27 Pa. 254 | Pa. | 1856
The opinion of the court was delivered by
It is very clear that the articles of agreement between David White and the defendants included the thirty-seven acres known as the Gaskill tract, and which was subsequently recovered in an action of ejectment brought by George Cadvealader against David White and the defendants.
It is equally clear that' this tract was not included in the deed; but as this was owing either to the fraud of the vendor, or the mistake of the scrivener (probably the latter), it does not affect the contract as evidenced by the articles of agreement.
It is unnecessary to cite authorities to prove that failure of title in part of the land sold, affords a pro tanto defence against payment of purchase-money, unless it plainly appears that the purchaser has taken the title at his own risk, for this principle is so manifestly just that it ought to be taken for granted; but even if it needed the support of authority it is abundantly sustained by the adjudications of this court. This rule is entirely consistent with the cases cited by the plaintiff in error to disprove it: Smith v. Evans, 6 Binn. 102; Ball v. McConnell, 1 Ser. & R. 166, and Dickenson v. Voorhees, 7 W. & Ser. 353, are not cases of failure of title, but of mistake and misdescription in the number of acres, which the tracts, otherwise correctly described, were supposed to contain. In the case under consideration, White sold to Lowry all the land within certain boundaries mentioned, part of which he only held by articles of agreement, and which part was subsequently recovered by the holder of the legal title. He covenanted to give a deed in fee simple for the entire body of the land, which he neither did nor could do; for part of the land sold belonged to another person, as was conclusively found by a judicial proceeding to which he was a party. To allow the whole consideration-money to be recovered from the defendants when they have got only part of what they bargained for, would be to make a contract for these parties, rather than to execute one made by themselves.
We are not called upon to notice in detail the specifications of error, as they are disposed of by what has already been said.
Judgment affirmed.