Bosler v. Sun Oil Co.

• Decision Date: 11 January 1937
• Docket Number: 161
• Citation: 325 Pa. 411,190 A. 718
• Parties: Bosler, Appellant, v. Sun Oil Company et al
• Court: Pennsylvania Supreme Court

190 A. 718

325 Pa. 411

Bosler, Appellant, v. Sun Oil Company et al

No. 161

Supreme Court of Pennsylvania

January 11, 1937

Argued December 1, 1936

Appeal, No. 161, Jan. T., 1936, from decree of C.P. No. 5 Phila. Co., Sept. T., 1929, No. 13225, in case of Mary Irwin Bosler v. Sun Oil Company et al. Decree affirmed.

Bill in equity. Before SMITH, P.J.

The opinion of the Supreme Court states the facts.

Decree entered dismissing bill. Plaintiff appealed.

Error assigned, among others, was dismissal of exceptions to adjudication.

Decree affirmed, at the cost of appellant.

Isaac Hassler, for appellant.

Claude L. Roth, with him John Blair Moffett, for appellees.

Before KEPHART, C.J., MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE MAXEY:

This case involves an alleged mistake in a deed conveying real estate. Plaintiff, the appellant, successor to the rights of the grantor, contends that more land was conveyed than either grantor or grantee intended. Defendant the grantee, insists that it got exactly what it bargained for. Appellant's bill in equity to reform the deed was dismissed by the chancellor who heard the case, on the ground that no mutual mistake had been shown. His findings were approved by the court in banc and the decree nisi was made final. Plaintiff appealed, alleging that the chancellor's findings of fact were contrary to the evidence.

The land in question was formerly owned by Hannah B. Birchall, now deceased. It comprises about three and a half acres in Montgomery County, abutting on the west side of Old York Road, in Cheltenham Township, immediately south of Tacony Creek. In 1924, Mrs. Birchall owned this and another tract of approximately fifteen acres, north of Tacony Creek. She lived in New York City, and her nephew, Bosler, appellant's husband, lived with appellant on the land. There was a family understanding, not put into legal form, that ultimately appellant would purchase from Mrs. Birchall the entire eighteen-acre tract for $55,000, with the right meanwhile to sell off portions of it and obtain credit for the amounts so paid to Mrs. Birchall as grantor. In 1924 one Levering interested himself in effecting a sale of the portion south of Tacony Creek to appellee, the Sun Oil Company. Negotiations proceeded between Levering, Bosler and appellee's representative, culminating in the preparation of an agreement of sale, which was forwarded to Mrs. Birchall, the owner, and executed by her on September 27, 1924. One Bolton was her business adviser in New York. Throughout the negotiations in Philadelphia her attorney, Charles C. Norris, Esq., acted in her behalf.

The purchase price fixed in the agreement of sale was $25,000. To the agreement was attached a blue print survey which the parties had ordered made. This survey shows an irregular plot of ground bounded generally on the north by the creek, on the west by a railroad right-of-way, on the south by property of other parties, and on the east by Old York Road, a public thoroughfare. Along the lines enclosing the tract, on the survey as admitted in evidence, are indicated courses and distances, permitting an exact description of the property by metes and bounds. The land is shown as divided diagonally into two portions, designated respectively as tract "A" and tract "B." This was an arbitrary division, not based on anything physical on the land. The reason for the division is not indicated on the blue print, which contains no reference to the acreage or number of square feet in either or both tracts. Tract "A" contains about one and a quarter acres, without improvements of any sort, and the only access to it is over adjoining land. It is entirely disconnected from Mrs. Birchall's remaining land to the north of the creek by tract "B," which intervenes. Tract "B" contains about two and a third acres, and controls the entire highway frontage. It also includes part of the south bank of the stream and a spur or siding leading from the railroad on the west, factors of particular interest to the oil company.

