110 Pa. 147 | Pa. | 1885
delivered the opinion of the court, October 5, 1885.
We fail to discover in this record even a scintilla of evidence showing bad faith on the part of the plaintiff, and therefore it was error to leave that question to the jury. The learned counsel for the defendant says there was abundant evidence of bad faith, and refers us to the verdict as proof of the assertion. But unfortunately for that method of argument the fact of the verdict, where there is no evidence to support it, proves simply the wisdom of the rule which interdicts the submission of the controverted question to their action. Not being referred to any evidence supporting the verdict in this case we have searched the record for it with the utmost care and patience but without success.
The subject of the sale was a lot of ground in the city of Bradford. It is described in the deed from the plaintiff to the defendant in the same manner precisely as in the deed from Parsons to the plaintiff, and when the defendant sold it to Rothstein he again described it and assumed to convey it in the identical language of the previous descriptions. The description in the plaintiff’s deed from Parsons as in all the other deeds is by adjoiners and by stating the outside lines thus:
“ All that certain lot or parcel of land situate lying and being on the north side of Main street, in the pity of Bradford, Mc-Kean county and State of Pensylvania, bounded and described as follows: to-wit; commencing at a stake in north line of Main street, the south-west corner of lot of Willis & Smith ;
In Farmers & Mechanics Bank v. Galbraith, 10 Barr, 490, Gibson, C. J., said: “ The execution of a conveyance is the consummation of a purchase, after Avhich the parties have no recourse to each other except for imposition or fraud. Such is the rule established by Bailey v. Snyder, 13 S. & R., 160, and several other cases, in Avhich it was ruled that, when a conveyance has been made Avithout a survey, and a bond taken for the purchase money, the contract is definitely closed, except where the actual quantity differs so grossly from the estimate as to be evidence of deceit.” In Dickinson v. Voorhees, 7 W. & S., 353, on a sale of 3235 acres there was a defiency of 445 acres, yet it was held that, after deed made and bond delivered, the deficiency constituted no defence against the payment of the bond. In Coughenour’s Adm’rs v. Stauft, 27 P. F. S., 191, we said, Agnew, C. J.: “ Where the contract is executed by de.ed and bond or other security, taken for the unpaid purchase money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, nor can there be a recovery for an excess. The cases are numerous (citing a number). This rule, as to the closing of the contract by deed, holds even when the contract Avas for a sale by the acre.” Citing several cases.
In the present case, conceding that there was a deficiency of one {fa feet on a line of twenty feet, Ave cannot regard it as
But, in addition to the foregoing considerations, it appears that the defendant subsequently sold the property in question to one Rotlistein, describing it in the deed in the identical language by which he bought; that ho has not only never been evicted from any of the land purchased, but tlmt no demand has ever been made by bis vendee for any shortage in the property. In the description he recites that it is the same land sold by Parsons to Rodgers, and by Rodgers to himself, Olshoffsky. Moreover, the consideration named in this deed is #4,200, whereas the consideration, paid by 1dm to Rodgers, was #8,600. It does not appear that he put any improvements on the property, and apparently it seems that he sold to Roth-stein precisely what he bought from Rodgers at a profit of #600, and yet claims for a deficiency upon the theory that lie sustained damage on account of it. lie has deprived himself of the ability to restore the property to Rodgers by selling it to another, and bas tlius apparently brought himself within the rule stated in McKeen v. Beaupland, 11 Cas., 488, that, “in an action for the purchase money of lands, the defendant cannot resist the plaintiff’s right to recover on the ground of a failure of title as to a portion of the property, if lie has disabled himself from placing his vendor in statu quo by conveying the title to a third party.” We do not decide the ease upon theses later considerations, those first stated being quite sufficient to dispose of it. We tliink the plaintiff’s fourth point should have been affirmed, and the jury directed to return a verdict for the balance due on the bond with interest. All the assignments after the sixth are sustained.
Judgment reversed and a venire de novo awarded.