Heppenstall v. O'Donnell

Opinion by

Mb. Justice Williams,

On the sixth day of October, 1892, O’Donnell sold a tract of land in the city of Pittsburg to the plaintiff for twenty thousand dollars. Five hundred dollars of this sum was paid in band, and-the remainder was to be paid in part and in part secured by mortgage upon the delivery of the deed. A deed was tendered to the plaintiffs, on the first day of November following, which they refused, alleging that it was not such a deed as they were entitled to under the terms of the written contract. They then brought this action to recover the hand money. Their right to recover depends on whether the deed tendered to them was a compliance with the contract of sale. The specific objection pointed out is that the deed was made subject to a private way across the tract which covers sixty-one perches of the surface. This it is urged is an incumbrance of which the plaintiffs had no notice and which the vendor was bound to remove. It becomes important therefore to examine the contract in order to determine what the vendor undertook to sell and what sort of a deed is necessary to enable him to perform his agreement. Looking at the contract we find that O’Donnell agreed to sell and convey to the plaintiffs, “ in fee simple, clear of all incumbrances, all that certain piece or parcel of land situate in the eighteenth ward of the city of Pittsburg, Allegheny county, Penna., and being the same property described in deed from the Dollar Savings Bank to Malachy O’Donnell, the party of the first part hereto, dated the fifteenth day of March 1889, and recorded in the recorder’s office of said county in deed book, vol. 626, page 402, containing ten acres, together with all and singular the buildings, improvements and the other premises.” There was no description of the land sold to be found in the contract except as the description in the deed from the Dollar Savings Bank to O’Donnell was adopted and thereby practically' incorporated into it. Without this the land could not have been identified. With it the description is clear both as to its lines and some of its adjoinders, and as to the alleged servitude now complained of. We must turn therefore to this deed in order to learn what the plaintiff did buy. There we find the land fully described by the courses and distances of its exterior lines, with this addition, “ said piece of land containing ten acres including a private road of twenty-five feet width, and said road covering sixty-one perches ; the use of said road, till lawfully made vacant, is hereby passed and convejmd but not the fee simple of the same.” This is a clear statement of the situation of the land and of the existence of the private way over it that is now complained of. It is incorporated into the contract under which they purchased by being referred to and adopted as the description of what O’Donnell proposed to sell and what they proposed to buy. It is admitted that a deed was tendered to them describing the land exactly as it is described in the deed to O’Donnell. Why should they not accept it? The negotiations for the purchase of this land were pending for some dajrs. One of the plaintiffs went upon the ground to examine its situation and surface. Afterwards thejr entered into the contract, buying by the description contained in the deed under which O’Donnell acquired title, and, in the absence of fraud or mistake in the transaction such as would justify the reformation of a written instrument, they are bound by their contract as well as O’Donnell. The learned judge erred therefore in instructing the jury that the defendant failed to tender such a deed as he was bound to make in pursuance of the articles of agreement. The deed tendered was made in pursuance of the contract and was a fulfillment thereof. ■

Again the learned judge said “ The plaintiffs were not bound to search the record for the title of the defendant before signing the articles of agreement. They had a right to rely on the covenants of the defendant when the article of agreement was signed.” So far as this instruction relates to the title of the defendant it was correct. But so far as it relates to the thing sold they were bound to take notice of the description of the land which, instead of being copied at length, was adopted by an appropriate reference from the deed under which the vendor held. In Pegg v. Rist, 15 W. N. 70, the grantee had no notice of the easements and incumbrances resting on the land. He bought, in express terms, subject to the reserved right in the grantor to sell the underlying coal. He could not be compelled to take subject to other easements of which he had no knowledge. But here the fact that the way belonged to another and was not the property of the vendor was stated in the description by which the sale was made and of which they were bound to take notice. The covenant to which the learned judge refers was a covenant to make a deed in fee simple clear of all incumbrances of the land the vendor bought from the Dollar Savings Bank. He coveiiants to convey nothing else. The words of the covenant are, “ by deed of general warranty will well and sufficiently grant, convey and assure unto the said parties of the second part, their heirs and assigns, in fee simple, clear of all incumbrances, all that certain piece or parcel of land situate in the eighteenth wafd of the city of Pittsburg, Allegheny county, Penna., and being the same property as described in deed from the Dollar Savings Bank to Malachy O’Donnell” etc. The land he agreed to convey can only be ascertained by consulting the description in the deed which is thus made a part of the contract, and which is the only description to be found in the instrument. The covenant to convey in fee simple clear of incumbrances relates to the land as so described. The plaintiff had a right, as the learned judge said, “ to rely upon the covenant contained in the article of agreement,” but the description of the land was a part of the covenant. It showed to what the promise to convey in fee simple related, and the mistake made was in attempting to detach the description of the land to be conveyed from the promise to. convey.

For these reasons the judgment appealed from is now reversed.