Blatz v. Denniston , 7 Pa. Super. 310 ( 1898 )

Opinion by

Porter, J.,

We held in the case of Lehman v. Paxton, ante, p. 259, that an agreement to sell real estate “ clear of all incumbrances ” is not superseded by a deed executed pursuant to the agreement and containing only a clause of general warranty. That case rules the one before us. Here by agreement the purchaser of real estate covenanted to assume the payment of certain mortgages on the property to be conveyed. The grantee failing to perform his said promise, the grantor was obliged to discharge the balance remaining unpaid after a foreclosure sale by the sheriff under the mortgage. The grantor now sues the grantee for the amount the former was thus required to pay.

A further authority for affirming the action of the court below is found in Stockton v. Gould, 149 Pa. 68. In that case the contracting parties agreed to exchange properties and assume the mortgages respectively thereon. One of the parties after the deeds were delivered, performed his agreement by paying off the mortgage which he had assumed. The other did not. The loss thus resulting was made the subject of a suit founded on the agreement of sale. A recovery wus had and sustained.

We find in these authorities ample warrant for the entry of judgment by the court below, on the affidavit of defense.

The assignments are dismissed and the judgment affirmed.