Kinsel v. Kelly

91 Pa. Super. 27, 1927 Pa. Super. LEXIS 134

• Court: Superior Court of Pennsylvania
• Decided: April 28, 1927
• Docket: Appeal 134
• Status: Published

Opinion

Opinion by

Keller, J.,

Plaintiff filed this bill in equity to reform a deed which he and his wife (since dead) had executed and delivered, as tenants by entireties, to the defendant. The deed, which was intended to convey to defendant the rear portion of plaintiff’s corner lot, was so drawn as to include land on which part of plaintiff’s dwelling stood.

Defendant in his answer denied there was any mistake to be reformed, but in his testimony he admitted it was not the intention of the parties that the south line of his lot should pass through the plaintiff’s house.

The mistake being thus admitted, the question to be decided by the chancellor was, where should the true line be located. In arriving at a solution the chancellor was guided largely by the acts and conduct of the defendant himself. Immediately north of plaintiff’s house, at the time the deed was executed, was a brick walk leading east from Camp Avenue by which he and his wife gained entrance to the rear of their house. This walk the defendant did not disturb or! make use of; but he built a house on the extreme north end of his lot, and immediately north of the brick walk he planted a hedge, which served as an apparent division line between the lots, and he laid a cement walk north of the hedge to his own back door. Each party used only the walk leading to his own door. This construction of the intention of the parties was acquiesced in for four or five years without objection on the part of either until the plaintiff, following the death of his wife, who was defendant’s sister, married again and some ill feeling sprang up between him and the defendant and the latter then, for the first time, claimed that his deed gave him title to the land on which the rear of plaintiff’s house was built; when plaintiff immediately took steps looking to its reformation.

We are not convinced that the court erred in deciding that the defendant had thus indicated the northern boundary of the brick walk as the true dividing line between the properties. The evidence in the case was not voluminous, but starting, as we must, with the admission that the width of the lot along Camp Avenue, as contained in the deed, was >a mistake, how better could the real intent of the parties be ascertained than by reference to the monuments on the ground at the time of the conveyance, viz., the plaintiff’s house with its back door opening on the brick walk, and those placed on the land by the defendant him'self, viz., the hedge fence acting as a division line between the lots and the cement walk constructed for access to the rear of his house? Thebe was nothing in the evidence that would lead to the conclusion that any interference with the plaintiff’s use of his house as it was enjoyed prior to the sale of the rear of his lot was contemplated. On the other hand the defendant’s own acts justify the following conclusion of the learned court below: “Nothing more convincing can be found in the testimony, nor can any more practical deduction be drawn from the evidence, as to the real intention of the parties to this conveyance, than that such self-constructed monuments of the defendant clearly established the intended dividing line between their respective properties.”

Such being the case the defendant is in full posession of -all that it was intended he should have and no basis exists for compensating him in damages.

The assignments of error are overruled and the decree of the court below is affirmed. The costs of this appeal to be paid by appellant.