Batley v. Foerderer , 162 Pa. 460 ( 1894 )

Opinion by

Mr. Chief Justice Stebbett,

This action, on the sealed contract between the parties for the sale and purchase of the lot described therein, was brought to recover the residue of purchase money, $51,966.66, with interest from July 5, 1893.

The facts, as claimed by plaintiff, are fully set forth in his statement, to which are appended, and made part thereof, copies of the two contracts and deed therein referred tó. As specified in the original contract, the title to said lot was “ to be good and marketable and clear of all incumbrances.” In addition to the hand-money, $1,000, a payment of $25,000 on account was made about July 6,1893, leaving balance above stated. Defendant having declined to accept the deed tendered by plaintiff and delivered by him to the Industrial Trust, Title and Savings Company, as an escrow, etc., this suit was brought.

To plaintiff’s demand as presented in his statement, defendant filed a full and specific affidavit of defence which, upon a rule for judgment, etc., the learned court considered insufficient and entered judgment as follows against defendant: “Rule absolute, plaintiff to convey the lands to defendant discharged of the lien of the fourteen ground rents and the mortgage, upon tender of the balance due by defendant to him; settlement to be made within fifteen days.” From that judgment this appeal was taken; and the only errors assigned are: (1) In not discharging the rule for judgment; and (2) in entering judgment for plaintiff as above stated.

In his answer to plaintiff’s demand defendant has specified several grounds of defence. One of these is that plaintiff was unable to convey and did not convey or attempt to convey such title as under the terms of the contract defendant was entitled to, viz: a title “ good and marketable and clear of all incumbrances.” Another is that no sufficient tender of performance by plaintiff was made prior to bringing this suit.

These grounds of defence are so connected that they may be considered together; and, in the view we take of them, either is sufficient to have required the discharge of the rule for judgment. It clearly appears that the title to a portion of the lot in question was derived by sundiy mesne conveyances from the city of Philadelphia, which conveyed the same, inter alia, in fee to Richard M. Hartley, “ under and subject to the condition that no mill, faptory, brewery or distillery shall be erected on the said several lots of ground or any part or parcel thereof.”

It must be conceded that a title thus clogged with restrictions cannot be regarded as either “ good and marketable ” or “ clear of all incumbrances.” An incumbrance has been correctly defined to be “ every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.” Rawle on Cov. for Title, sec. 25. It has also been defined as, “ a burden on land depreciative of its value, such as a lien, easement or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee:” 10 Am. & Eng. Ency. of Law, 361, and cases there cited. As a general rule, party-wall contracts, and real estate improvements, either required or forbidden, are incumbrances. For example, an obligation “to keep a certain style of fencing around a lot or farm, or to erect buildings in a certain way, and like restrictions, are incumbrances which the purchaser of land may wish to be relieved of ; and the covenant against incumbrances, in its general form, covers all such land burdens. Where there is a known city ordinance inhibiting the erection of combustible buildings within certain limits, this restriction would not be deemed an incumbrance.” Ib. 370.

If the buildings specified in the condition above quoted were so described as to include only wooden structures, etc., prohibited by city ordinance or general law, perhaps, under the authority last cited, such a restriction, reasonable in itself and in harmony with the local law, would not be open to objection by the defendant; but the prohibition extends to every mill, factory, brewery or distillery without regard to the quality of the structure or the materials of which it may be composed. A fire-proof mill or factory of the most substantial and ornate construction is as positively forbidden as the most inferior wooden structure. The absolute and unqualified use incident to an unrestricted ownership in fee is thus converted into “ one clogged with conditions and restricted in its enjoyment.” As was well said by Thayer, P. J., in Lesley v. Morris, 9 Phila. 110, “ A perpetual prohibition of this kind, fastened upon property, has a tendency not only to diminish the enjoyment of the estate, but also to affect its marketable value to a considerable degree, — a degree very difficult to be measured by any pecuniary allowance to be made to the defendant, and which makes his equity incapable of accurate or reasonable adjustment in money.”

It must be evident from what has been said that the building restrictions fastened upon the title by the deed of the city to Hartley are an incumbrance thereon, and affect its market value. In addition to said restrictions the lot in question appears to have been subsequently incumbered by the fourteen ground rents and the mortgage referred to in the judgment of the court below. Such restrictions and incumbrances are surely quite foreign to a title that is either “good and marketable,” or “clear of all incumbrances.” We are therefore warranted in concluding that the title tendered to defendant was not such as under the terms of his contract he was bound to accept. If it were even doubtful, he should not be compelled to take it and assume the risks. “Every title is doubtful which invites or exposes the party holding it to litigation. ... If there be color of an outstanding title which may prove substantial, though there is not enough in evidence to enable the chancellor to say so, a purchaser will not be held to take it and encounter the hazard of litigation with an adverse claimant:”Speakman v. Forepaugh, 44 Pa. 371.

But it is suggested that a sufficient answer to all this is found in defendant’s agreement as to the number of dwellings he is to erect on the lot in question, their location, etc. We do not think so. Conceding said agreement to be a covenant, it is, at most, defendant’s personal covenant, not running with the land, nor binding on his heirs. It would be fully performed by the erection of the four houses. There is nothing in it that can be construed into an undertaking to maintain said houses or to rebuild, in case of their destruction by fire or otherwise. In that regard the clause referred to is essentially different from the building restriction in the deed to Hartley. They are wholly unlike both in quality and effect. The language employed in each respectively clearly shows how widely different they are and were intended to be.

Inasmuch as the case goes back for further proceedings, in case the plaintiff so elects, we express no opinion as to the merits of other grounds of defence relied on by defendant.

' Judgment reversed and rule for judgment discharged.