Ake v. Mason

Mr. Justice Mercur

delivered the opinion of the court, October 4th 1882.

The alleged errors are to the court having ordered and confirmed a compulsory nonsuit. The action is covenant on a deed from defendant to plaintiff, containing the words “ grant, bargain and sell.” The act of 28th May 1715, Pur. Dig. 472, declares these words “ shall be adjudged an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, freed from encumbrances done or suffered from tho grantor ... as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed.” These-words are held to create a covenant that the grantor has not done any act or created any encumbrance whereby the estate granted by him may be defeated: Lessees of Gratz v. Ewalt, 2 Binn. 95; Whitehill v. Gotwalt, 3 P. & W. 303; Dorsey v. Jackman, 1 S. & R. 50; Funk v. Voneida, 11 Id. 111; Knepper v. Kurtz, 8 P. F. Smith 484; Shaffer v. Greer, 6 Norris 370. It extends to and includes a tax for a municipal improvement assessed on the land during the grantor’s title: Id. But an entry on land by authority of the state, in the exorcise of its right of eminent domain, is not a breach of such a covenant. While the public may enjoy it as an easement, in law, unless otherwise directed by the statute, the fee still remains in the owner. Hence a covenant of warranty “ against the grantor and his heirs, and against all and every other person or persons lawfully claiming or to claim,” was held, in Dobbins v. Brown, 2 Jones 75, not to be broken by the entry and occupancy of the Commonwealth in the exercise of its right of eminent domain. Such entry is without the consent of the owner. It is an inherent right in the Commonwealth, and its exercise cannot be prevented by the owner. His remedy is compensation provided by the state: Id. An action on the covenant will not lie against the vendor: Peterson v. Arthurs, 9 Watts 152; Bailey v. Miltenberger, 7 Casey 37; Harrisburg & Potomac Railroad Co. v. Peffer, 3 Norris 295.

The evidence under which tho plaintiff claims to recover is substantially this : The conveyance to him was of a piece of ground situate on the Northeast side of Katharine Street, in Addition A, in the town of Altoona, consisting of four contiguous lots in block No. 6 in the general plan of the town, containing, in front, on Katharine Street 200 feet, and in “ depth 118, feet more or less, to line of property. Bounded Northeastward by division line of original borough; Southeastward by lot No. 8 in No. 6; South westward by Katharine Street, and Northwestward by lot No. 3 in block 6 of original plan of Altoona.” His main cause of complaint is, that before he purchased, a public avenue upon and over the northern part of the land conveyed had been laid out and confirmed absolutely by order of court; that he purchased without actual notice thereof;, and after he took possession the avenue was opened under and by virtue of a resolution of councils.

Inasmuch, however, as the avenue had been laid out and confirmed by the court, according to law, before he bought, the public record thereof was notice to him of the location, and of its liability to be opened: Bailey v. Miltenberger, supra. A resolution of councils directing the opening of a street laid down in the general plan of the town has the same force as an ordinance for that, purpose: Sower v. City of Philadelphia, 11 Casey 231. Having, then, constructive notice of the location of the avenue when ho bought, lie cannot, in covenant, recover damages for the opening thereof by the public authorities afterwards.

It is also complained that the lines fell short of the length stated in the deed. The land, however, was also bounded by known monuments on the ground. The lines were not actually run. When they are not run and marked on the ground, the conveyance goes to its calls of adjoiners, whether more or less land is thereby included than would be contained within the distances specified: Younkin v. Cowan, 10 Casey 198; Cox v. Couch, 8 Barr 147. The plaintiff testifies that the land was enclosed by a fence, designating the lines and boundaries, and he went to the ground and examined it before buying.

The further complaint that the deed covered an alley which had once been opened, and at the time the plaintiff purchased was inclosed -within the fence, rests on no solid foundation. It is not shown by what authority, either public or private, the alley was laid out or originally opened. , After the plaintiff sold a part of the land, his vendees appear to.have opened the alley for their own convenience. All the evidence in relation to the alley is too vague and unsatisfactory to give the plaintiff any cause of action arising therefrom. It follows the learned judge committed no error.

Judgment affirmed.

Sharswood, C. J., and Trunkey, J., dissented.