Thompson v. Kaufman

• Decision Date: 18 January 1899
• Docket Number: 2-1898
• Citation: 9 Pa.Super. 305
• Parties: Franklin Thompson, Administrator d. b. n. c. t. a. of Josiah Thompson, v. William S. Kaufman and Ellen Herb, Landlord, Appellant
• Court: Pennsylvania Superior Court

9 Pa.Super. 305

Franklin Thompson, Administratord. b. n. c. t. a. of Josiah Thompson, v. William S. Kaufman and Ellen Herb, Landlord, Appellant

No. 2-1898

Superior Court of Pennsylvania

January 18, 1899

Argued November 15, 1898

Appeal by Ellen Herb, landlord, from judgment of C. P. BerksCo.-1896, No. 71, on verdict for plaintiff.

Ejectment.Before Endlich, J.

The facts sufficiently appear in the opinion of the court.

Verdict for plaintiff for the premises described in the writ.Ellen Herb, landlord, defendant, appealed.

Error assigned among others was giving binding instructions for plaintiff for the premises described in the writ.

Affirmed.

H. P Keiser, of Jacobs & Keiser, for appellant.-- In cases of latent ambiguity in a will, evidence is admissible of the facts and circumstances surrounding the testator at the time of his making his will, his family affairs, the state of his property, and his contemporaneous or subsequent declarations down to the time of his death: Patch v. White,117 U.S. 210;Vernor v. Henry, 3 Watts, 385;Wagner's Appeal, 43 Pa. 102;McAfee v. Magee, 4 Penny.94; Strubing v. Wunder, 2 Woodw.474;Brownfield v. Brownfield,12 Pa. 136;Warner v Miltenberger,21 Md. 264.

The present will shows such a latent ambiguity as will admit of parol testimony: McAfee v. Magee, 4 Penny.94;Brownfield v. Brownfield,12 Pa. 136;Warner v. Miltenberger,21 Md. 264;Aldrich v. Gaskill,64 Mass. 155;Garrison v. Garrison,29 N.J.L. 153.

Isaac Hiester, for appellee.-- This case disclosed no latent ambiguity.When the location of the land described in the deed is certain, it needs not a jury to distinguish it from another tract: Hughes v. Coal Co.,104 Pa. 212.

The rule which allows extrinsic evidence to explain the extent of the subject sold has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance: Wusthoff v. Dracourt, 3 Watts, 243;Harvey v. Vandegrift,89 Pa. 346.

The construction of a deed in which there is no ambiguity is for the court and not for the jury, but the court in construing such a deed must look at the circumstances in which the conveyance was made: Cox v. Freedley,33 Pa. 124.

Only in rare cases is the intention of the parties to be obtained from testimony dehors the instrument: Fuller v. Weaver,175 Pa. 182.

The city assessment made in pursuance of the testator's oral directions to assess the carpenter shop with the Moss street house was insufficient to enlarge the boundaries of the lot devised to Ellen Herb in the absence of any change in the lines of the property.

A demise or conveyance of a " barn" without other words being superadded to extend its meaning will pass no more land than is necessary for its complete enjoyment: Bennett v. Bittle, 4 Rawle, 339;Blackburn v. Edgley, 1 P. Wms. 603;Messer v. Rhodes, 3 Brewster, 180.

In every aspect this case represents a bold attempt on the part of Ellen Herb to seize a portion of the decedent's estate which he had not included in his devise to her, either by the terms of the will or by the marks on the ground, upon a mistaken view that the testator's loose and evidently misunderstood declarations are sufficient to establish her title.The attempt should not be allowed to succeed.

The opinion of the court below granting a new trial to the plaintiff is reported in 6 Dist. Rep. 522.

Before Rice, P. J., Orlady, Smith, W. W. Porter and W. D. Porter, JJ.

OPINION

SMITH, J.

At least that part of the declaration containing a description of the property for which this ejectment was brought together with the disclaimer if one were filed, should have been printed in the appellant's paper-book.The rules of this court, touching the manner in which paper-books should be made up, are designed to insure the presentation of a statement of the essentials of each case upon which we may rely with confidence.In the present case the point in dispute can be understood only by a precise and accurate description of the boundaries of the land.The correct location of these is the question for determination.The proper place to find this information is in the declaration.In the absence of the pleadings we take the statement of the cause of action from the charge of the court: " Josiah Thompson devised to Ellen Herb the 'house and lot situate in Moss street, No. 336,' and to his executors for sale the 'dwelling house and lot, No. 338 North Ninth street, and any other property . . . . not herein disposed of.'The land upon which both houses were erected, and out of which the respective lots were carved, was originally owned by him as an entire piece extending twenty feet wide from Ninth street eastwardly to Moss.This lot was divided by fences and other structures in such a way as to cut to the Moss street house, in addition to its width of twelve feet, a passageway of four feet wide on the south (from which a gate opened into Moss street) and some ground in the rear to a line running north and south about fifty feet west of Moss street, i. e., a lot sixteen feet wide and fifty feet deep.To the west of it was a carpenter shop and adjoining its western side a shed.Along the south side of what was cut to the Moss street house and separated by a fence, the remaining four feet of the original twenty foot lot formed an outlet from the shop and the area about it into Moss street, with a gate opening upon the same.The testator, a carpenter and a contractor, living in the house No. 329 North Ninth street, had used the shop in his business and the four-foot strip leading to Moss...