Johnston v. Callery

• Decision Date: 06 January 1896
• Docket Number: 215
• Citation: 173 Pa. 129,33 A. 1036
• Parties: Anna D. Johnston, Harvey Childs, Jr., and Wm. E. Littleton, Executors and Trustees of the Estate of Ross Johnston, Deceased, v. James D. Callery And Mary E. Sloan, Appellants,
• Court: Pennsylvania Supreme Court

33 A. 1036

173 Pa. 129

Anna D. Johnston, Harvey Childs, Jr., and Wm. E. Littleton, Executors and Trustees of the Estate of Ross Johnston, Deceased, And Mary E. Sloan, Appellants, v. James D. Callery

No. 215

Supreme Court of Pennsylvania

January 6, 1896

Argued November 4, 1895

Appeal No. 215, Oct. T., 1895, by plaintiffs, from order of C.P. No 3, Allegheny Co., May T., 1895, No. 248, discharging rule for judgment for want of a sufficient affidavit of defense. Affirmed.

Assumpsit upon an agreement to sell real estate.

Rule for judgment for want of a sufficient affidavit of defense.

Plaintiffs averred in their statement that on May 2, 1893, defendant agreed in writing to purchase two lots of ground in the 23d ward of the city of Pittsburg for the sum of $20,000. They averred that they had tendered to defendant a good and sufficient deed for the property and that they had kept and performed all the covenants of the agreement, but that defendant had refused to accept the deed or pay the purchase money. Defendant filed an affidavit of defense in which he averred as follows:

By the terms of said contract plaintiffs covenanted and agreed to sell and convey, on or before June 1, 1893, to the defendant by a good and sufficient deed in fee, clear of all incumbrances, two (2) certain lots of ground situate in the 23d ward of the city of Pittsburg, and at the time of the execution of said contract defendant paid to plaintiffs the sum of three hundred ($300) dollars on account of said contract. Defendant in making said contract was acting for the Second Avenue Traction Company, and his sole and only purpose in making the contract was to acquire said two (2) lots of ground as a site for a new power station for said company, the said property being particularly desired by said company because of its river front.

That after said contract was made, and before the 1st of June 1893, and while the title to said property was under examination, the defendant on the 19th of May, 1893, received from Johns McCleave, Esq., attorney for the Pittsburg &amp Connellsville Railroad Company, a corporation existing under the laws of the commonwealth of Pennsylvania, and having the power of eminent domain, a letter notifying the defendant that said railroad company -- the said railroad company then and there having the legal right and power and authority so to do -- had some time before that surveyed and adopted a location for a branch railroad across the said property, and that if defendant purchased it he would have to take it subject to the right of the Pittsburg & Connellsville Railroad Company to appropriate a right of way through said property for the branch railroad as located, and that the railroad company would undoubtedly build said branch railroad in the near future, and suggesting that the defendant before completing the purchase had better examine the location, then on file in the railroad company's office, to see whether or not he (the defendant) could make profitable use of the property with the branch railroad constructed upon it as located, a true copy of which said letter is attached hereto, marked Exhibit "B," and made a part of this affidavit of defense.

Acting upon the notice contained in the letter of Mr. McCleave, defendant, on the day of May, 1893, called at the office of the Pittsburg & Connellsville Railroad Company and made an examination of the plan and location of said branch railroad on file in the office of the said company, a copy of which plan and location is hereto attached, marked Exhibit "C," and made a part of this affidavit of defense.

The Pittsburg & Connellsville Railroad Company, by its engineers and surveyors, entered upon said property, as the defendant is informed by some of the officials of said railroad company, believes and expects to be able to prove upon the trial of this cause, on or about the day of , A.D. 1892, and surveyed the location shown in said plan, Exhibit "C," and the work of these engineers and surveyors, together with drawings and profiles having been reported to the company, said location was formally adopted by the unanimous vote of the directors of the said railroad company on the 4th day of April, A.D. 1892, an extract from the minutes of said railroad company and a copy of the said resolution of its board of directors being hereto attached, marked Exhibit "D," and made part of this affidavit of defense.

The construction of the said branch railroad across the property in the manner shown in the said location and plan would cut off the entire river front of said property, and practically destroy said property for the uses of a power station for the Second Avenue Traction Company.

