Perkinpine v. Hogan
| Decision Date | 11 May 1911 |
| Docket Number | 257-1910 |
| Parties | Perkinpine v. Hogan, Appellant |
| Court | Pennsylvania Superior Court |
Submitted December 20, 1910
Appeal by defendant, from order of C.P. No. 4, Phila. Co.-1910, No 1,347, making absolute rule for judgment for want of a sufficient affidavit of defense in case of David R Perkinpine v. Michael J. and Lettia P. Hogan.
Assumpsit to recover down payment on a contract for the sale of real estate.
The facts are stated in the opinion of the Superior Court.
Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.
Harry A. Mackey, for appellants, cited: Gilham v. Real Est Title Ins. & Trust Co., 203 Pa. 24.
Morris Edgar Smith, for appellee, cited: Saxton v Mitchell, 78 Pa. 479.
Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
This appeal is from judgment for want of sufficient affidavit of defense in an action of assumpsit brought to recover the down payment made by the plaintiff to the defendant upon a contract for the sale of real estate, consisting of eight lots and dwelling houses. The contract stipulated that the settlement be made on or before a specified date, and that the title be free and clear of all incumbrances, easements, mechanics' and municipal liens and building restrictions, and be such as will be insurable at regular rates by the title insurance companies. It further provided that in case of failure of title or area in any particular, in consequence of which the sale was not consummated, the deposit money should be returned. It was alleged in the statement of claim that it was found, upon investigation of the title, " that there existed an easement affecting each and all of said premises, which consisted of a sewer constructed under each of the said houses and a right to carry the said sewer over other ground not contained in this agreement," and that " upon submitting the facts to the Land Title & Trust Company the said company refused to insure the title free of said easement, and further refused to remove the question of the said easement from any settlement certificate which they would issue covering the eight houses."
1. It was suggested in the affidavit of defense that the allegation of the statement as to the easement did not state a fact but a conclusion of law. The averment that the land was subject to an easement did, it is true, involve a conclusion of law but if it was coupled with an averment of facts out of which, in the absence of other facts, such conclusion would necessarily arise, it was incumbent on the defendants to deny the facts or to confess and avoid them. The defendants did not deny the facts categorically, but in further explanation of the nature, location and purpose of the sewer, they alleged that at the time of the building of the houses there was no city sewer running parallel with the street on which they fronted, that the owner constructed a private terra cotta sewer to connect the houses with a city sewer on another street, and that they were still so connected. Taking this allegation with that of the statement, the fair implication is that the other land over which there is a right to carry this private sewer lies between the land in question and the city sewer referred to. At any rate, there is no sufficient basis in the statement of claim, or in the affidavit of defense or in both taken together, for an implication that there is a right in anyone but the owner to maintain a sewer across the land or any part of the land in question. It is said that " conveyance of any one house by the owner would be subject to the easement of the sewer passing under it from the next house above," and it is true that where a continuous and apparent servitude is imposed upon one portion of land for the benefit of another portion, by the owner thereof, who subsequently conveys the portions to different persons, the purchaser of the servient property takes it subject to the easement or servitude so imposed. But the case does not involve the application of that principle. At the time of the making of the contract and of the bringing of the suit, it was within the right of the owner to disconnect one or all the houses; the whole matter was within his control. An easement is said to be a liberty, privilege or advantage without profit which the owner of one parcel of land may have in the lands of another; or to state it from the opposite point of view it is a service which one estate owes to another -- or a right or privilege in one man's estate for the advantage or...
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EPHRATA SC. DIST. v. County of Lancaster
...to another—or a right or privilege in one man's estate for the advantage or convenience of the owner of another estate." Perkinpine v. Hogan, 47 Pa.Super. 22, 25 (1911). The land enjoying the privilege is referred to as the "dominant tenement," and the land subject to the privilege is known......
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Bruder v. Philadelphia
... ... Phila. v. Reading Co., 295 Pa. 183; Phila. v ... Merchant & Evans Co., 296 Pa. 126; Slegel v ... Lauer, 148 Pa. 236; Perkinpine v. Hogan, 47 ... Pa.Super. 22; Snyder v. Camp, 53 Pa.Super. 309; ... Cain v. Aspinwall-Delafield Co., 289 Pa. 535; ... Cohn v. May, 210 Pa. 615; ... ...
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Leh v. Burke
...Pa. 239, 246, 64 A.2d 796, 800 (1949). See also Boardman-Smith Corp. v. Sherman, 176 Pa.Super. 302, 107 A.2d 202 (1954); Perkinpine v. Hogan, 47 Pa.Super. 22 (1911). We cannot agree with appellant Burkes that the facts in the present case resemble an easement for a public road. The road was......
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Rose v. Mitsubishi Intern. Corp., Civ. A. No. 74-316.
...as to the title and the agreement does not simply call for a good and marketable title determinable by a court of law: Perkinpine v. Hogan, 47 Pa.Super. 22 (1911)." In Butler the contract referred to a specific title insurance company by name. In the within case the parties did not specify ......