The agreement refers to the blue print survey and describes the property to be conveyed by stating in minute detail, by courses and distances, the boundary line of the entire plot, both tract "A" and tract "B," without, however, referring to either as the subject matter of the intended conveyance. After describing the property as mentioned, the agreement refers to it as "containing approximately 103,275 square feet," which corresponded to the area of tract "B." This was an error if it was intended that the conveyance should include both tracts "A" and "B." Appellant contends that both grantor and grantee intended that only tract "B" should pass by the conveyance, that by the mistake of both parties the description in the agreement of sale and likewise in the deed was so worded that it included both tracts "A" and "B," and that this is shown by the fact that the area mentioned was approximately that of tract "B" without the addition of tract "A." Appellee insists that, whatever the grantor's intention was, grantee's intention was to buy the whole plot of ground, i.e., tracts "A" and "B," and if there was a mistake, it was only the grantor's. Its position is that there was no mutual mistake and as a consequence the relief sought should not have been granted.

Without discovery of the alleged mistake, settlement was had in April, 1925, and the grantor gave a deed to the property which repeated the description as contained in the agreement of sale, without having attached a copy of the survey. The deed was made to a "straw man" acting for appellee, who later conveyed to the latter by a similar deed. The description of the property by courses and distances is the controlling factor in cases of this kind. Quantity is not decisive in determining title: Large v. Penn, 6 S. & R. 488; Phillips v. Crist, 33 Pa.Super. 445; Keen v. Eaby, 254 Pa. 273, 98 A. 1040.

In the summer of 1925 Bosler arranged for his wife, the appellant, to purchase Mrs. Birchall's remaining property, the fifteen acres north of the disputed land, at the agreed price of $55,000 less the credit of $25,000 allowed appellant by reason of the sale to appellee. The description furnished by Bosler to the title company included this portion as well as tract "A," although tract "B," which had already been deeded to the oil company, separated the two, as above pointed out. The title company, which prepared the deed from Mrs. Birchall to appellant, called Bosler's attention to the fact that there was an apparent overlapping on the property described in the deed to the oil company's "straw man." Without communicating this to his wife, Bosler carried through the arrangement, and after it was consummated notified appellee, through Levering, that a mistake had occurred and asked for an adjustment. The oil company refused to acknowledge any mistake or make any adjustment of the dispute. In the latter part of 1925 Mrs. Birchall, the grantor, died, without having taken any legal action in the matter. It was not until November, 1929, that the bill for reformation was filed.

The chancellor found that no mistake had occurred in the identity of the property to be conveyed, on the part of either Mrs. Birchall, the grantor, or appellee, the ultimate grantee. The evidence to support his finding is ample. There was no suggestion that appellee was guilty of any chicane. The sole ground of complaint was mutual mistake. Plaintiff sought to show that more land had been conveyed than either party intended. Whatever may have been the grantor's intention, plaintiff's evidence fails to show that the deed does not correctly express the grantee's intention. Since the averment as to the mutual mistake is not sustained, the relief predicated on the promise of such proof had to be denied.

The witnesses who testified for appellant were Bosler, her husband, Levering, the intermediary between vendor and purchaser, Stiles, the surveyor, and Bolton, Mrs Birchall's adviser. Appellant also testified, but she knew nothing about the transaction, her husband having acted for her throughout the matter. Bosler stated that during the preliminary negotiations, in August, 1924, he talked with Cox, who represented the oil company, and the purpose at that time was to convey only a portion of the property corresponding in general to tract "B." A tentative agreement was drawn up, but the description of the property to be conveyed was so vague that the agreement had to be redrafted. A formal survey was ordered and this, when completed, was the blue print placed in evidence. But he never saw the agreement of sale as redrafted and had nothing to do with the negotiations leading up to its execution on September 27, 1924, and to final settlement in April, 1925. These were all carried out by Mrs. Birchall's Philadelphia counsel, Mr. Norris. Bosler did not attend the settlement, and it was not until months later that he saw the deed. He stated that prior to the settlement he had procured a draft of a deed from the title company, at Mr. Norris's request, which incorrectly purported to convey the whole eighteen and three quarters acres owned by Mrs. Birchall. This, of course, had to be corrected, but it has no significance in the present controversy. He first learned of the alleged mistake when the discrepancy in the deed from Mrs. Birchall to his wife was called to his attention by the title company. This was in the fall of 1925, long after the settlement with appellee. Even then he arranged for the conveyance to his wife without telling her of the cloud upon her title to tract "A." At no time, he said, was the question of a right...