On or before the first day of June, 1893, but after the receipt by defendant of the letter (Exhibit "B"), and after the examination by the defendant of the plan (Exhibit "C") and copy of resolution marked Exhibit "D," plaintiffs tendered defendant a deed and conveyance for the property, but defendant denies that the deed and conveyance was a good and sufficient deed and conveyance, "clear of all incumbrances," as called for in said agreement, but on the contrary, there was then and there fastened upon said property a servitude by reason of the survey and appropriation by said railroad company, of the location aforesaid, and the defendant refused to accept said deed because of the survey and adoption of the said location across the property by said railroad company and the expressed determination of said railroad company to construct said branch railroad as shown in said plan in the near future.

The defendant, being thus disappointed in his efforts to secure an incumbered title to these two lots of ground, afterwards purchased from the said plaintiffs another site for a power station for the Second Avenue Traction Company -- very near to the two lots above described -- and upon the property thus purchased the Second Avenue Traction Company has since constructed the power station which it originally desired and intended to erect upon the said two lots of ground first above described.

The defendant denies that plaintiffs kept and performed all acts, covenants and agreements which they were bound to keep under the contract aforesaid, and all averments contained in plaintiffs' statement in conflict with the statements contained in this affidavit of defense are denied.

In a supplemental affidavit of defense defendant averred as follows:

That after the survey and location by the Pittsburg & Connellsville Railroad Company of a branch railroad over and across the property referred to in the affidavit of defense filed, and after the adoption by the board of directors of said company of the location for said branch railroad as set forth in the affidavit of defense filed, that the Pittsburg & Connellsville Railroad Company on the 6th of October, A.D., 1893, served the plaintiffs with the following notice, to wit:

"To Mrs. Anna D. Johnston, widow, Harvey Childs, Jr., and Wm. E. Littleton, Executors and Trustees, and Mrs. Mary E. Sloan:

"SIR; -- Please take notice that the Pittsburgh and Connellsville Railroad Company will, on the 14th day of October, A.D. 1893, present to the Court of Common Pleas No. 3, of Allegheny County, for filing therein the bond of said railroad company; dated the 25th day of September, A.D. 1893, with the Union Trust Company as sureties in the sum of ten thousand dollars, conditioned for the payment to you of such amount of damages as you may be entitled to receive for the entering of said company upon your lands in 23d ward, Pittsburgh, Allegheny County, Pa., and establishing and constructing a branch railroad thereon, which bond has been tendered to and refused by you.

"(Signed,) PITTSBURGH & CONNELLSVILLE RAILROAD COMPANY,

"By A. H. ANDERSON, Agent."

"October 6, 1893.

And that afterwards, to wit, on the 14th of October, A.D. 1893, to November term, 1893, of the court of common pleas No. 3, of Allegheny county, a bond was filed by the said Pittsburg & Connellsville Railroad Company, conditioned for the payment of such damages as might be sustained by the location and construction of said branch railroad.

The court discharged the rule for judgment.

Error assigned was above order.

Appeal dismissed, at the costs of the plaintiffs, without prejudice, etc.

George E. Shaw and James H. Reed, P. C. Knox with them, for appellants. -- Entry by a railroad company before giving bond is a trespass, for which ejectment will lie: Williamsport R.R. v. R.R., 141 Pa. 407; McClinton v. R.R., 66 Pa. 404; Dimmick v. Brodhead, 75 Pa. 464; R.R. v. Cooper, 105 Pa. 239; Penna. R.R. v. Eby, 107 Pa. 166; W.P. & B.R.R. v. Warrell, 122 Pa. 613; Keil v. Gas Co., 131 Pa. 466.

The estate of the owner is not divested until bond is duly entered, or the land paid for: B., N.Y. & P.R. v. Harvey, 107 Pa. 319; W.P.R.R. v. Johnson, 59 Pa. 290; Fries v. R.R., 85 Pa. 73; Hoffman's App., 118 Pa. 512; Gilmore v. Pgh. etc. R.R., 104 Pa. 275; Lafferty v. R.R., 124 Pa. 297.

An affidavit of defense which is required by law or rule of court to set out the nature and character of the same, ought to aver distinctly every fact necessary to constitute a defense. Nothing should be left to inference: Peck v. Jones, 70 Pa. 83; Blackburn v. Ormsby, 41 Pa. 97; Bryar v. Harrison, 37 Pa. 233.

Real estate in Pennsylvania is held subject to the right of eminent domain and a purchaser always takes subject to that right: Bailey v. Millenberger, 31 Pa. 37; Pfingston v. Loukle, 5 Kulp, 189.

A vendor is not liable for the act of a third person committed since the date of the agreement and not shown to be justified by any right existing prior thereto: Pfingston v. Loukle, 5 Kulp, 189.

When the purchaser refuses to take...