Fogal v. Swart

Opinion by Beaver, J., It clearly appears from the bill and answer that a building restriction line was established by the owner of the lots, through whom both plaintiff and defendant claim title. The plaintiff claims lot No. 11 in a plan of eighteen lots, through one D. R. Speer, who was the owner of four lots, of which it was one, and who conveyed to him February 4, 1907, the conveyance being made subject to the restriction, as contained in the plan of lots originally laid out by the owner of the land embraced in the plan, which was duly recorded. The defendant seeks to avoid the restriction, subject to which the conveyance was made to the plaintiff, upon the ground, that Speer, the plaintiff’s vendor, verbally assented to the abolition of the building line, and subsequently signed an agreement in which all the lot owners joined, agreeing to its abolition. We can find nothing in the so-called verbal assent which can be construed as an actual agreement to abolish the restriction, and even if it could be so construed," it would not have been binding upon the plaintiff’s vendor for the reason that it is within the statute of frauds. “A parol agreement between the owners of the servient and dominant tenements will not extinguish a servitude created by deed; this can be only by deed or note in writing or operation of law:” Erb v. Brown et al., 69 Pa. 216; Hudson v. Watson, 2 Pa. Superior Ct. 422. [223] As to the written agreement, it clearly appears that it was signed by the son of the plaintiff’s vendor, without authority, verbal or written, and was not called to the attention of the father until after the date of his deed to the plaintiff. It is true that the signature of the father by his son was sanctioned by the acknowledgment of the former, but this was subsequent to his conveyance to the plaintiff, and could, therefore, relate only to the three lots in the plot of the Espey farm, which he still held. The court has found, as a fact, based upon sufficient evidence, that the plaintiff purchased his lot, without notice of the abolition of the building line and without knowledge of the erection by the defendant of his building in violation of the restriction. The effort is made by the defendant to charge the plaintiff with the knowledge of certain parties interested in maintaining the restriction through whom the plaintiff purchased his lot, but the court finds distinctly, as we think, upon the clear preponderance of the evidence, that these parties did not in any way represent the plaintiff, and that he was not, therefore, bound by their knowledge. The findings of fact of the court below are all based upon the preponderance of the testimony, and the conclusions of law naturally, logically and legally follow from the facts as found. It follows that the decree is free from error and is, therefore, affirmed, and the appeal dismissed at the costs of the appellant.