, as plaintiff was entitled to ?
There is no ambiguity in the description on the face of the instrument; the petition, return and deed are as precise and clear as the language of the conveyancer could make them. There was, however, a latent ambiguity, according to Bacon’s Maxims, as approvingly quoted by Sharswood, J., in Lycoming Mut. Insurance Co. v. Sailer, 67 Pa. 108: “Latens is that which seemeth certain and without ambiguity, for anything that
Besides, the purchaser was bound to see before final confirmation of the sale that the quantity of land she thought she was buying was embraced in the boundaries of her deed, as the law fixed it by the monuments on the ground. The orphans’ court, being a court of equity, would then, on complaint by her, without doubt, either have relieved her of her bargain or have enlarged the description so as to accord with her belief as to quantity. But, having accepted her deed and paid her purchase money years ago, caveat emptor must apply now, when, in effect, she sets up a deficiency in quantity as warranting her in holding possession of more land than was conveyed to her: Sackett v. Twining, 18 Pa. 199.
We agree entirely with the argument of counsel for appellee that where the record of writings constituting a conveyance, when taken altogether, on their face, show an ambiguity in the description, evidence aliunde may be resorted to to determine what was intended to be embraced in the deed, and all the authorities cited by them sustain the argument; but there is no decision of this Court that ever countenanced a disregard of the unmistakable monuments on the ground to carry out a conjee
As the case stood when given to the jury, plaintiff’s third pioint should have been affirmed without qualification, and the jury should have been instructed to render a verdict for plaintiff. Therefore, the judgment of the court below is reversed, and a v. f. d. n. is awarded.