Wysinski v. Mazzotta

• Decision Date: 03 April 1984
• Citation: 472 A.2d 680,325 Pa.Super. 128
• Parties: Louis WYSINSKI, Jr., and Clara Wysinski, his wife, v. Samuel MAZZOTTA, and Grace Mazzotta, his wife, Appellants.
• Court: Pennsylvania Superior Court

Page 680

472 A.2d 680

325 Pa.Super. 128

Louis WYSINSKI, Jr., and Clara Wysinski, his wife, v. Samuel MAZZOTTA, and Grace Mazzotta, his wife, Appellants.

Superior Court of Pennsylvania.

Argued Oct. 4, 1983.

Filed Feb. 10, 1984.

Reargument Denied April 3, 1984.

Mead S. Spurio, Philadelphia, for appellants.

Stephen C. Zivitz, Philadelphia, for appellees.

Before WICKERSHAM, WIEAND and LIPEZ, JJ.

WIEAND, Judge:

This is an appeal from a final decree in equity which adjudicated the location of the boundary line between lands owned by Samuel and Grace Mazzotta, appellants, and Louis and Clara Wysinski, appellees, in the City of Philadelphia. Appellees are the owners of No. 456 Parker Avenue; appellants own 456A Parker Avenue. Both lots were formerly owned by Edward Parker as part of a larger tract. On July 11, 1888, he severed the lot which subsequently became known as 456 Parker Avenue and conveyed it to William McClennen. The description in the deed was as follows:

All that certain lot or piece of ground described according to a survey thereof made June 8th 1888 by C.A. Sundstrom, Esquire, Surveyor and Regulator of the Eighth Survey District of Philadelphia Situate on the northwesterly side of Parker Avenue fifty feet wide and southwesterly side of a certain new street forty feet in width laid out and intended to be opened for Public use by the above named Edward C. Parker which said street leads into and from the said Parker Avenue at right angles thereto at the distance of one hundred and ninety-seven feet southwesterly from the southwesterly side of Ridge Avenue sixty feet wide in Roxborough in the twenty-first ward of the City of Philadelphia aforesaid containing in front or breadth on said Parker Avenue twenty feet and extending of that width in length or depth northwesterly between parallel lines at right angles to said Parker Avenue and along the said southwesterly side of said new street one hundred and twenty-five feet Bounded northwesterly and southwesterly by other ground of said Edward C. Parker northeasterly by said new street and southeasterly by Parker Avenue aforesaid which lot is part of a certain larger lot which Charles J. Hendricks et ux et al by Indenture bearing date the Thirtieth day of March A.D. 1877 and Recorded at Philadelphia in Deed Book D.H.L. No. 78 page 355 & 6 granted and conveyed unto the said Edward C. Parker in fee Together with the free and common use right liberty and privilege of said forty foot wide street as and for a passage way and water course and Public highway at all time hereafter forever. (emphasis supplied).

Title to this tract ultimately became vested in appellees by deed dated July 23, 1975 and by a correction deed dated May 5, 1976 from Anna E. Sowden. These conveyances have continued to describe the line of the forty feet wide street as being at right angles to Parker Avenue.

The adjoining lot at 456A Parker was at one time a part of the bed of the private street known as Ulmer Street. It was purchased by appellants at tax sale as the property of Edward Parker's heirs on March 18, 1974. Appellants contended in the trial court and also on appeal that parol evidence had demonstrated that the street line and hence appellees' property line lay at less than a right angle from the point where it intersected with Parker Avenue. Because of this, appellants contend, the lot of appellees narrows while their lot expands as the common boundary line extends inward from Parker Avenue. The trial court held that the original Parker deed description for lot 456, through which appellees traced their title, was neither ambiguous nor the result of mistake, and refused to permit it to be varied by appellants' parol evidence. We affirm.

In the absence of fraud, accident or mistake, the nature and quantity of the real estate interest conveyed must be ascertained from the deed itself and cannot be shown by parol. Covert Appeal, 409 Pa. 290, 295, 186 A.2d 20, 23 (1962); Highland v. Commonwealth, 400 Pa. 261, 283, 161 A.2d 390, 402 (1960), cert. denied, 364 U.S. 630, 81 S.Ct. 357, 5 L.Ed.2d 363 (1961); Johns v. Castellucci, 264 Pa.Super. 591, 596, 401 A.2d 753, 755 (1979). When the language of the deed is clear and free from ambiguity, the intent of the parties must be determined from the language of the deed. Teacher v. Kijurna, 365 Pa. 480, 486, 76 A.2d 197, 200 (1950); Detwiler v. Coldren, 311 Pa. 44, 49, 166 A. 374, 375 (1933); South Connellsville Borough, Inc., 47 Pa.Super. 350, 365 (1911). With respect to unambiguous deeds, a court must ascertain what is the meaning of the words used, not what may have been intended by the parties as shown by parol. Covert Appeal, supra 409 Pa. at 295, 186 A.2d at 23; Highland v. Commonwealth, supra, 400 Pa. at 283, 161 A.2d at 402; Kimmel v. Svonavec, 369 Pa. 292, 295, 85 A.2d 146, 148 (1952); Johns v. Castellucci, supra 264 Pa.Super. at 596, 401 A.2d at 755. To permit a variation of a deed description which is complete and unambiguous on its face, there must be evidence of a mutual mistake which is clear, precise and convincing. Central Transportation, Inc. v. Board of Assessment Appeals, 490 Pa. 486, 494, 417 A.2d 144, 147-148 (1980); In re Estate of Kostelnik, 471 Pa. 94, 99, 369 A.2d 1211, 1213 (1977). If there is mistake which is unilateral and not caused by fault of the other party, but due to the negligence of the one who acted under mistake, there is no basis for relief. McFadden v. American Oil Co., 215 Pa.Super. 44, 53-54, 257 A.2d 283, 288 (1969).

In the instant case, the trial court found that the 1888 deed to 456 Parker Avenue had been based on a survey made in 1888, that the description had not been ambiguous, that both parties had understood what was being conveyed, and that there had been no mistake at the time the conveyance was made and delivered. The language of the deed had expressed clearly that the lateral boundary lines were parallel and at right angles to Parker Avenue. Similarly, the line of the forty feet wide street which constituted one of the lateral boundaries for the land conveyed was situated at right angles to Parker Avenue. This clearly defined boundary could not be altered by the course of the private street as it had been described in a deed for a separate lot to the rear of the lot conveyed in 1888 by Parker to McClennen. Similarly, it could not be altered by a survey made three years later in 1891. We agree with the trial court that this later survey was wholly inadequate, if not irrelevant, to show mistake in the description contained in the 1888 deed. Finally, the law is clear that where there is a conflict between boundaries described in deeds from the same grantor, the deed first executed has priority, and the grantee named therein has superior title. Thompson v. Kauffelt, 110 Pa. 209, 214, 1 A. 267,...