Meyers v. Robinson

[272] The opinion of the court was delivered, March 2d 1874, by Williams, J. — This case was before us on a former writ of error, and is reported in 17 P. F. Smith 9. All the questions presented by the defendant’s offer of evidence, the rejection of which is assigned as error, were then considered and decided, with the exception of that which arises on the fourth paragraph of the offer. The ejectment is for lot No. 270 in the plan of lots, called “Buena Vista,” laid out by William Robinson., Jr., under whom the plaintiffs claim title as heirs at law. The defendant offered to prove that General Robinson, being the owner of lots Nos. 270, 271 and 272, in said plan, through his agent, John Ramsey, ne-. gotiated with James Morgan for the sale of lots Nos. 271 and 272, upon condition that lot No. 270, adjoining, should be made an alley; Morgan agreeing to pay, in consideration thereof, an enhanced price for the two lots. It is not pretended, nor was it offered to be shown, that General Robinson ever made a dedication of the lot in dispute to the use of the public as an alley or highway; or that in point of fact he ever laid out and opened an alley over it, or that it was ever used as an alley by the public or by the owners of the adjoining lots. On the contrary, the defendant, in the'ninth paragraph of his offer, “proposed to show that when the sale was made to Morgan the said alley was and had been enclosed as a lot by Gen. Robinson; that Morgan put a large gate on the alley; that he used and kept it in that condition, travelling upon and over the same by himself, his employees and cattle;” (mother words, that he used it for a cattle-pen,) “until the sale to the defendant, and that» the alley remained in that condition until the vacation of the same by the Court of Quarter Sessions of Allegheny county, at March Sessions 1867.” The defendant did, indeed, allege and offer to show in the fifth and sixth paragraphs of his offer, that, in pursuance of the negotiation between Morgan and Ramsey, General Robinson did change his recorded plan so as to make lot No. 270 an alley, by calling in his deed to Morgan for the said lot as an alley; and that he subsequently recognised the said plan, as changed, by his deed to W. C. Maholm conveying lots Nos. 268 and 269, bounded by an alley located on lot No. 270. The deeds speak for themselves, and their construction cannot be varied or changed by parol. The intention of the grantor in making them is to be gathered from the language and not from evidence aliunde, showing a different intent from that expressed on their face. Both deeds refer to the recorded plan and make it a material and essential part thereof, and must, therefore, be read as if the plan was incorporated and copied into them. So far, then, from it appearing that any change was intended in the plan, the legal inference from its recital in the deeds is directly the reverse. It is clear that the deeds were executed for the purpose of conveying to the grantees the lots which they purchased, and not for the [273] purpose of changing the recorded plan by converting the intervening lot. into an alley ; and if they conveyed any right to the use of the lot as an alley, they did it by way of estoppel; and when this right was extinguished, the defendant, as shown in the opinion delivered on the former writ of error, ceased to have, any interest in the lot whatever. Did he then acquire any title to the lot under the contract proposed to be proved ? All that he offered to show, in addition to the facts disclosed by the evidence given on the former trial, was a parol contract for the lot as an alley, in consideration of the enhanced price paid for the adjoining lots, without any proof of its execution or part-performance. The offer admits, as we have seen, that the lot was never opened or used as an alley. It needs no argument to show that such a contract, if the agent had authority to make it, would be void under the Statute of Frauds, and that it could not vest in Morgan any title to the lot which would pass to the defendant as incident or appertenant to the grant and conveyance of the adjoining lots. If Morgan had no title by virtue of the alleged contract, he could convey none, and therefore the evidence was rightly rejected. Judgment affirmed.