Smith v. Donahue

Opinion by Trexler, J., Rule XIV of our court provides, “each error relied on must be specified particularly and by itself.” The assignment must be self-sustaining and not require a reference to.other parts of the record: Com. v. Mackey, 34 Pa. Superior Ct. 1. The decree should be set out in the assignment: McConahy v. W. Allegheny R. R. Co., 31 Pa. Superior Ct. 215; Monongahela Nat. Gas Co. v. Ellwood Nat. Gas & Oil Co., 43 Pa. Superior Ct. 619. The assignment of error to the final decree entered by the lower court is not in compliance with the. above rule. We quote it, “the court erred in entering a decree for complainant.” An enforcement of the rule would put an end to defendant’s appeal. We think, however, on the merits the judgment of the lower court should be sustained. The plaintiff presented his bill in equity for specific performance of a contract for the sale of real estate and prayed that the defendant be directed to pay the sum of money due under the agreement. Defendant alleged that there was a mistake in the quantity of the land; that he had bargained for three-fourths of an acre and obtained but one-half of an acre. The lower court properly held that as the purchaser had seen the visible boundaries on the ground and had the opportunity of measuring the property, he was entitled to only the lands inclosed in the boundaries described in the deed. As far back as Smith v. Evans, 6 Binney 101, it was held that the purchaser by accepting the deed, and giving a mortgage closed the transaction as far as the quantity was concerned. This was followed in Large v. Penn, 6 S. & R. 486, where it was held that when a deed contained a description (1) by natural boundaries, (2) by reference to a former partition and (3) by quantity, the quantity was the least certain and must yield. Description of land by [427] quantity does not amount to a covenant that the land shall equal the quantity mentioned in the deed. It is to the boundaries the grantee must look, he has a right to all the land within them. That case has been followed by a number of others in which the same principle is repeated. Among our own cases are, Landreth v. Howell, 24 Pa. Superior Ct. 210; Phillips v. Crist, 33 Pa. Superior Ct. 445-450. We may add the defendant entered into possession, took the deed and made no effort to rescind the contract or surrender the title. In every aspect of the case, he is bound to pay the purchase-price agreed upon and can make no deduction therefrom, by reason of deficiency of the quantity of the land. The assignments of error directed to alleged error in the findings of facts by the court below are without merit. There is sufficient testimony to sustain the conclusions of the trial judge. All the assignments are overruled, the decree of the lower court is sustained. Appellant for costs.