Tenbrooke v. Jahke

• Decision Date: 23 February 1875
• Citation: 77 Pa. 392
• Parties: Tenbrooke <I>versus</I> Jahke.
• Court: Pennsylvania Supreme Court

77 Pa. 392

Tenbrooke versus Jahke.

Supreme Court of Pennsylvania.

February 9, 1875.

February 23, 1875.

February 9th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the District Court of Philadelphia: Of January Term 1873, No. 227.

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A. V. Parsons, for plaintiff in error.—A mortgage is a conveyance of the mortgaged premises, and can be defeated only by the payment of the money secured: Fluck v. Replogle, 1 Harris 405; Hersey v. Turbett, 3 Casey 418. The receipt by mortgagee of the damages was not a defence to the payment of the money secured: Young v. Baird, 4 Am. Law Reg. 384; Schober v. Saving Fund, 11 Casey 223; Brown v. Scott, 1 P. F. Smith 357; Scott v. Fritz, Id. 418; Thomas v. Harris, 7 Wright 231.

The refusal of the court to answer plaintiff's points was error: Shaeffer v. Landis, 1 S. & R. 449; Hamilton v. Menor, 2 Id. 70; Vincent v. Huff, 4 Id. 298; Smith v. Thompson, 2 Id. 49; Noble v. McClintock, 6 W. & S. 58; Slaymaker v. St. John, 5 Watts 27.

H. M. Dechert, for defendant in error.—When one purchases land, not having seen it, on the representation of the vendor, and a highway on it is concealed, in an action for the purchase-money the injury from the highway may be deducted: Patterson v. Arthurs, 9 Watts 154; Wilson v. Cochran, 10 Wright 229; Fuhrman v. Loudon, 13 S. & R. 386; Christy v. Reynolds, 16 Id. 258; Lighty v. Shorb, 3 Penna. R. 450; Dobbins v. Brown, 2 Jones 79; Murphy v. Richardson, 4 Casey 292; Note to 4 Kent 471; Rawle on Covenants for Title 289; Peck v. Jones, 20 P. F. Smith 83.

Mr. Justice PAXSON delivered the opinion of the court, February 23d 1875.

We do not find any serious error in either of the first six specifications. The seventh refers to the refusal of the learned judge to answer the points submitted to him by the counsel of the plaintiff. We think such refusal was error. The sixth and seventh points were not answered in the general charge, and should have been affirmed. A party who applies for it is entitled to a clear and distinct instruction on the rule of law applicable to his case, and it is error to withhold it: Slaymaker v. St. John, 5 Watts 27.

The remaining assignments allege error in the charge of the court. In the portion of the charge contained in the eighth specification the learned judge assumed, that there was the suppression of a material fact, and instructed the jury that said suppression entitled the defendant to a set-off in dollars and cents the injury caused to his lot by the opening of Baring street. This virtually withdrew the question of fact from the jury. It may be that the court was right in its view of the facts; but they are not incapable of another and very different interpretation. The plaintiff had purchased the lot in question at a master's sale. Public notice was given at said sale that Baring street had been laid out over this lot, and that the purchaser would be entitled to the damages. The defendant was at the master's sale and bid against the plaintiff for said lot. In addition, the defendant lived within two hundred and fifty feet of Baring street. The only knowledge the plaintiff appears to have had upon this subject, was what occurred at the master's sale, at which, as before stated, the defendant was also present. He may very well have assumed that the defendant knew Baring street had been laid out over the lot, and the price may have been fixed at what the plaintiff regarded as its value, subject to such an encumbrance. In such case there is no conclusive presumption that there was either...