Medara v. Du Bois

Opinion by

Mr. Chief Justice Stebbett,

This action of assumpsit was brought to recover the unpaid residue of purchase money for a “ certain lot or piece of ground with the messuage or tenement thereon erected, situate on the south side of Locust street, west of Thirty-eighth street, in the Twenty-seventh ward of the city of Philadelphia, containing in front or breadth on said Locust street twenty-five feet, and extending of that width in length or depth southward one hundred and seventy-five feet to Irving street, known as No. 3816, Locust ■street,” which by written agreement of May 20, 1896, — from which the foregoing description is quoted, — the plaintiff agreed to sell, and the defendant agreed to purchase for the consideration and on the terms set forth in said agreement.

The defense that was successfully interposed in the court below was, not that plaintiff’s title to the lot “ known as No. 3816, Locust street,” described in the foregoing quotation from the agreement, was defective or unmarketable, but that the premises, as described in and conveyed by the deed tendered by plaintiff to defendant, are different from those described in said agreement, in this, that said deed does not include a narrow strip of land, three and three quarter inches wide in front, and five and a half inches wide in the rear, on the west side, which plaintiff by said agreement undertook to convey, and which should therefore be included in the description contained in the deed.

By agreement filed trial by jury was waived and the decision of the case submitted in the court below. No exceptions having been filed to the learned trial judge’s findings of fact, the question is one of law, viz : whether, upon the facts found, the title tendered to defendant is good and marketable ? The deed tendered by plaintiff purports to convey, “ All that certain lot or piece of ground with the messuage or tenement thereqn erected, situate on the south side of Locust street at the distance of one hundred and seventy-five feet eastward from the east side of Thirty-ninth street . . . .; containing in front or breadth on said Locust street twenty-five feet, and extending, of that width, in length or depth southward, between parallel lines, at right angles with said Locust street, one hundred and seventy-five feet to Irving street. Being the same premises which Edwin C. Nevin, by indenture bearing date the 29th day of May, 1894, and recorded .... etc., granted and conveyed unto the said Edward K. Medara in fee.”

It appeared from the survey procured by the defendant that the lot for which the deed aforesaid was tendered him by the plaintiff contained, as a matter of fact, twenty-five feet, six inches front, by 175 feet deep, to Irving street.

Early in 1874, the then owner of lots Eos. 381(5 and 3818, Locust street, erected thereon a pair of dwelling houses connected together by an ordinary division or party wall. In April, 1874, John W. Everman became the owner in fee of these contiguous houses and lots by purchase at sheriff’s sale. In the sheriff’s deed, the premises are described separately as “ two unfinished two-story messuages and lots of ground, with Mansard roofs, situate on the south side of Locust street, at the respective distances of one hundred and fifty and one hundred and seventy-five feet east of Thirty-ninth street, each being twenty-five feet front on Locust street, and in depth one hundred and seventy-five feet to Irving street.”

The title to both houses and lots thus concurrently acquired by Everman remained in him until March 18, 1875, when he conveyed in fee to William Thompson the eastern house and lot, describing the same as beginning 175 feet east of Thirty-ninth street, etc., and on October 23, 1875, he conveyed in fee the other house and lot to William Howell, Jr., in whom the title still remains.

The division or party wall between the two houses was finished and completed in April, 1874, and remains now as it was then. The center of said wall was and is, of course, the dividing line between the two houses. In other words, the eastern half of said wall belonged to and formed part of the house or messuage erected on the eastern lot, and the western half, in like manner, formed part of the house erected on the western lot. The division or party wall was and continues to be practically an artificial monument on the gronnd, the center of which, longitudinally, is virtually the westerly line of the one property and the easterly line of the other; so, that when Everyman conveyed the eastern house and lot to Thompson, the latter thereby acquired title to that line as the westerly line of his purchase. In like manner when Howell afterwards purchased the western house and lot he acquired exclusive title to nothing east of that line, but only to the adjoining house and lot west of said line. This necessarily follows from a proper application of the well-established rule that monuments on the ground must prevail over measurements.

