Mylin v. Hetrick , 1924 Pa. Super. LEXIS 10 ( 1923 )

Argued November 12, 1923. This is an action in assumpsit to recover damages for breach of covenants in a deed. The defendant deeded to the plaintiff a lot in the City of Lancaster known as No. 809 East Orange Street. The property was described as having a width of sixteen feet on East Orange Street with a depth of that width "one hundred and eight feet and six inches, more or less, to a fourteen feet wide common alley." The actual depth of the lot was 100 feet on one side and one hundred and six on the other. The plaintiff claims that not only in the depth of the lot was there a discrepancy between the description in the deed and the actual extent of the lot, but that there was no alley in the rear. The learned trial judge entered a nonsuit, giving as his reason that the purchaser "knew just what he was buying before he paid for it. He got all that he bought as he saw what he was buying, and only what he did buy as the words more or less show that the measurement of the depth of the lot as mentioned in the deed might not be exactly the number of feet stated." If these statements are supported by the evidence, the conclusion arrived at was right. Where the contract is fully executed and the purchase money paid, the transaction cannot be ripped up without actual proof of fraud or mutual mistake in an essential point. The plaintiff bought the property on inspection, and the deficiency is clearly insufficient, standing alone, to justify submitting the question of fraud or mutual mistake to a jury: Rodgers v. Olshoffsky, 110 Pa. 147; Landreth v. Howell, 24 Pa. Super. 210. He received all the property within the boundaries set out in the deed: Large v. Penn, 6 S. R. 488; Keen v. Eaby, 254 Pa. 273; Smith v. Donahue, 60 Pa. Super. 424. The words "more or less" in connection with the length of the lot would lead one to conclude that the quantity between the front and rear lines was in the minds of the parties rather than the exact measure of the depth. See Rodgers v. Olshoffsky, supra; Coughenour's Adm'rs v. Stauft, 77 Pa. 191. Looking at the testimony we find that the appellant deposed that he went on the ground, "I examined it. I saw there was a gate there, and I saw there was an alley there. There was a right-of-way for an alley, a passage for some one to get in and out at the rear." The following day he paid for the deed. This shows conclusively that the plaintiff exercised his right of inspecting the property before he bought it and saw the visible monuments on the ground defining its extent.

In regard to the alley the matter presents a different phase. It appears that after plaintiff had acquired the property a neighbor built his fence out where the alley was, claiming that the alley was his property. He answered in the affirmative the question, "Is it not a fact that you moved your yard back 15 or 16 feet and closed up what was there as an alley when you bought your property?" Hill, the party, who bought the property in question from the plaintiff testified that the fence was built and the alley was closed since he bought it. If the plaintiff, having received the property with the alley bounding it on the rear was subsequently deprived of the use of the alley by his neighbor putting a fence across it, before he may hold the defendant by reason of the breach of covenant in the deed, he must show that the party who deprived him of the use of the alley had a superior right to that which the plaintiff had acquired from the defendant, and this he failed to do.

The judgment is affirmed.