Smeich v. Herbst, No. 229

No. 229 | Pa. | Jun 2, 1890

Per Curiam:

The uote in controversy with its indorsements constitute one paper. Its construction was for the court, and we think the learned judge below interpreted it correctly. It was expressly stipulated that “ this note is not to be collected until the title is perfect clear on the farm I sold to Jacob D. Herbst.” There is no ambiguity in this language. So far from the title being clear, there was no title to the twenty-three acres of woodland. The description of the farm as contained in the deed omitted the woodland. The plaintiff contended, however, that the woodland passed as an appurtenant to the farm under the deed as executed. Without discussing the somewhat novel proposition that one tract of land can pass as appurtenant to another tract, there was no room to apply such a principle in this case. The woodland in question was separated from the farm conveyed by an intervening farm. That the one was not appurtenant to the other appears clearly as a matter of fact; hence we need not discuss the legal proposition apparently involved.

We do not regard it as important that the defendant entered upon the woodland, exercised acts of ownership over it, and sold some of the timber. Nor, that he had sold and conveyed part of the farm away so as to place it beyond his power to rescind. He was not seeking to rescind, nor was he bound to do so. He bought the two tracts for the single consideration of 13,800. He had a right to enter upon both, and treat them as his own. For the one tract, he has no paper title; and it was expressly agreed, and so entered upon the back of the note, that his liability thereon should be suspended until the title was perfected. The thought naturally suggests itself, that it would have been easier and less expensive for the plaintiff to have complied with his agreement, than to have embarked upon this litigation.

Judgment affirmed.