Davenport v. Whisler

Notebook, J. i pleading : demurrer. I. It is urged by appellee that the demurrer is too general and should be disregarded. We believe f^is position to be correct as to the first division or grounc] 0f demurrer. But the second ground or cause, and that which we think raises the real question in the case, is sufficiently specific. It states that the facts stated in the petition avoid the cause of action because it appears upon the face of the petition that the defendant, Shields, has [290] been discharged fr.om his obligation by the acts of Davenport and Whisler. It is claimed that the acts of Davenport and Whisler which discharged Shields from his obligation should be set out in the demurrer. This cause of demurrer refers to the statements upon the face of the petition as to the acts of Davenport and Whisler which it is claimed discharged Shields. These acts consist of the making and delivering of the deed by Whisler to Davenport, and the payment and discharge of the mortgage by Davenport. We do not think it was necessary that the demurrer should have repeated these acts. It contained an unmistakable reference to them, and this was sufficient. We are the more ready to hold the demurrer sufficient in form, because it is insisted by counsel for appellant that it was disposed of in the court below upon its merits, and not disregarded as too general, and there is nothing in the record inconsistent with such claim. II. The petition alleges that at the time of the execution of the bond Whisler was the owner in fee simple of the property and it was then incumbered by the mortgage. It is not alleged that there was any other lien, or any .defect in the title either at the time the bond was executed or at the time the deed was delivered. So far as appears from the allegations of the petition, the deed of Whisler conveyed to plaintiff a good title, and clear of. incumbrance or lien excepting the mortgage. Under these circumstances it is not a material question wdiether the deed in form complies with .the condition of the bond. We think, however, that it is not a mere release or quit-claim, but that it conveys title and in form is in substantial compliance with the bond. » 2. deed: deiivaneé. acoept" III. The petition alleges that Whisler delivered the deed to defendant. .It is now insisted that this does not imply an acceptance of the deed by plaintiff. We think it does. As the allegation is made in the petition, it would be a s'trange interpretation of language to hold that the deed was delivered but not accepted. There can be no delivery without acceptance — the one necessarily includes the other. There might be a mere manual delivery of a deed or [291] the. like by some fraud, artifice or imposition, wbicli would not include an acceptance; but the averments of this petition present no such case. 3_: effect of acceptance, IT. The'plaintiff, having accepted the deed of Whisler, in the absence of imposition or fraud, must look to the coveHants'of the deed for relief. “When the deed of conveyance has been executed, the contract is then executed, any inconsistencies between its original terms and those of the deed are, in’ general, to be explained and governed solely by the latter, into which the former is merged, and by which the parties are thereafter to be bound, and the purchaser’s only relief, either at law or in equity, from-defects or incumbrances, depends, in the absence of fraud, solely upon the covenants for title which he has received.” Rawle on Covenants for title, 605. See, also, Houghtaling v. Lewis, 10 Johns, 297; Banks v. Galharth, 10 Barr., 490; Shortz v. Brown, 27 Pa. St., 131. In our opinion the demurrer should have been sustained. Reversed.