Rayman v. Klare , 242 Pa. 448 ( 1913 )

Pee Curiam,

This action was to recover the hand money paid the defendants upon the execution of an agreement by them to sell to the plaintiff certain real estate. By the terms of the agreement the defendants were to convey to the plaintiff the property in question in fee simple, free from all encumbrances. The coal under the land had been sold by a prior owner with the right to mine by such means as might be necessary, and to haul through thé mine opened coal from mines that might be opened on other land; to maintain an air shaft and haul roads and to dump waste on the surface. The deed tendered by the defendants and refused by the plaintiff was subject to these coal and mining rights. It is too clear to admit of argument that the title tendered was not of the whole thing sold, and that it was subject to rights previously granted which made it not free of encumbrance. A verdict was properly directed for the plaintiff. The judgment is affirmed.