Speaking of the “party wall,” in Warfel v. Knott, 128 Pa. 528, this Court said it was “ a permanent monument which fixed the location of the south line, and the north line was just twenty-two feet from [the middle of the party wall] and parallel with it.” In Lodge v. Barnett, 46 Pa. 477, Mr. Chief Justice Agnew said: “ The courses and distances in a deed always give way to the boundaries found on the ground, or supplied by proof of their former existence, when the marks or monuments are gone. So the return of a survey, even though official, must give way to the location on the ground, while the patent, the final grant of the state, may be corrected by the return of survey, and if it also differs, both may be rectified by the work on the ground. ... If titles were to depend upon the fluctuations of the compass, or errors of the chain or rod pole, upon measurements of angles or of distances, instead of the lines, monuments and marks upon the ground, it would open the door to a flood of litigation.” Nothing is better settled than the law of this state on this subject, and our books are full of cases illustrating its application to the varying facts of each.

In his first conclusion of law the learned trial judge found that, “ By the agreement of sale of May 20, 1896, the plaintiff undertook to convey to the defendant a house, No. 3816, Locust street. The fair intendment of the agreement is that it should include one half of the party wall in the west side of the premises.” Thus far ho was undoubtedly correct; but, when he proceeded to ignore the fact that the party wall is a monument on the ground, and gave controlling effect to the line as shown by the survey alone, he was just as clearly wrong, and the result was that his first conclusion of law, as a whole, is clearly erroneous. Substantially, the same error underlies the second conclusion of law. Oil the contrary, he should have held that the owner and builder of the twin houses designed to be occupied as separate dwellings, having located and constructed the dividing wall between them as he did, must be held to have intended the same for a party wall, and the center line thereof extended longitudinally from street to street, to be the dividing line between the two properties; and that the first vendee of Everman, the purchaser at the sheriff’s sale, acquired a title in fee to one half of said wall and the house and lot east of said line. In principle, at least, this would have been in harmony with the decision of this Court in Western Nat. Bank’s Appeal, 102 Pa. 171, 182.

If the former owner, in improving the two lots, had been careful to locate the center line of the party wall between the two houses, on what now appears by the survey to be the line between the two lots, no question of discrepancy or interference would probably have arisen. Put when the twin houses were being erected he owned both lots, and the houses happened to be so located that the center line of the party wall appears to be a few inches west of the line between the two lots, as shown by the survey. By the sheriff’s sale in 1874, both lots, with the buildings thereon erected, passed concurrently to Everman, who, while thus invested with the title to both houses and lots, conveyed the eastern property to William Thompson by a deed which, properly construed, conveyed the whole of the eastern house and lot, located east of the center line of said party wall, extended from street to street. By that conveyance said line was adopted as the dividing line between the two lots and the improvements thereon, in lieu of a line located solely by the distance and angles shown on the survey; and, so far as appears, that adopted line has continued to be the true and correct dividing line between said properties ever since.

The deed that was tendered to the defendant substantially conforms in tenor and effect to the other conveyances in the chain of title from the sheriff to Everman, and from the latter, through the mesne conveyances, to the plaintiff, and is quite sufficient to convey in fee to the defendant the whole of the eastern “messuage” or house from the ivestern boundary thereof, at the center line of the party wall, and the land upon which said house stands, together with the residue of the lot on the easterly side of said center line extended northerly to Locust street and southerly to Irving street. In other words, the deed is quite sufficient to vest in the defendant a good and marketable title to said eastern house and lot known as No. 8816, Locust street; being the same property that was conveyed by Everman to Thompson, and lying east of the center of said party wall, extended aforesaid.

Without further elaboration, it follows from what has been said that the judgment of the court below cannot be affirmed. It is accordingly reversed, and judgment is.now entered in favor of the plaintiff and against the defendant for $8,989.98, the amount found by the court below, with interest from June 19, 1896, upon the payment of which the plaintiff shall deliver to the defendant the deed tendered to the latter.