168 Pa. Super. 484 | Pa. Super. Ct. | 1951
Opinion by
Plaintiff entered judgment upon a confession contained in defendants’ bond accompanying a purchase money mortgage. Defendants petitioned the court below to open the judgment and appealed from an order refusing relief.
By a deed following the statutory form, dated May 27, 1947, plaintiff and his wife conveyed their farm to defendants, husband and wife, describing the premises by metes and bounds, and containing a general warranty clause in addition to the words “grant and convey”. The consideration was $2500; of which $1000 was paid on April 15, 1947; $500 on the date of the deed; and for the balance appellants executed the purchase money mortgage here involved. Prior thereto, on February 21, 1947, the Governor approved plans for a State highway which ran through the farm. Subsequently, on July 27, 1947, plaintiff delivered a quit claim deed to the Commonwealth for the land within the highway and received $850 as damages. Appellants contend that they are entitled to a credit in that sum against the amount due on their purchase money mortgage, and to assert that claim they petitioned for the opening of the judgment.
The testimony is not too clear upon this point, but apparently the Governor’s approval was for the relocation of an existing State highway. Hence, that approval was “the condemnation of an easement for highway purposes”: Act of June 1, 1945, P. L. 1242, §210, 36 P.S. §670-210. At the time of the approval and condemnation plaintiff owned the land and was entitled to the damages, regardless of when they were paid. Smith v. Commonwealth, 351 Pa. 68, 40 A. 2d 383. They do not pass by a subsequent conveyance of the land although not specifically reserved. Hunter v. McKlveen, 353 Pa. 357, 45 A. 2d 222. The contract of-sale
The words “grant and convey” in a short form deed import a covenant that the premises conveyed are “freed from incumbrances done or suffered from the grantor”: Act of April 1, 1909, P. L. 91, §3, as amended by the Act of April 30, 1925, P. L. 404, §3, 21 P.S. §4. An easement may be an incumbrance. Strong v. Brinton, 63 Pa. Superior Ct. 267. But the presence of a public road upon the premises is not such an in-cumbrance or easement as will justify a vendee to cancel his contract or enable a grantee to maintain an action for the breach of a covenant. Patterson v. Arthurs, 9 Watts 152; Ake v. Mason,
That the relocated road was visible, and that appellants saw it before they completed their purchase cannot be doubted. This is clearly spelled out by the
It is unfortunate that the date of the condemnation was not solidly documented. The record of the Governor’s approval was the best evidence of that fact. However, appellants did not insist upon strict proof. They called an assistant highway engineer as their witness, and thereby vouched his credibility. On cross-examination, without objection or contradiction, he testified that the Governor approved the plans on February 21, 1947, and that the approval constituted a condemnation. In the absence of objection or contradiction, appellants cannot here question the finding of the court below on that point.
Order affirmed.
In the Ake ease the public road had been merely plotted and not opened. For an opinion by Gibson on a relatively analagous factual situation see Dobbins v. Brown, 12 Pa. 75. See also Bailey v. Miltenberger, 31 Pa. 37; Peck v. Jones, 70 Pa. 83.
Other testimony establishes that the barn and milk house were taken down in the construction of the road.