32 Pa. 163 | Pa. | 1858
This is an attempt to defalk from the purchase-money agreed to be paid for a tract of land, on the ground that the quantity falls short of what is mentioned in the deed.
In the receipt of March 5th 1853, which Mrs. Foster gave for the hand-money, she describes the land as the tract on which she then resided, situate in Hayfield township, “ being the property deeded to me by my late husband, and containing, as by the annexed plot, 385 acres and 16 perches, with an allowance of six per cent., less 85 acres exact measure sold by me last fall to Elias Mason, and two acres sold to Joseph Fox.”
The deed made 6th May 1853, Mrs. Foster to Mrs. Riddle, describes the tract by the adjoining owners as “ containing in all three hundred and eighty-five acres and seventeen perches and allowance, excepting therefrom eighty-five acres exact measure, heretofore sold and conveyed by me off the west end of the same to Elias Mason, and two acres sold to Joseph Fox; being the land occupied by the said William Foster (the deceased husband of the grantor) as a homestead farm.”
The deed of Mrs. Foster to Elias Mason, dated 25th June 1852, described the land conveyed to him by metes and bounds as containing 85 acres and 50 perches and allowance of six per cent., so that when it was referred to in the above cited reservation as 85 acres exact measure, it was incorrectly cited.
From the testimony of the surveyor it appears there are 90 acres and 97 perches neat measure in Mason’s piece, and 309 acres in the part conveyed to Mrs. Riddle. Her deficiency is about six acres, for which she claims to defalk against the unpaid purchase-money at the rate of $20 the acre.
We do not think she presents a case for defalcation. She purchased the homestead farm of the Fosters, not by the acre, but for a round sum of six thousand dollars. Mason’s deed was on record when she purchased, and his land laid off by a line of which the surveyor says, “ we found comers on the ground on the east line claimed by Mason which indicated Mason’s part. There is a line all the way through on the ground.” As this part purchased by Mason was off the “west end” of the homestead farm, this line must have been the dividing line between the two properties.
Notwithstanding it is inaccurately called in the reservation 85 acres exact measure, it is impossible to suppose that Mrs. Riddle expected to buy any land within his lines. They were visible on the ground as well as on the record, and what the parties meant to sell and buy was the residue of the homestead tract. This is too apparent to admit of any doubt. Nor is it alleged that there was any mistake in the boundaries of the deed, or that Mrs. Riddle has lost any of the land contained within them. The only difficulty is that on a resurvey the quantity does not hold out.
Nor does the warranty in this deed apply to the quantity, but only to the title. The quantity is mentioned by way of description, and is generally regarded as the least accurate part of the description. There has been no eviction of the defendant from any of the land within her boundaries, and no liability to eviction has been established. There is, therefore, no breach of the covenant of warranty.
The cases sustain this ruling abundantly: 6 Binn. 102; 1 S. & R. 166; 6 S. & R. 488; 13 S. & R. 140; 14 S. & R. 296; 1 W. & S. 442; and 7 W. & S. 353.
The case of White v. Lowry, 3 Casey 254, is much relied on by the defendant’s counsel, but it does not apply. That was treated as a case of eviction. The land recovered from the purchaser was considered to have been part of the consideration for the bonds in suit. If it was not so, then the case involved a fraud; if it was so, there was a good defence to the extent to which the consideration had failed.
That case belongs to a large class of adjudications in the books, a very brief summary whereof will be found in Murphy v. Richardson, 4 Casey 288.
But it is a mistake to place this case in that category. The question here is simply what was the bargain ? What was bought and sold ?
The answer derived from the papers executed is, the Foster homestead farm. It is described variously — 1st, as the property deeded to Mrs. Foster by her husband — 2d, by reference to a plot —3d, by the adjoining owners — and 4th, by the quantity. All these are points of description, but whether one or all of them be taken as defining the thing sold, what was previously granted to Mason and Fox, is to be subtracted from it. There is no more warranty of the quantity than there is of either of the boundaries. All the quantity within the boundaries was sold, but no more. The subject-matter of the contract lay there open to the eye, and whether it contained more acres or fewer than the number mentioned by way of description, it was for that the defendant agreed to pay her money. She has lost nothing of .that for which she bargained. She has got all she bought.
Her case, therefore, does not fall within or come near to those' cases, in which purchasers have been relieved from payment of purchase-money, on account of encumbrances and defects of title.
The judgment is affirmed.
