McCall v. Davis

• Decision Date: 07 January 1868
• Citation: 56 Pa. 431
• Parties: McCall <I>versus</I> Davis.
• Court: Pennsylvania Supreme Court

Page 431

56 Pa. 431

McCall versus Davis.

Supreme Court of Pennsylvania.

November 21, 1867.

January 7, 1868.

November 21st 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Error to the District Court of Allegheny county: No. 111, to October and November Term 1867.

COPYRIGHT MATERIAL OMITTED

Bruce & Negley, for plaintiff in error, referred to Pennock v. Tilford, 5 Harris 456.

H. Burgwin, for defendant in error.

The opinion of the court was delivered, January 7th 1868, by AGNEW, J.

This case seems to have been submitted to the jury upon erroneous principles. Davis laid out a plan of lots called "Orchard addition to East Liberty," and sold them at auction. His map was lithographed and was exhibited to the bidders by the auctioneer, and the sales made thereon, McCall becoming the purchaser of lots 12 and 13; described in his deed as "all those town lots in the Orchard addition to East Liberty, Allegheny county, Pa., known as lots 12 and 13 on the plot of said Orchard addition." These two lots fronted upon Shakespeare street, extending back to a ten feet alley. Shakespeare street and the alley were represented on the plot as running into a street called East street, bounding the square in which these lots lay. Without East street, Shakespeare street and the alley ended in a cul de sac, and the value of the lots was thereby diminished one-third. The lithographed plan made no distinction between East street and the others laid down on the plot, all being apparently parts of one plan, as if they had been laid off by Davis on his own ground.

There was also a street called Union lane running into East street, near to the square containing the two lots, affording a southerly outlet from Shakespeare street and the alley. It, like East street, appeared to be a part of the same plan. When the sales were made upon this plot, it does not appear that any information was given that East street was not laid out by Davis and was not on his ground. It turned out afterwards that East street had not been laid off by Davis, but by others, and was changed so as to cut off its connection with Shakespeare street and the alley. On the trial McCall contended that Davis was guilty of a fraud, and if not, of a wilful deception; the sale by the plot was such a false representation of the existence and location of East street and Union Lane as entitled him to a deduction from the purchase-money of the difference in the value of the lots made by the loss of East street. The learned judge decided that there was no sufficient evidence of fraud; and instead of submitting it to the jury to find whether there was a misrepresentation of the existence of these streets, and their materiality to the purchaser, such as would justify a detention of any part of the purchase-money on the ground of a partial want of consideration, reserved it as a question of law whether there was an implied undertaking to have these streets opened which were on the grounds of other persons. This question he afterwards decided against McCall. The effect of this ruling was to deny that a sale of village lots at auction by a plan shown to the bidders, is a representation of the existence and location of the streets set out in the plan.

In this there was error.

When an owner of ground lays it off into town lots with streets and alleys for their convenient use and, sells his lots accordingly, it is a dedication of these ways to the use of the purchasers. The plan which he exhibits to the bidders is the evidence of their existence and location. In this case his deed also refers to the plot, and thus makes it a part of the description. The effect of this reference is well stated by our Brother Read in the litigated case of Birmingham v. Anderson, 12 Wright 253. Where a map or plan is thus referred to (he says) it becomes a material and essential part of the conveyance, and is to have the same force and effect as if copied into the deed. For this many cases are cited. In that case the open space, called on the plan the beach of the river and laid out apparently as a thoroughfare, controlled the plaintiff's boundary. When, therefore, Davis produced his plot to the bidders at the public sale, exhibiting East street as one of the streets in his plan, and referring to nothing on its face to correct this impression or to inform the bidders that it was laid out by others on their own ground, it was an act which affirmed, as loudly as words could speak, that this was a street...