Adams v. Barrell

• Decision Date: 12 December 1904
• Docket Number: 214-1903
• Citation: 26 Pa.Super. 641
• Parties: Adams, Appellant, v. Barrell
• Court: Pennsylvania Superior Court

26 Pa.Super. 641

Adams, Appellant, v. Barrell

No. 214-1903

Superior Court of Pennsylvania

December 12, 1904

Argued October 25, 1904

Appeal by plaintiff, from judgment of C.P. Northumberland Co.-1903 No. 172, on verdict for defendants in case of Susan K. Adams and G. C. Adams, Administrators of George A. Adams, deceased v. Annie M. Barrell and Alice Sizer.

Ejectment for land in Shamokin Township. Before Savidge, P. J.

The facts appear by Barrell v. Adams, supra, and by the opinion of the Superior Court.

The court directed a verdict for defendants.

Verdict and judgment for defendants. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

Affirmed.

S. B Boyer, for appellants.

C. C Lark, of Lark & Moser, with him D. W. Shipman, for appellee.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

MORRISON, J.

In this action of ejectment the learned court below directed a verdict against the plaintiffs and judgment being entered thereon, they took this appeal. Their counsel states the question involved thus: " The defendants or appellees purchased a certain tract of land with a number of liens thereon. Amongst others George C. Adams had the first. The consideration mentioned in the deed was $ 5,000. The liens at the time of sale and purchase amounted to $ 3,800. This sum was deducted from the price agreed to be paid, and the grantees agreed with the vendor to pay the same. This action of ejectment is brought to enforce its payment by special verdict for specific performance."

From the argument in the appellant's paper-book we find that the right of recovery rests upon the averment that the George C. Adams judgment was for purchase money and that the defendants agreed to pay the same.

The facts in this case are substantially the same as in No. 12 October Term, 1904 in which we have filed an opinion affirming the decree of the court below restraining these plaintiffs from selling the land in question on a fi. fa. issued on the George C. Adams judgment. It is unnecessary to repeat our reasons and to restate the authorities cited in that opinion. It is sufficient to say that they apply with full force to the present case. The difficulty with the plaintiff's case is that the George C. Adams judgment was never a purchase money judgment or lien. The deed from Aaron Barrell to the defendants makes no reference to it nor is there any writing in evidence, whatever, pretending to recognize the judgment as a purchase money lien. In addition to this there is not sufficient parol evidence to warrant a jury in finding that the defendants agreed that said judgment was a purchase money lien and that they would pay it. The most that can be found against the defendants, from all of the evidence, is that they knew of this judgment lien upon the land in question and that they expected to have to pay it if it was levied upon the land or its lien continued thereon. We have endeavored to show in the opinion at No. 12, October Term, 1904 that the...