Koch v. Dunkel , 1879 Pa. LEXIS 241 ( 1879 )

Mr. Justice Gordon

delivered the opinion of the court,

This was an action brought by the plaintiff, Louis H. Koch, against the defendant, Jacob Dunkel, on a covenant of general warranty in a deed, for land, executed and delivered by the latter to the former, on the 11th of June 1878. This indenture purported to convey, by certain metes and bounds, sixty-two acres and seventeen perches of land for the consideration of a round sum of nine thousand dollars. This money was fully paid at, or immediately before, the delivery of the deed, and Koch was thereupon put into possession of the premises. It was afterwards discovered, if it were not known before, that there was a deficiency in the land thus sold of some three acres and thirty-eight perches; and it is for the value of this deficiency that the present suit is brought.

Disregarding, for the present, the technicalities of this case, the explanation of the transaction is about as follows: In November 1867, Dunkel conveyed to John Cameron a strip, off the northern side of his farm, of three acres and thirty-eight perches, the same as the deficiency above stated. Cameron immediately went into possession, fenced it off, erected buildings upon it, and has occupied it ever since. Furthermore, in May 1878, Dunkel and Koch entered into articles of agreement, in pursuance of which the deed above recited was made, and in said articles the land was described as a farm of sixty acres, more or less, for which Koch agreed, on delivery of the deed, to pay nine thousand dollars. From this it is quite evident that both the courses and distances and contents of the land, as stated in the deed, were a mistake, arising, no doubt, from the copying, by the scrivener, of the original deed to Dunkel, instead of his following, as he ought to have done, the terms of the agreement. The facts above stated render this conclusion inevitable, for as Cameron was in possession and had been in possession at the time when, and many years before, Koch bought, he surely did not suppose he was purchasing Cameron’s land, and as the articles of agreement called for but sixty acres, more or less, the obvious intention of the parties was to sell and buy the farm then in Dunkel’s possession — nothing more and nothing less. This conclusion is still further fortified by the fact that the price to be paid was a gross sum, and not a certain sum per acre. Clearly, then, on the equity of the transaction, the learned judge, to whom the case was submitted, decided rightly.

But the plaintiff contends that the previous agreement was merged in the deed, and so was not competent evidence. For the present this may be conceded. In that event, the case depends upon the deed alone, without regard to the intent of the parties, except as expressed in that instrument. But the deed calls for. certain adjoinders, among which is John Cameron, and it is not. contended but that the plaintiff got all the land within these calls: but, on all authority, in the absence of original marks found upon the ground, these calls must govern, rather than the courses and distances. Adhering, then, strictly to the deed, and there is nothing upon which the plaintiff can rest but the mere discrepancy, in quantity. But as to this, in Large v. Penn, 6 S. & R. 488, it was held, that where a deed described land by natural boundaries, 'and also by quantity, there was no implied covenant that the quantity of land conveyed should equal the quantity mentioned in the deed. There, as here, after mentioning the boundaries, the deed set' forth the quantity, but it was said this was introduced, not by way of covenant, but description; and so we say here, for there is nothing in the deed before us which indicates that the quantity was introduced for any other purpose than that of description. This whole question is, however, definitely settled by the case of Kreiter v. Bomberger, 1 Norris 59, in which our brother, Mr. Justice Sharswood, áaid, in speaking of a contract for land, like the present, fully executed, “ We are of opinion that in this class the transaction cannot be ripped up without actual proof of fraud or mutual mistake.” Yet, in this case, the actual contents of the lot sold were nearly one-fourth less than the quantity called for by the deed. What then remains ? If it be said, the John Cameron lot was formerly part of the Dunkel tract, and that the call on the north may be as well answered by other land of Cameron, then we ask, how is this to be proved ? Certainly not by the deed. The call is for land of John Cameron as found on the ground when that instrument was executed, and from it we learn nothing as to how his title was acquired. His south line was well marked; the call is for that 'line, for to say that when a call is to adjacent land, it means into that land, is a perversion of terms. There would seem, therefore, to be no help for the plaintiff but a resort to oral testimony, or written testimony, extra the deed, if he would explain the circumstances surrounding the transaction, or exhibit the intent of the parties at the time when the deed was made. Yet this is just what he objects to; he finds fault with the court in admitting, on part of the defendant, the articles of agreement, though, of all other evidence, this is the most safe and the best calculated to show the intent of the parties in case of fraud or mistake, or to explain any ambiguity in the deed. For the purposes mentioned, even oral testimony would be admissible; much more the previous writings leading to the execution of the deed. As is said in Story’s Eq., vol. 1, sect. 160, “ There is less difficulty in reforming written instruments, where the mistake is mainly or wholly made out by other preliminary instruments, or memorandums of agreement. The danger of public mischief or private inconvenience is far less in such cases than it is when parol evidence is admitted. If, then, there was any ambiguity in the deed, arising from a conflict between the calls and the courses and distances, or any allegation of mutual mistake, the agreement was properly admitted. We conclude, therefore, that the learned judge, to whom this case was submitted, in all things well and properly decided it.

The judgment is affirmed.