Herdic's Appeal , 58 Pa. 211 ( 1868 )

The opinion of the court was delivered, May 9th 1868, by

Read, J.

This is a bill in equity for the specific performance of a contract by which the defendant sold the farm, on which he resided, to the plaintiff, upon certain terms and stipulations, contained in a memorandum between the said parties under seal, dated the 24th of December, A. D. 1864, modifying an agreement dated Williamsport, 30th June 1864, signed by the defendant, and an acceptance of it by the plaintiff dated the 22d August, in the same year. '

From the decree of the court below the plaintiff appeals, and assigns two errors. 1. The appointment of a surveyor to survey the entire farm of the defendant and to lay down certain pieces sold to certain persons therein named. 2. To the decree ordering that the defendant shall execute and deliver to the plaintiff,' upon receiving from him a bond and mortgage for the balance of the purchase-money, a deed for the premises excluding a reservation of twelve acres and the several lots or pieces of land in said portion of the decree mentioned and set forth.

The case was heard on bill, answer and evidence, without any report from a master, a cardinal defect in all such cases, but in the present instance remedied by the full statement of facts and findings by the learned .judge in his opinion preceding the decree now appealed from. The only part of the agreement of which the construction was disputed was this clause, “ and it is further understood and agreed between the parties that the conveyance so to be executed by said Woodward and wife shall not include in its boundaries any small lots or parcels of land which said Woodward may have sold to other parties by agreement in writing, executed more than one year previous to this date, where such parties have taken possession and made payments.”

We think the first error is not sustained, for it was entirely within the power of the court to direct such a survey to be made for its information, and in this ease it was eminently proper.

The court have found upon the evidence that certain parcels and pieces of land so surveyed and laid down are within the words and spirit of the above clause of the agreement, and they accordingly decree that the deed to be executed by defendant and wife shall exclude the reservation of twelve acres and the several lots or pieces of land mentioned in the decree with names and contents, and we see no reason to doubt the correctness of this decision. It leaves the legal title where it ought to be, in Mr. Woodward, to carry into full effect the sales thus made by him and which was never intended to be conveyed to Mr. Herdie.

We are informed that the defendant has complied with the decree so far as lay in his power.

We observe the costs in the court below are ordered to be paid by the defendant.

Appeal dismissed at the costs of the appellant, and the decree of the court below affirmed.