Argued October 4, 1946. The plaintiff appeals from a decree dismissing his bill in accord with Equity Rule No. 66.*
The defendants, Maier and wife, owned a 32-acre tract of land in Allegheny County. The defendant, Isner, was a house builder desiring to build houses on the land with money borrowed from the Federal Housing Authority. The land was subject to a mortgage held by Bank of Millvale and also subject to judgments held by the plaintiff Schar. It was necessary to clear the title to the satisfaction of the Federal Authority and the Millvale Bank by satisfying the mortgage and, as to that portion of the land on which the houses were to be built, obtaining a release of the Schar judgments. Schar was willing to release the lien of his judgments on the land to be built upon, but wished to retain his lien on the land not built on. If that was the understanding, there should *Page 155
have been no difficulty in drafting appropriate contracts to accomplish the purpose. Instead of doing so, Schar released his liens without exception. The mortgage was satisfied. The houses were built and sold. The Maiers' remaining land was clear of liens and when Schar asked to have his oral understanding to the effect that he should have a lien on the unbuilt upon land carried into effect the Maiers declined. He then filed this bill to require specific performance of that oral agreement. He did not aver that the oral agreement had been omitted from the written papers by fraud, accident or mistake. The case is clearly within the rule of Gianni v. Russell,
Decree affirmed at appellant's costs.