Kearney v. Hogan

25 A. 1076, 154 Pa. 112, 1893 Pa. LEXIS 852

• Court: Supreme Court of Pennsylvania
• Decided: February 13, 1893
• Docket: Appeal, No. 141
• Status: Published

Opinion

Pee Cueiam,

A careful examination of this record fails to disclose error. The suit was brought to recover á balance of purchase money for real estate sold by the plaintiff. The property was advertised as free of all incumbrance, and the contract of sale was made upon those terms. In point of fact, the property at the time of the sale was not free from incumbrance. There was a right on the part of a third person to have a drain pipe and water pipe across a portion of the premises, and there was a burden on the vendor to pay a portion of the expense of keeping these pipes in repair. This imposed a servitude upon the property which amounted to an incumbrance. This incumbrance was known to the vendor at the time of the sale, and he knew, or should have known, that he could not make a clear title without removing the incumbrance. As there was no time fixed for the execution of the deed and the delivery of possession, the parties must be presumed to have intended that there should have been a reasonable time allowed for that purpose. The sale was made on the 9th of December, 1890, and the incumbrance was not removed and a deed tendered until the 7th of February following. The learned judge below left it to the jury to find whether this was a reasonable time, and they have found that it was not. We do not think the plaintiff has any ground to. complain, either of the verdict of the jury, or the instructions of the court. A purchaser of real estate is not hound to wait an indefinite time, and keep his money unemployed to enable the vendor to clear his property of incumbrances. Where such incumbrance consists of a judgment or mortgage it can be removed at once by an application of a portion of the purchase money to its payment. But an incumbrance of the character of the one in this case cannot be removed in a summary manner. It may require a month or it may require a year, and it is_ unreasonable to expect the vendee to hold himself in readiness to meet his contract for an indefinite period.

An examination of the specifications fails to disclose error, We need not consider them in detail.

Judgment affirmed.