Patterson v. Harlan

[73] Opinion, Mr. Chief Justice Paxson: This was an action of ejectment depending wholly upon documentary evidence. None of the deeds and other papers are printed in the plaintiff in error’s paper book. As, however, extracts are given from the material parts, we will decide the case upon what we have before us. The amicable partition by the heirs of Margaret Harlan recognized the streets laid down upon the city plan, but not opened. The deed of partition conveyed to Richard P. Harlan certain lots, and described them as bounded by Duncañnon and Lindley avenues and Fourth street, laid out upon the city plan, but as before stated, not opened or used. In the deed the lots are described as bounded by the streets aforesaid, with the additional clause: “ Together as respects each of the said lots of ground above granted and released, with its full proportion of the soil of the street or streets, avenue or avenues on which it is situated.” Richard P. Harlan, being so seised, mortgaged the premises to Abraham Ritter, but without inserting in the mortgage the above recited grant of the soil. The mortgage was foreclosed and the defendant below became the purchaser at the sheriff’s sale. This is his title. The sheriff’s sale did not satisfy the bond accompanying the mortgage; the assignees of the bond entered judgment thereon, took out an exeem tion for the balance unpaid, levied upon and sold a portion of the soil embraced in said streets. The plaintiff below became the purchaser at said last sheriff’s sale, and this is his title. The court below instructed the jury to find for the defendant. In this we see no error. The sale under the mortgage passed whatever title was conveyed by the deed. The omission in the mortgage of the language above quoted from the deed possesses no significance. As the mortgage was not printed in full as it should have been, we must presume it contained the description used in all such instruments: “ Being the same premises ” conveyed by the deed, etc. Aside from this, the streets and ways were appurtenant to the lots conveyed, and as between grantor and grantee, mortgagor and mortgagee, passed by a conveyance of the land bounding upon them: Lehigh St., 81* Pa. 85; Trutt v. Spotts, 87 Pa. 339. Otherwise, we would have the anomaly of a man selling lots fronting upon certain streets, and then denying his grantee [74] access to his land by closing up the streets and repudiating his own grant. We need not discuss the question how far the deed was a dedication of the street to public use, nor the extent to which such dedication would be effective without an acceptance on the part of the municipal authorities. It is sufficient to'say that there was a dedication of the streets to the use of his grantees, and neither the grantor nor those claiming under him can now be allowed to repudiate such dedication. Judgment affirmed.