12 Pa. Super. 66 | Pa. Super. Ct. | 1899
Opinion by
The plaintiffs alleged in tbeir statement of claim that they contracted with the defendant to convey to him a certain lot for which he promised to pay $5,000. As this allegation was not controverted in the affidavit of defense, we must assume that it expresses the whole agreement. The deed subsequently delivered was for the expressed consideration of $2,800, and by its terms the title was taken subject to a yearly ground rent of $132. Upon delivery of the deed the defendant paid $500 in cash, gave a mortgage for $2,300, and retained $2,200 of the purchase money on account of the ground rent above referred to, it being assumed by both parties that that was the exact amount required to extinguish the same. But it is undisputed that more than two years before this transaction the principal of this ground rent had been reduced to $2,000. This fact was not known to the defendant, and by inadvertence was overlooked by the plaintiffs, when the deed was delivered. As a consequence of'this mistake of fact, $200 of the purchase price of the land remains unpaid. This is not denied by the defendant, but his contention is that the plaintiffs’ remedy is not by action at law, but in a court of equity, and that all they can rightfully claim is an additional ground rent of $200. There would be plausibility in the latter contention if the defendant’s agreement had been to pay $2,800 for the land and assume payment of a ground rent of $2,200. But, as we have seen, this was not the contract. The defendant promised to pay $5,000 for the land, and when the parties met to carry out the contract elected to take the title subject to the existing charge, and to be relieved to that extent from payment directly to the plaintiffs. It is not distinctly alleged, nor is it fairly to be inferred from the clause in the deed, that the parties contemplated the creation of a new charge, or a release of the defendant from his obligation beyond the amount of the existing charge. But both parties being mistaken as to the sum required to extinguish it, and consequently as to the balance that the plaintiffs were entitled to receive, the money consideration as expressed in the deed was $200 less than the defendant promised and was legally bound to pay. The rule that a contract for the sale of land is superseded by or merged in the deed of conveyance, has no application in such a case. See Close v. Zell, 141 Pa. 390;
Judgment affirmed.