9 Watts 9 | Pa. | 1839
The opinion of the court was delivered by
This is a case of some difficulty, arising from the ambiguity in the contract of the parties, as to the right of the plaintiffs below, in the spaceway of fifteen feet, north of the lot for which the deed was made. The written instruments, consisting of the proposition of the 16th of January 1832, by the testator to the plaintiff's, the contract of the 2d of April 1832, between the parties, and the deed made by the defendants to the plaintiffs, on the 30th of August 1836, are none of them, by themselves, entirely plain on this point. The deed made after the decease of Mr Colt, may be laid out of the question, for it is agreed that it merely conveyed the lot, without any reference to the spaceway. It is not necessary, however, in'order to give the plaintiffs a right in the space way, that it should have been conveyed by the deed transferring the lot. Being merely an easement, or incorporeal right in the land of another, if the written contract of the grantor bound him to leave the space-way open for the use of the buildings, it is sufficient; and it would be a fraud afterwards to attempt to withhold it from the plaintiffs.. The deed is in many cases to be considered, not as a merger of the contract, but as a part performance of it. The contract remains' binding as to the further stipulations contained in it, conferring valuable rightsym the plaintiffs, and forming part of the consideration on which they contracted to pay the purchase-money, and accept the deed.
The case depends, in my opinion, on the construction of the contract made between the parties on the 2d of April 1832, by which previous negotiations were consummated, and the terms of sale were fixed. The proposal of the 16th of January 1832, may be referred to, as well as the parol evidence, to explain such ambiguities as exist in the contract, but not to vary its essential parts. The proposal could not have the effect to alter the subsequent contract, were its terms even free, from doubt, because it was long previous to the contract; it varies from it in the extent of ground to be granted, and in other particulars; it was a mere overture which
To the proposal of the 16th of January 1832, from Mr Colt to the plaintiffs, is annexed a plan-of the lot to be sold of 38 feet by 82¶, and of the adjacent property, which expressly lays down the two spaceways—one of 15 feet on the north side of the lot, and another of 12 feet on the south side; and Mr Colt thereby offers to sell the lot “agreeably to the plan annexed.” It then goes on as follows: “ The 12 feet on the south side of the lot to be kept open for the use of the said Judah, and the said Williams. Mr Colt reserves to himself the privilege of building over the fifteen feet spaceway, between his brick building, and thirty-eight feet above-mentioned, whenever the said Williams shall erect a building in the front of his lot, by allowing him a proportionable part of the expense of the partition wall between the new buildings. Mr C. also reserves to himself the privilege of removing the bank of earth on the rear of the building. N. B.—Mr Colt’s object in offering the section of the lot to the Messrs Williams, is, that when they build on the premises, they will erect brick buildings.”
If one person proposes to sell to another a lot, carved out of a larger lot belonging to the vendor, agreeably to the specific plan, which plan lays out spaceways or passages over the proprietor’s ground adjacent to the lot, contemplating, at the same time, that the vendee will erect brick buildings, to which such spaceways and passages are immediately necessary or useful, it seems to me, it must be considered as intending the grant of the right to the vendee to use those spaceways in common with the proprietor of the adjacent lot. And the reservation-by Mr Colt, of the privilege of building over the fifteen feet spaceway into the plaintiff’s wall, leads irresistibly to the conclusion, that he intended such right to pass by the contemplated grant: since, if he did not, it was unnecessary to say any thing about the privilege of building over.'
But when we proceed further to examine the contract, we find the arrangement modified in various particulars. In the first place, the lot, instead of thirty-eight feet, is to be thirty-nine feet; and in respect to the two spaceways, it is remarkable that they are neither of them expressly contracted to be granted to the plaintiffs, but are placed, in that respect, on the same footing. That is, the right to them is left to be inferred so irresistibly, by the terms and provisions employed in respect to them, that no one can doubt they were equally in contemplation of the parties as a matter understood and agreed upon, and as comprising part of the settled plan of building between them. “It is further understood between the parties, that the said Williams have the privilege to extend their building over the spaceway, between the land above described and the north line of lot No. 2593, now owned by James Duncan, on the express condition, that the building thus extended over the
■ The parol evidence, which went to explain the ambiguities in the contract, by showing that it was the uniform understanding of Mr Colt, as well in 1830 before the contract, as in the fall of 1832 subsequent to it, that the spaceway in question was to be left open to accommodate both buildings, in conformity with his general plan, was properly received in evidence, and satisfactorily shows his understanding of the matter during his lifetime,
judgment affirmed.
